Lead Opinion
Partial Concurrence and Partial Dissent by Judge FERNANDEZ
OPINION
Kelly Soo Park was tried by the state of California for the murder of Juliana Red-ding. Before trial, the judge ruled that she would not allow Park to present any evidence of third-party culpability after Park’s key witness on that question, Melissa Ayala, invoked her Fifth Amendment-privilege and refused to testify. Park was eventually acquitted of all charges.
This appeal presents several issues of law. First, we must decide whether Park has adequately alleged misconduct by Thompson that rises to the level of substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Because we hold that Park has adequately alleged such misconduct, we must decide a second issue: whether Park adequately pleads that Thompson’s misconduct caused Ayala to refuse to testify. We hold that Park has pleaded a sufficient causal connection between Thompson’s misconduct and Ayala’s unavailability. Third, we must consider whether Park nonetheless failed to state a claim because Ayala’s purported testimony was not favorable and material to her criminal defense. We hold that the fact that Park was eventually acquitted does not render Ayala’s testimony immaterial, nor does it bar Park’s Section 1983 action stemming from violations of her rights during the underlying criminal investigation and' prosecution. Furthermore, we conclude that Ayala’s testimony was material to Park’s defense because evidence of third-party culpability would have cast some doubt on the government’s evidence at Park’s trial. Finally, wе must make similar determinations with respect to Park’s conspiracy claims. Here, we also hold the allegations sufficient.
In view of the above, we reverse the district court’s judgment and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
On March 15, 2008, Juliana Redding was strangled to death in her home in Santa Monica, .California. Detective Karen Thompson of the Santa Monica Police Department (“SMPD”) was the lead investigator on the Redding case. After a few months passed without any leads as to who was responsible for Redding’s death, Detective Thompson requested permission from SMPD to continue investigating on her own time. She eventually matched DNA found on Redding’s body to Park. The Los Angeles County District Attorney’s Office (“District Attorney”) consequently charged Park with Redding’s murder.
Park’s murder trial was set for May of 2013. As part of her criminal defense, Park sought to introduce evidence 'that Red-
On January 31, 2013, Park’s investigator interviewed Gilmore’s former girlfriend, Melissa Ayala. During that interview, Ayala told the investigator that Gilmore had been violent toward her and had choked her on at least three occasions. According to Ayala, the first of these incidents occurred after Ayala brought up Redding’s death and accused Gilmore of murdering Redding. Before choking Ayala, Gilmore responded, “You want to see how she [Redding] felt?” On the second occasion, after Ayala again accused Gilmore of murdering Redding, he stated, while choking Ayala, that he was “[g]oing to show [Ayala] how [Redding] felt.” Gilmore was convicted of domestic violence against Ayala. During the interview with Park’s investigator, Ayala said she was afraid of Gilmore, but she agreed to testify about his violent behavior and the statements he made about Redding’s death.
After learning of this potentially exculpatory evidence, Park gave notice to the District Attorney of her intention to call Ayala as a defense witness at trial. Detective Thompson then contacted Ayala and attempted to dissuade her from testifying for the defense. Among other things, Thompson allegedly told Ayala that Gilmore — who had physically abused Ayala in the pаst-was “really upset” about her statements. Park also alleges that Thompson knowingly made false representations to Ayala about the nature of the evidence against Park.
Detective Thompson allegedly admitted that she “had not spoken to Ms. Ayala for investigatory purposes,” but rather had called Ayala only to “repair the damage the Private Investigators had done to her relationship [with Gilmore].” After speaking with Detective Thompson, Ayala refused any further contact with Park’s investigators, although prior to that conversation she had cooperated fully with them. Also, after the conversation, she reneged on her commitment to testify as a witness on Park’s behalf.
On information and belief, Park alleges that Thompson and/or Defendant Does, at Thompson’s instigation, later spoke with the El Segundo Police Department about filing charges against Ayala for assault and criminal threats against Gilmore based on an incident that had occurred during the previous year. Park alleges that Detective Thompson and/or Defendant Does told the El Segundo Police Department that it was important to file charges against Ayala as soon as possible because the charges
On May 9, 2013, Ayala appeared in court pursuant to Park’s subpoena to testify at trial. The Deputy District Attorney informed Ayala’s defense attorney that if he did not instruct Ayala to invoke her Fifth Amendment right against self-incrimination, then she would move to “recuse” him. Ayala invoked her Fifth Amendment right and declined to testify.
Park was tried and acquitted of all criminal charges. Park’s defense counsel elicited favorable testimony from the prosecution’s DNA expert, who testified that Park’s DNA could have been transferred to Redding’s body by the actual killer when he wiped down the apartment to eliminate fingerprints or DNA evidence. Park alleges that even though she was ultimately acquitted, her acquittal was far less certain in the absence of Ayala’s testimony. Without that testimony, Park was precluded from presenting evidence of third party culpability at trial and was limited to presenting solely a failure of proof defense.
II. Procedural History
Park filed her complaint in district court asserting two causes of action against Detective Thompson and Defendants Does 1-10: (1) deprivation of civil rights, 42 U.S.C. § 1983, by violation of the Sixth Amendment’s Compulsory Process Clause and denial of her right to a fair trial under the Due Process Clause of the Fourteenth Amendment; and (2) conspiracy to violate civil rights, 42 U.S.C. § 1983, alleging violation of the same two constitutional rights.
The district court granted Detective Thompson’s motion to dismiss the complaint without leave to amend. With respect to Park’s claim against Thompson individually: first, the district court’s opinion was not entirely clear as to whеther the district judge held that Park had not adequately alleged that Thompson’s conduct constituted substantial interference. Second, the district court concluded that Park had “not pleaded sufficient facts leading to a reasonable inference that it was Defendant’s alleged persuasion that caused Ayala not to testify.” Third, the district court concluded that the complaint failed to establish that Ayala’s testimony would have been “material” to Park’s third party culpability defense. The district judge reasoned that because Park would have obtained, and did obtain, the same result (acquittal), regardless of whether Ayala’s testimony was presented to the jury, her Section 1983 claims were precluded. In addition, because Ayala’s testimony was “not actually ‘exculpatory evidence,’ ” the district judge concluded that its exclusion did not materially prejudice Park’s de
Park appeals the district court’s dismissal of her claim against Thompson individually and her conspiracy claim against Thompson and Doe Defendants.
STANDARD OF REVIEW
We review de novo a district court’s dismissal for failure to state a claim under Rule 12(b)(6). Lee v. City of Los Angeles,
DISCUSSION
I. Section 1983 Claim for Violation of Sixth Amendment Right tó Compulsory Process and Fourteenth Amendment Right to a Fair Trial
“To make out a cause of action under Section 1983, [the] plaintiff! ] must plead that (1) the defendant ] acting under color of state law (2) deprived plaintiff! ] of rights secured by the Constitution or federal statutes.” Williams v. California,
The Supreme Court has established that the government violates due process when its conduct “effectively dr[ives a] witness off the stand.” Webb v. Texas,
The Supreme Court has also made clear that “the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses,” but only “witnesses in his favor.” United States v. Valenzuela-Bernal,
To state a claim for violation of her fair trial and compulsory process rights, Park must therefore adequately plead (1) that Thompson’s alleged conduct amounts to “substantial government interference” with a defense witness; (2) that Thompson’s conduct caused Ayala not to testify; and (3) that Ayala’s testimony would have been favorable and material. As we have explained previously, because we are reviewing a motion to dismiss, we treat Park’s allegations as if they were true and draw all inferences in her favor for the limited purpose of this opinion. See Arizona Students’ Ass’n v. Arizona Bd. of Regents,
To make out a claim against Thompson, Park must show not only that Thompson engaged in misconduct, but also that such misconduct was causally connected to Ayala’s refusal to testify.
a. Misconduct
The “substantial interference inquiry is extremely fact specific” and requires an evaluation of the totality of the circumstances. United States v. Juan,
In the present case, Detective Thompson contacted Ayala after Park gave notice to the District Attorney of her intention to use Ayala as a defense witness at her criminal trial.
Moreover, Park contends that Thompson’s actual motive in asserting Gilmore’s innocence, Park’s guilt, and the defense team’s dishonesty was to dissuade Ayala from testifying. See Bohn,
Park further alleges that Thompson made false representations of the evidence against Park, incorrectly stating, for example, that Park “left her blood DNA on the door handle.” Detective Thompson also encouraged Ayala not to “believe what they’re [the defense team] saying,” because they were “going to tell every lie they can to try and get [Park] off.” Thompson described the defense team as “private investigators who are hired by [Park’s] defense attorneys to try and shoot holes in — in our prosecution of their — of the bad guy” and stated that they “bent the facts to try to, you know, make you think something else.” Taken together, the allegations regarding Thompson’s misrepresentation of the evidence against Park, coupled with her statements about Park’s guilt, Gilmore’s innocence, and the defense investigators’ duplicity (as well as her statement that Gilmore was “really upset” with Ayala), can reasonably be interpreted as adequately pleading a deliberate intent on the part of Thompson to intimidate and otherwise attempt to persuade Ayala to refuse to testify on behalf of the defense.
b. Causation
The district judge concluded that Park “has not pleaded sufficient facts leading to a reasonable inference that it was Defendant’s alleged persuasion that caused Ayala not to testify.” He reasoned that the telephone conversation between Thompson and Ayala was the only fact alleged connecting Thompson to Ayala. In his view, because “various actors,” including the deputy district attorney, Ayala’s defense counsel, and the trial judge, “were involved in the time between the telephone conversation and Ayala’s failure to testify,” there was an insufficient causal link between Thompson’s phone call and Ayala’s choice not to testify. We disagree: Park’s complaint alleges sufficient facts to establish a causal connection between Thompson’s conduct and Ayala’s refusal to testify.
Although our precedent clearly requires some “causal link” between the government’s conduct and the witness’s decision not to testify, see Juan,
To decide the present case, however, we need not adopt any particular causation standard because the complaint in the present case contains sufficient factual allegations to preclude us from affirming on causation grounds under any reasonable standard. Park’s defense team made a substantial effort to obtain Ayala’s testimony, ineluding serving her with a subpoena. Before Detective Thompson’s phohe call, Ayala had committed to testifying for the defense and had cooperated with defense investigators. After the phone conversation, however, Ayala refused any further contact with the defense investigators and subsequently declined to testify.
Park must also “make some plausible showing” of how the potential witness’s testimony “would have been both material and favorable to [her] defense” to establish a violation of her compulsory process and fair trial rights. See Valenzuela-Bernal,
a. Park’s acquittal did not render Ayala’s testimony immaterial.
Thompson argues that Park’s acquittal bars her Section 1983 action, apparently on the theory that Ayala’s testimony was rendered immaterial by Park’s acquittal. The district judge at one point in his brief order “assum[ed] that [Park’s] state court acquittal is not a bar to her Section 1983 claim,” although he characterized the question “[w]hether a Section 1983 claim survives absent a conviction in an underlying criminal action” as an open question in our circuit. He nonetheless held that the exclusion of Ayala’s testimony would not have been “material” to Park’s 'defense because, even with the testimony, Park “would have obtained the same result.”
The district court was incorrect to characterize this issue as an open question, and his order is inconsistent with the established law of this circuit: our binding precedent clearly explains that an acquittal does not bar a Section 1983 action based on a due process violation during an underlying criminal proceeding. Haupt v. Dillard,
In addition to her compulsory process claim, Park, like the plaintiff in Haupt, claims a violation of her right to a fair trial under the Due Process Clause. This fair trial claim necessarily incorporates her compulsory process claim, as the right to obtain witnesses in one’s favor is part of the due process “right to fairly ‘present a defense.’ ” United States v. Juan,
Park was deprived of her principal and apparently sole defense — that a third party was guilty of the murder — due to Thompson’s alleged interference with Ayala’s testimony. The circumstances of Park’s trial stand in stark contrast to those in Yalenzuela-Bernal, the Supreme Court’s seminal witness interference case, in which the defendant did not know whether the deported witnesses could actually aid in his defense,
A trial in which the principal defense has been effectively barred cannot be reconciled with the Due Process Clause, which “guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice.” Valenzuela-Bernal,
Park’s acquittal did not erase Park’s constitutional injury, see Haupt,
The concept of “materiality’ does not carry a static and uniform meaning across these two different contexts. In a criminal case, in which the defendant seeks reversal of his conviction, “materiality” means material to the conviction. In other words, in a criminal case, suppressed evidence or testimony is only material if it could have affected the factfinder’s determination whether the defendant is guilty beyond a reasonable doubt. See Valenzuela-Bernal,
Valenzuela-Bernal, for example, dealt solely with the materiality of evidence in a criminal case in which the defendant was convicted. It stands for an elementary proposition of our criminal law: we do not reverse convictions based on the absence of testimony, evidence, or even effective assistance of counsel, unless the convicted defendant can demonstrate that he was somehow “prejudiced” by the deprivation.
In contrast, in a Section 1983 action, the plaintiff is not seeking reversal of his conviction, but rather compensation for the violation of his constitutional rights during a previous criminаl trial. In other words, he is seeking to vindicate his right to a procedurally fair criminal trial. Consequently, the materiality test in a Section 1983 case is directed towards a different question: suppressed evidence or testimony is material only if it affected the question whether the defendant was deprived of a fair trial. The fact that a defendant was acquitted has little to do with whether the trial was fair, see Haupt,
The Eleventh Circuit mechanically imported the materiality requirement, as developed in criminal cases like Valenzuela-Bemal, into its Section 1983 analysis without recognizing this key distinction. Relying exclusively on Valenzuela-Bemal, the Eleventh Circuit held that an acquitted defendant can never state a claim for a violation of his compulsory process right or his due process right to a fair trial because the violation will never be “material.” Kjellsen,
The Eleventh Circuit’s failure to recognize that materiality must have a different meaning in Section 1983 cases than in criminal cases was an error that led that circuit to effectively bar all Section 1983 claims by acquitted defendants and thus tó create a direct conflict with our precedent in Haupt. We decline to follow the Eleventh Circuit’s approach, and instead reaffirm our binding rule: Park’s acquittal does not render Ayala’s allegedly suppressed testimony immaterial, nor does it preclude her from bringing a Section 1983 action to vindicate her right to a fair trial.
Thompson contends that Haupt has been effectively nullified because it relied on Cooper v. Dupnik,
b. Ayala’s testimony was material to Park’s defense.
The district court also concluded that Park failed to adequately plead materiality because Gilmore’s statements alone were not sufficient to lead to a reasonable inference that he was the murderer and therefore Ayala’s testimony was “not actually ‘exculpatory evidence.’ ” In his analysis, the district judge required a higher degree of exculpation than is appropriate under our precedents. We reverse and conclude that Park has adequately pleaded that Ayala’s potential testimony was material. Materiality does not require incontrovertible evidence of exculpation; to the contrary, evidence that tends to “cast doubt” on the government’s case qualifies as materiаl. See United States v. Leal-Del Carmen,
In the present case, were Ayala to have testified that Gilmore choked her while referring to Redding’s death, it would have been sufficient to permit Park to present a third party culpability defense under California law. Ayala’s testimony about Gilmore would have satisfied California’s threshold standard for introducing evidence of third party culpability, which merely requires “direct or circumstantial evidence linking the third person to the actual perpetration” of the murder. People v. Hall,
II. Civil Conspiracy Claim Under Section 1983
Park also alleges that Thompson “orchestrated the charging of Ms. Ayаla to ensure that she did not testify for the defense” and that, on information and belief, she brought about that result in collaboration with a number of Doe Defendants.
Shortly afterwards, at Park’s criminal hearings, Ayala declined to testify at Park’s trial because of these pending charges and after the Deputy District Attorney threatened to “recuse” her attorney if he did not advise her to invoke her Fifth Amendment privilege. Following Ayala’s refusal to testify, the District Attorney dismissed the felony charges, and Ayala received a probationary sentence after pleading no contest to a misdemeanor charge. Based on these facts, as well as information and belief, Park alleged, that Thompson colluded with others to arrange for the filing of criminal charges against Ayala in an effort to make her unavailable to testify at trial.
Park’s complaint alleged facts that are “suggestive” of an agreement to engage in “illegal conduct.” See Twombly,
CONCLUSION
For the reasons stated above, the district court’s dismissal of Park’s complaint is reversed and remanded for proceedings consistent with this opinion. REVERSED AND REMANDED.
Notes
. Although the two claims as alleged in the pleadings are intermingled and overlapping, we treat them separately for purposes of this opinion. On remand, the parties and the district court may decide to analyze them together should that prove preferable.
. The present appeal addresses the dismissal of Park’s amended complaint, which she filed after the district court dismissed her original complaint with leave to amend. For the sake ' of clarity, we hereinafter refer to the amended complaint as "the complaint.”
. Most of the facts set forth in this section are historical and not likely to be a subject of dispute. Others may be disputed, but with regard to the first claim, all are adequately pleaded in the complaint and thus sufficient to defeat Thompson's motion to dismiss. For purposes of this opinion only, wе deem them all to be true. We consider separately the facts that relate to the conspiracy claim and are principally alleged on information and belief. As to that claim, we conclude that under all the circumstances, the allegations, with all the inferences that must be drawn in Park’s favor, are sufficient to plead a plausible claim for conspiracy. Thus we assume those facts to be true as well, but again solely for the purpose of the motion to dismiss.
. For example, Thompson told Ayala that the police had found "blood on the front door handle ... so the killer [Plaintiff] was injured during the struggle and she left her blood DNA on the door handle.” A transcript of the phone call may be found at pages 407-432 of the excerpts of record.
. Park’s complaint also alleges that Detective Thompson interfered with two other witnesses, Park’s associate Ronnie Case and Park's fiancé (now husband), Thomas Chron-ister. The district court decision does not mention these allegations.
. Park’s original complaint also asserted a cause of action for declaratory relief, but she later voluntarily dismissed this claim. This appeal deals only with Park's Section 1983 claim against Thompson individually and her conspiracy claim against Thompson and others.
. Despite the fact that Park’s complaint pleads a claim for civil conspiracy under Section 1983, the district court erroneously construed her conspiracy claim as a Section 1985 claim, apparently on the assumption that conspiracy claims must be brought under that section. The law is to the contrary. "[I]t is permissible to state a civil cause of action for conspiracy, based on § 1983.” Cohen v. Norris,
. The analysis under the Sixth and Fourteenth Amendments is "nearly identical.” United States v. Bohn,
. A simple, investigatory phone call to a potential witness does not amount to misconduct, see Little,
. Cited not as precedent but for the persuasiveness of its reasoning. See 9th Cir. Gen. Order 5.5(d).
. Because the misconduct alleged above is sufficient, we do not consider in this section the additional conduct that primarily relates to the conspiracy claim involving the Doe defendants. For similar reasons, we do not consider that additional conduct in subsection 2 relating to causation or subsection 3 relating to materiality.
. Although it is true, as the district judge noted, that the actions of the trial judge, the prosecutor, Ayala's defense lawyer, and Ayala herself represent contributing causes to Ayala’s ultimate refusal to testify, the fact that the actions of other individuals also contributed to Ayala's decision does not mean that Thompson's phone call did not have a sufficient causal connection to Ayala’s refusal: the subsequent actions of the prosecutor, judge, and Ayala’s lawyer are not, drawing all inferences in Park’s favor, unforeseeable intervening causes that would break the chain of proximate causation set in motion by Thompson’s acts of persuasion. Causation in this case is, moreover, ultimately a question for the finder of fact to decide. See Farr v. NC Mach. Co.,
Insofar as the dissent suggests that either Supreme Court precedent or our precedent binds us to apply a "but for” causation standard, it misreads both our precedents (as explained above) and those of the Supreme Court. See Dissenting Op. at 930 (citing Bur-rage v. United States, - U.S. -,
Nor does our conclusion that Park has adequately pleaded causation rely entirely, or even partially, on "conclusory information and belief allegations.” Dissenting Op. at 930. To the contrary, taking the facts pleaded in the complaint in the light most favorable to Park, we simply conclude that they permit a "plausible” causal connection between Thompson's phone call, Ayala's refusal immediately thereafter to communicate further with Park's dеfense team, and her subsequent refusal to testify.
. Thompson cites one case, Smiddy v. Varney,
. A defense, of course, must be distinguished from simply punching holes in the prosecution's case by pointing out its weaknesses, which was the basis of Park’s acquittal. See United States v. Spencer,
. The trial judge explained that Ayala's decision not to testify was dispositive as to the admissibility of Park's third party culpability defense: “And if today Miss Ayala is asserting her 5th Amendment rights and not going to testify, then I am going to preclude you from mentioning anything about the third party culpability defense;” “[I]f you don't have a witness that is — can testify to [Gilmore’s statements], then it is not going to come in and the jury is not going to hear it, and you are not going to mention it in your opening statement. So the rubber meets the road today;” "[I]f you can’t get the connecting evidence in [i.e. Ayala's non-hearsay testimony as to Gilmore’s statements while choking her, connecting him to Redding's murder], none of that other stuff [i.e. ongoing fighting between Redding and Gilmore, including past violent outbursts] is coming in”.
. We also recognize that in the Brady context, the Sixth and Tenth Circuits have held Section 1983 claims are barred when the plaintiff was acquitted. See Morgan v. Gertz,
. We note that in Kjellsen, unlike in the case before us, the alleged constitutional violation had no effect on the basic course of proceedings of the trial nor on the issues that the fact-finder was required to resolve. The plaintiff in that case sued for violation of his compulsory process right based on the failure of the forensic sciences division of the Georgia Bureau of Investigation to reveal an exculpatory retest of his blood alcohol levels before his criminal trial for driving under the influence and other charges.
. Justice Souter, joined by Justice Breyer, concurred in the judgment only, on an even more limited basis. The concurrence, without which the result in Chavez would not have garnered a majority of the Court, explicitly declined to decide "whether the absence of Miranda warnings may be a basis for a § 1983 action under any circumstance" because that question was "not before the Court.” Chavez,
. In a subsequent case in this court, the three judges on the panel each offered nonbinding comments on an analogous question: whether a Brady violation is actionable under Section 1983 following an acquittal. See Smith v. Almada,
. See supra n. 14.
. Although "[a]s a general rule, the use of ‘John Doe’ to identify a defendant is not favored," in circumstances “where the identity of alleged defendants will not be known prior to the filing of a complaint ... the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti,
. The dissent attempts to characterize this rather unusual course of events as merely “some parallel conduct.” Dissenting Op. at 931. As explained above, however, when the entire sequence of events in the complaint is considered in context, what might otherwise appear to have been coincidental parallel conduct on its own becomes “suggestive of illegal conduct” and is thus sufficient to survive a motion to dismiss. Twombly,
. Thompson contends that she is entitled to qualified immunity. The district court declined to address Thompson’s qualified immunity argument because it dismissed both of Park’s causes of action for other reasons. Wе do not consider the question here in the absence of its initial consideration by the district judge.'
Concurrence Opinion
concurring in part and dissenting in part:
I respectfully concur in part and dissent in part.
I agree with the majority that we must review the district court’s decision de novo. See Starr v. Baca,
Moreover, where a plaintiff has relied upon a document, or parts thereof, courts can properly consider the whole of the document to be effectively incorporated by reference into the complaint. See Branch v. Tunnell,
As the district court determined, Park’s complaint does not cross the line and reach plausibility; it is blocked by the principles outlined above.
A. I agree that if a government officer “ ‘intimidates or harasses the witness to discourage the witness from testifying,”’ that indicates “ ‘[ujndue prosecutorial interference.’” United States v. Bohn,
In fact, Thompson did not threaten Ayala at all, and surely did not suggest that Ayala should not testify. Of course, she did state that Gilmore was “really upset.” However, that was not because of what Ayala had said or would say, but because the defense minions had bad-mouthed him and claimed that he had committed other unsavory crimes. Gilmore was concerned
Furthermore, Thompson told Ayala that if she received a subpoena she wаs “under an obligation to appear.” Moreover, when Ayala said that she did not want to hurt Gilmore, Thompson replied: “No, I understand. But — but you have to tell the truth and you’ll have to let us do our job....” None of that bespeaks an attempt to keep Ayala from testifying; quite the contrary.
I recognize that Thompson entered dangerous territory when she decided to talk to Ayala and tell her that she was not required to speak further to Park’s investigators. See Cacoperdo v. Demosthenes,
Incidentally, the complaint’s mere general pleading that there is some sort of nexus between the conversation in question and Ayala’s decision not to testify is conclusory and insufficient. See Blantz v. Cal. Dep’t of Corr. & Rehab.,
Thus, I dissent from part 1.1 of the Discussion portion of the majority opinion.
B. Because I do not think that there was a proper allegation of a substantive violation, I also do not believe that a conspiracy was effectively alleged. See Lacey v. Maricopa County.,
In addition, while the majority basically contents itself with the reflection that in general a pleading of conspiracy on information and belief is enough if defendants have the information,
Thus, I dissent from part II of the. Discussion portion of the majority opinion.
C. As I read the majority opinion (Discussion portion part 1.2), it seems to declare that an acquittal may or may not ultimately preclude a constitutional claim; that will depend on the facts and circumstances of the particular case.
D. I agree with the majority that the issue of qualified immunity should be remanded to the district court for its consideration in the first instance. See, e.g., Harlow v. Fitzgerald,
Thus, I respectfully concur in part and dissent in part.
. For example, our freeways аre undoubtedly dangerous to all drivers; they are not forbidden to them.
. It should be noted that even viewed through the majority’s somewhat distorted lens, the alleged claim of substantial interference with Park’s due process rights at trial is very weak. For example, just what evidence was Park denied? Possibly, Ayala would have testified that when she baited Gilmore by accusing him of killing the murder victim, who everyone knew had been strangled, he choked her and said: "You want to see how she felt?” Although there is no justification for his reaction to her statement, it is important to recognize that he did not spontaneously choose that topic. He was reacting to Ayala's taunt. Moreover, in their unusual relationship, Ayala had, it seems, also assaulted Gilmore — hence her own prosecution.
. Those charges were hardly trumped up or false, and Ayala ultimately pled nolo contendere to a lesser offense. See Williams,
. An interesting circular concept: I do not have evidence of an agreement, but since I say that you agreed, you must have the evidence.
. See Haupt v. Dillard,