Rodel E. RODIS, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, a municipality; Liddicoet, Officer, San Francisco Police Officer; Barry, Sergeant, San Francisco Police Sergeant; Alex Fagan, San Francisco Police Chief, Defendants-Appellants, and San Francisco Police Department, Defendant, 499 F.3d 1094

D.W. NELSON, Circuit Judge: Rodel E. Rodis brought suit against the City and County of San Francisco, the San Francisco Police Department, the police chief, and two police officers under 42 U.S.C. § 1983 alleging a violation of his Fourth Amendment rights during a February 17, 2003 arrest. The district court dismissed the suit against the City and the police chief, but it rejected an assertion of qualified immunity by two of the officers (“Defendants”). Defendants brought an interlocutory appeal, and we affirm, finding the Defendants not entitled to qualified immunity. I.

FACTUAL & PROCEDURAL BACKGROUND Rodis is an attorney and an elected public official who sits on the Community College Board of the San Francisco City College. On February 17, 2003, Rodis entered a drugstore near his office to purchase a few items. He tendered to the cashier a $100 bill, and she examined it for authenticity. Because it was an old bill (a 1985 series), and because it appeared to have a texture different than bills with which the cashier was familiar, she asked the store manager for assistance. The manager came to the counter and examined the bill.

Suspecting that it might be counterfeit, the manager took the bill to an office in the back of the store to compare it to other $100 bills from the store’s safe. While the manager was examining the bill, Rodis pulled another $100 bill from his wallet and paid the cashier. After determining that the second bill was authentic, the cashier gave Rodis his change, receipt, and items. Rodis then waited for the manager to return with his bill.

After comparing Rodis’s bill with similar bills, the manager returned to the front of the store and tested the bill with a counterfeit detector pen, which indicated it was authentic. Nevertheless, the manager remained suspicious because of the bill’s appearance and texture. The manager told Rodis he thought the bill might be fake and he was going to call the police so that they could settle the issue. Rodis was frustrated with the delay but remained in the store willingly until the officers arrived. Sergeant Jeff Barry and officer Barbara Dullea arrived first on the scene.

Officers Michelle Liddicoet and James Nguyen arrived soon thereafter. The drugstore’s employees conveyed to the officers their suspicions regarding the bill. The manager told Nguyen he had compared the bill to another and was uncertain about the bill’s authenticity. The officers also examined the bill themselves. They concluded it was probably counterfeit, but because they were not certain, the officers decided it would be necessary to call the United States Secret Service to get an expert opinion.

Before doing so, however, they arrested Rodis for violating 18 U.S.C. § 472, which criminalizes the possession and/or use of counterfeit currency, because the officers believed it would be easiest to continue the investigation from the police station. Notably, no effort was made to investigate whether Rodis intended to use an ersatz bill or whether he believed the bill to be counterfeit. Furthermore, the officers never asked to see the other $100 bill Rodis had used to complete the purchase, nor did they ask to see the bills the manager stated he had compared with the bill in question.

Liddicoet and Nguyen handcuffed and transported Rodis in the back of a squad car to the police station. Once they arrived, the officers restrained Rodis in a holding area while Nguyen called the Secret Service. Unable to speak with an agent right away, Nguyen left a message requesting assistance, and after twenty to thirty minutes, a Secret Service agent returned the call. Nguyen and the agent discussed the details of the bill in question for five to ten minutes, during which the agent confirmed that the bill was in fact genuine.

The officers released Rodis from custody, and Nguyen drove him back to the drugstore. On October 1, 2003, Rodis filed suit against the City and County of San Francisco, then Chief of Police Alex Fagan, Sergeant Barry, and Officer Liddicoet. The complaint alleged false arrest and excessive force in violation of Rodis’s Fourth Amendment rights, conspiracy to violate Rodis’s rights, injunctive relief, and several state law claims, including false arrest and intentional and negligent infliction of emotional distress. On February 11, 2005, the defendants moved for

summary judgment, and on March 22, 2005, the district court granted the motion as to Rodis’s conspiracy, municipal liability, and injunctive relief claims. The district court denied the motion in all other respects, holding that because the officers lacked evidence regarding Rodis’s intent to defraud, probable cause was lacking and the arrest was unlawful. The court also found Barry and Liddicoet not entitled to qualified immunity because the illegality of the arrest was clearly established at the time. II. DISCUSSION A. Jurisdiction & Standard of Review Normally, a district court’s interlocutory order denying a motion for

summary judgment is not immediately appealable. Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir.2006). There is an exception, however, when a defendant’s motion for

summary judgment on the basis of qualified immunity is denied. Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir.2003); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under this exception, we have jurisdiction pursuant to 28 U.S.C. § 1291, Behrens v. Pelletier, 516 U.S. 299, 301, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), and we review the qualified immunity determination de novo. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996). B.

Defendants are Not Entitled to Qualified Immunity Qualified immunity serves as a defense to § 1983 claims against government officers “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). To determine whether qualified immunity applies, we engage in a two-part inquiry: [W]e first must ask whether a constitutional right would have been violated on the facts alleged.

If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. If a constitutional violation is established, we consider whether that right was clearly established such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. This inquiry is wholly objective.... Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir.2006) (internal citations and quotation marks omitted); see also Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Defendants argue they are entitled to qualified immunity because (1) they did not violate Rodis’s constitutional rights, and (2) even if they did not have probable cause to arrest him, at the time of the arrest the law was not clearly established such that a reasonable officer should have known the arrest violated the Fourth Amendment. However, arresting Rodis without any evidence he intended to use the bill to defraud the store or that he knew (or believed) the bill was fake was a violation of his Fourth Amendment rights.

Further, it was clearly established at the time of the arrest that Defendants’ conduct was unlawful. Thus, both arguments Defendants put forth are without merit. 1. Defendants did not have probable cause to arrest Rodis. Defendants concede they arrested Rodis without evidence he used the bill with the intention to defraud or that he believed the bill to be fake. They also concede the arrest required probable cause as it was more than merely an investigatory stop. To be entitled to qualified immunity, therefore, Defendants must show probable cause existed absent any evidence of Ro-dis’s intent or knowledge.

This they cannot do. Defendants’ argument can be summarized in the following manner. First, they cite our decision in United States v. Thornton, 710 F.2d 513, 515 (9th Cir.1983), for the premise that probable cause does not require specific evidence of every element of an offense. Second, they posit that only where “specific intent” is an element of the offense, is evidence of intent required for probable cause, citing our holding in Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir.1996).

Third, Defendants contend that 18 U.S.C. § 472 is not a specific intent crime, and, therefore, evidence regarding Rodis’s intent or knowledge was not required to establish probable cause. By focusing on the distinction between specific and general intent, Defendants lose sight of the principal inquiry: whether they had probable cause to effectuate an arrest. Probable cause cannot be determined by applying “precise definitionfs]” or rigid classifications of conduct, as Defendants suggest, “because it deals with probabilities and depends on the totality of the circumstances.” Maryland v.

Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). Indeed, “probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Thus, the specific circumstances surrounding the arrest are an indispensable part of the analysis: “[W]e examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Pringle, 540 U.S. at 371, 124 S.Ct. 795 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

A review of the record reveals that the circumstances surrounding Rodis’s arrest fell far short of creating a “fair probability” he had committed any crime, much less the crime in question. See United States v. Rodriquez, 464 F.3d 1072, 1078 (9th Cir.2006) (“Probable cause exists when there is a fair probability or substantial chance of criminal activity.”). Rodis was arrested on suspicion of violating 18 U.S.C. § 472.

It was clear well before Rodis’s arrest that “[t]o support a conviction for possession of counterfeit currency with intent to defraud under ... § 472, the government must prove three elements: (1) possession of counterfeit money; (2) knowledge, at the time of possession, that the money is counterfeit; and (3) possession with intent to defraud.” United States v. Rodriguez, 761 F.2d 1339, 1340 (9th Cir.1985); see also Albillo-Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir.2000) (reciting same three required elements); United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.1979) (per curiam) (same).

Therefore, to violate § 472, the defendant must not only possess or pass counterfeit money, but he must know the money is counterfeit and he must intend to use the money to defraud another. Notwithstanding the statute’s three requirements, Defendants assert they had probable cause to arrest Rodis based solely on evidence suggesting the bill might have been fake. Specifically, they point to the manager’s suspicion that the bill was counterfeit, the fact Rodis used the bill to pay for small items, and the officers’ own “diligent” and “independent” examination of the bill.

Although it is not clear whether this evidence was enough to create the fair probability the bill was fake, even if we assume it was, this evidence speaks to only one of the three elements of the offense; indeed, these facts have no bearing on the crime’s two mens rea components (i.e., knowledge and intent to defraud), which are indispensable in the probable cause calculus. See Gasho, 39 F.3d 1420, 1429 (9th Cir.1994) (opining, in the context of a probable cause inquiry, “[i]t is fundamental that a person is not criminally responsible unless criminal intent accompanies the wrongful act”); Morissette v.

United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (noting that a crime is the “concurrence of an evil-meaning mind with an evil-doing hand”). Defendants are correct that not every element required for a conviction is necessarily required to establish probable cause. See Thornton, 710 F.2d at 515. However, this rule must be applied with an eye to the core probable cause requirement; namely, that “under the totality of the circumstances, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime.” Hart v.

Parks, 450 F.3d 1059, 1066-67 (9th Cir.2006). The record shows, and Defendants concede, they had no evidence whatsoever demonstrating that Rodis intended to use the bill to defraud the store, nor was there any reason to believe Rodis believed the bill was fake. Of course, the dearth of evidence regarding the mens rea elements is not surprising given that (1) the officers did not even attempt to investigate Rodis’s state of mind before arresting him, and (2) the bill was in fact genuine.

What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years.

He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store. Liddicoet told him she knew who he was and that he “should be ashamed” of himself. Thus, the officers’ knowledge regarding Rodis’s identity and background discounted any probability that Rodis might have intentionally passed a fake bill.

Defendants argue that this information is irrelevant because police officers do not provide favored treatment based on a person’s identity. Rodis was not entitled to special treatment, however, nor did he request it. Instead, Rodis’s strong ties to the local community should have been incorporated into the probable cause determination because all the facts known to the officers were relevant. See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (reiterating that probable cause requires analysis of “the totality of the circumstances”).

In any event, even without knowledge of Rodis’s identity and local ties, based on the totality of the other relevant facts, no reasonable or prudent officer could have con-eluded that Rodis intentionally and knowingly used a counterfeit bill, especially when “[t]he key element of

section 472 is its mens rea, the specific intent to defraud.” United States v. DeFilippis, 637 F.2d 1370, 1373 (9th Cir.1981). Without at least some evidence regarding the knowledge or intent elements of the crime, probable cause is necessarily lacking. To hold otherwise would render any individual vulnerable to arrest who unknowingly, through the normal stream of commerce, comes to possess or use a counterfeit bill, even if other circumstances suggest that a crime has not been committed. This is not and cannot be the law. See United States v.

Lorenzo, 570 F.2d 294, 299 (9th Cir.1978) (“The mere passing of a counterfeit Kill is not a criminal offense.... ”). 2. At the time of Rodis’s arrest, it was clearly established that evidence of intent was required to establish probable cause. Defendants contend that, even if they did not have probable cause to arrest Ro-dis for the offense, the law was not clearly established at the time such that a reasonable officer would have known the arrest was unlawful. They are incorrect.

Requiring the law to be clearly established “is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the July 5, 2007 unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citation omitted) (emphasis added). This means that the right may be clearly established even when “[t]he reasoning, though not the holding” of a prior court of appeals decision puts the officer on notice. Hope v.

Pelzer, 536 U.S. 730, 743, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Thus, “officials can still be on notice that their conduct violates established law even in novel factual circumstances” and the facts need not be “materially similar” to the plaintiffs situation. Id. at 741, 122 S.Ct. 2508. If the law were otherwise, “officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir.2001).

As heretofore explained, it was well established at the time of Rodis’s arrest that “probable cause is a fluid concept&emdash; turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317.

Based on the totality of the circumstances, no prudent officer reasonably could have concluded there was a fair probability that Rodis violated § 472 or any other offense. “Mere suspicion, common rumor, or even strong reason to suspect are not enough” to establish probable cause, Easyriders, 92 F.3d at 1498, and the evidence in this case fell short of creating even a strong reason to suspect. Therefore, the officers were on notice that something more was required. The only Ninth Circuit authority to which Defendants’ point for support is Bates v.

United States, 352 F.2d 399 (9th Cir.1965) (per curiam), and United States v. Ford, 461 F.2d 534 (9th Cir.1972) (per curiam). These cases do not stand for the proposition Defendants claim&emdash;that probable cause to arrest for a violation of § 472 can exist with nothing more than a reason to believe the bill might be fake. In fact, the opinion in Ford, which consists of only two paragraphs, is so lacking in factual background, that what the panel deemed sufficient for probable cause is unknown. The opinion in Bates also fails to provide a factual context sufficient to give the decision meaning.

The opinion acknowledges that a third party, a tow truck operator at the scene of the arrest, “filled in chinks of circumstances to give probable cause,” and that “the circumstances pointing to Bates as a participant in counterfeit transactions ... certainly pointed an accusing finger at him&emdash;enough for probable cause.” 352 F.2d at 400. However, there is no explanation of what any of those circumstances were. Thus, in both Ford and Bates we are left to our own devices to determine what the relevant facts could have been in establishing probable cause.

Consequently, neither case supports a finding of probable cause in the instant case. III. CONCLUSION Probable cause requires “information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.” Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir.1996). Given all of the circumstances surrounding Rodis’s arrest, no prudent person could have concluded reasonably that there was a fair probability Rodis had committed a crime. Consequently, Defendants are not entitled to qualified immunity. AFFIRMED. .

Section 472 states: Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 472. . Our dissenting colleague argues that probable cause existed because "officers are allowed to make reasonable mistakes” and the officers here made a mistake in assuming the bill was counterfeit.

Dissent at 1102. Of course, this is irrelevant, for even if the bill was fake, at least some evidence of Rodis’s alleged intent to defraud would have been required to establish probable cause. . The dissent protests our citation to legal authority identifying what is required for a conviction under § 472 in determining what is required to establish probable cause. Dissent at 1103-04. But surely, identifying the elements of a crime, and evaluating which, if any, are present in a given situation are necessary to determine whether there is a "fair probability” that the crime has been committed. .

Defendants’ reliance on Easyriders is also misplaced. In that case, we opined, "when specific intent is a required element of the offense, the arresting officer must have probable cause for that element in order to reasonably believe that a crime has occurred.” 92 F.3d at 1499 (quoting Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir.1994)). Erroneously, Defendants cite Easyriders for the proposition that only where an offense is a specific intent crime is evidence of intent required to establish probable cause.

Thus, Defendants blatantly misconstrue our holding by confusing a sufficient condition (i.e., if the underlying offense is a specific intent crime, evidence of intent must be present prior to an arrest) with a necessary one (i.e., if evidence of intent is required prior to an arrest, the underlying offense must be a specific intent crime ). Furthermore, Defendants’

interpretation runs contrary to the fact-specific nature of a probable cause inquiry. Probable cause does not always require a showing of every element of the crime because it "is a fluid concept— turning on the assessment of probabilities in particular factual contexts....” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Consequently, it is patently unreasonable to say that evidence of a defendant’s intent or knowledge is never required to establish probable cause for a general intent crime, as Defendants would have us hold.

In any event, Defendants are also incorrect that passing counterfeit currency is a general intent crime. Generally, "[t]o act with the 'intent to defraud’ means to act willfully, and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself.” United States v. Cloud, 872 F.2d 846, 852 n. 6 (9th Cir.1989) (emphasis added).

Section 472 expressly requires an "intent to defraud.” 18 U.S.C. § 472. Thus, under Easyriders, proof of Rodis’s specific intent to deceive or cheat was required to arrest him. See also DeFilippis, 637 F.2d at 1373 (stating that § 472 requires the specific intent to defraud). . Our dissenting colleague cites three out-of-circuit cases and United States v. Blum, 432 F.2d 250 (9th Cir.1970), contending that evidence of intent is unnecessary to establish probable cause. Dissent at 1104-05. Her contention, however, lacks merit.

First, the out-of-circuit cases, even if applicable to the circumstances in this case, are not binding on this panel. Second, Blum is easily distinguishable, in that numerous facts&emdash;such as the suspect fleeing the scene and the fact the suspect lived outside the state&emdash;could have been enough to create a "fair probability" he passed counterfeit bills. In any event, Blum is an old case, and since it was decided (nearly forty years ago), we have made clear that (1) "[t]he key element of

section 472 is ... the specific intent to defraud,” DeFilippis, 637 F.2d at 1373, and (2) "when specific intent is a required element of the offense, the arresting officer must have probable cause for that element in order to reasonably believe that a crime has occurred." Easyriders, 92 F.3d at 1499.