Raymond TORRES; Maria Elva Almador-Torres, Plaintiffs-Appellants, v. CITY OF LOS ANGELES; Los Angeles Police Department, Brad Roberts, LAPD Detective; Jennifer Hickman, LAPD Detective; Steve Park, LAPD Detective; F. Rains, LAPD Detective, Defendants-Appellees.
No. 06-55817
United States Court of Appeals, Ninth Circuit
Nov. 13, 2008
Opinion Filed Aug. 26, 2008. Opinion Withdrawn Nov. 13, 2008. New Opinion Filed Nov. 13, 2008.
548 F.3d 1197
Argued and Submitted Feb. 12, 2008.
VI
In sum, we conclude that MHC has standing based on its financial interest in the Park. However, we affirm the district court‘s order dismissing its complaint. The complaint contained no claim upon which relief could be granted, because its as-applied takings claim was unripe, its facial claims failed to satisfy the applicable statute of limitations, and its due process and equal protection claims lacked merit under the United States Constitution. Moreover, the principles of abstention justify the district court‘s dismissal of the petition for a writ of administrative mandamus, and we decline to disturb the state trial court‘s subsequent decision denying the writ.
The district court‘s order dismissing MHC‘s First Amended Complaint is AFFIRMED.
damages actions should be stayed until the state proceedings are completed. Id. at 968. Gilbertson did not require a stay for damages claims that would be dismissed as untimely or meritless on the pleadings, such as MHC‘s takings, due process, and equal protection claims. Nor did Gilbertson require a stay with respect to the petition for a writ of administrative mandamus, because that did not constitute a “damages action.”
Rockard J. Delgadillo, Janet G. Bogigian, Amy Jo Field (argued), Los Angeles City Attorney‘s Office, Los Angeles, CA, for the defendants-appellees.
Before: B. FLETCHER and N. RANDY SMITH, Circuit Judges, and SAMUEL P. KING,* District Judge.
* The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
ORDER AND OPINION
ORDER
The Opinion filed August 26, 2008, slip op. 11723, and appearing at 540 F.3d 1031 (9th Cir.2008), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
The panel has voted to deny the petition for panel rehearing. Judge N.R. Smith votes to deny the petition for rehearing en banc and Judges B. Fletcher and King so recommend.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.
The new Opinion is filed contemporaneously with this order. There is no change in substance.
No new petition for rehearing or rehearing en banc will be entertained.
OPINION
BETTY B. FLETCHER, Circuit Judge:
In 2004, plaintiff Raymond Torres, who was then 16 years old, was arrested, without a warrant, on charges of murder and attempted murder. After 162 days of incarceration, Torres was released when the district attorney dismissed the charges against him. Following his release, Torres and his mother (“Plaintiffs“) brought a civil rights action against the City of Los Angeles, the Los Angeles Police Department (“LAPD“), and four LAPD detectives (“Defendants“), seeking damages under both federal and state law. After granting summary judgment to the City of Los Angeles and the LAPD, the district court denied two of Plaintiffs’ motions in limine and, after all of the parties had presented their evidence to the jury, granted the remaining Defendants’ motion for judgment as a matter of law. Plaintiffs appeal the grant of the motion for judgment as a matter of law as well as the rulings on the motions in limine. We affirm in part, reverse in part, and remand.
I.
The charges leading to Torres’ arrest arose from a gang-related shooting in Los Angeles on August 11, 2004. On that day, Josue Santillan, a member of the Canoga Park Alabama street gang (“CPA gang“), was driving a car that contained four other passengers: Diana H., who was seated in the front right passenger seat; Joel Castaneda, who was seated in the back seat directly behind Diana; and two other persons, at least one of them male, who were also seated in the back seat.1 At one point Santillan drove by a park in the Reseda area, where, according to Diana and other witnesses, the male passengers flashed gang hand signs and shouted challenges at members of the Reseda street gang who were in the park. Santillan then drove away, but the members of the Reseda gang gave chase in a car of their own. When the Reseda gang members’ car pulled alongside the car driven by Santillan, Castaneda fired several rounds from a semiautomatic pistol at the Reseda gang members’ car, killing the driver and wounding another passenger.
Detectives Roberts, Hickman, Park and Rains investigated the shooting. On August 25, 2004, two weeks after the shooting, Detectives Roberts and Hickman questioned Diana about the shooting. Diana identified Santillan as the driver and Castaneda as the shooter, and both were subsequently arrested. Diana also expressed her belief that all the male passengers were probably members of the CPA gang.
Detectives Roberts and Hickman asked Diana about the third male passenger who had been sitting directly behind Santillan. Diana told the detectives that she had never seen him before, that she did not know his name, and that she did not remember him well because she had not been paying attention to him. However, Diana was able to describe this third male passenger as Hispanic, 15 or 16 years old,
On September 23, 2004, six weeks after the shooting, the detectives obtained several additional pieces of information in their investigation of the third male passenger, which led them to arrest Torres that same day.
First, Detective Hickman spoke to Danny Steinberg, a school police officer assigned to El Camino High School. Previously, Steinberg had been questioned by an LAPD Juvenile Officer, Marie Lamar, about an outstanding suspect in a murder case. Officer Lamar had described the suspect as a short and heavy-set Hispanic male with a shaved head who was “dressed down gang-style.”2 Steinberg had informed Officer Lamar that her description matched a student at El Camino—Torres—and that Torres had recently begun hanging out with gang members at El Camino and had begun “dressing down as a gangster” and shaving his head. On September 23, Steinberg repeated the same information to Detective Hickman. There was conflicting testimony at trial, however, as to whether Steinberg also told Officer Lamar and Detective Hickman that Torres had “recently been jumped into the CPA gang,” i.e., that Torres had become a member of the gang.
Second, Detectives Hickman and Roberts spoke to an official at El Camino high school, Mark Pomerantz. Pomerantz gave the detectives two color photos of Torres, one older, in which Torres is shown with short dark hair, and the other taken that morning at the detectives’ request, in which Torres is shown with a shaven head. In addition, Pomerantz discussed with the detectives a group photo of six young Hispanic males—including Torres and Santillan—that Pomerantz had provided the LAPD a year earlier when it was investigating Santillan in connection with another shooting of a Reseda gang member. The group photo had been taken by a teacher at a school event called “Melody of Words,” although Detective Roberts testified at trial that he was unaware of that fact at the time of Torres’ arrest.
When Pomerantz originally provided the group photo he had informed the LAPD that two of the individuals in the photo (neither of them Torres) were members of the CPA gang. On September 23, Pomerantz told the detectives that Torres and Santillan were friends and hung out. In the group photo, Torres’ right hand is not visible and only part of one finger of his left hand is visible. Conflicting testimony was presented at trial as to whether Torres is making a gang sign with his left hand. However, Detectives Roberts and Park both testified that, at the time of Torres’ arrest, they were unaware one way or the other whether Torres was a member of the CPA gang.
In all three photos provided by Pomerantz, Torres is wearing a prominent grey metal cross on a chain around his neck. Pomerantz also told Detective Hickman that Torres “always wears [a] grey metal cross on a chain around his neck.” Notably, Diana did not say anything about the third male passenger in the car wearing a chain or cross when the detectives spoke to her on August 25, 2004.
Third, Detective Hickman searched Torres’ name in six different databases: an
Fourth, Detective Hickman used the most recent photo of Torres she had received from Pomerantz to assemble a photographic identification array of six individuals called a “six-pack.”3 Detective Hickman used a computer database to find photos of five other individuals to place in the six-pack, which she did by searching for photos based on age and physical characteristics also applicable to Torres. However, while Detective Hickman first searched for photos of persons who were not only young male Hispanics but also “heavy,” that search did not yield a sufficiently large selection to fill the six-pack with faces that Detective Hickman considered to be similar to that of Torres. Accordingly, Detective Hickman expanded her search to include non-heavy persons, which did yield a sufficient large selection. Plaintiffs’ police procedures expert testified at trial that the resulting six-pack was unduly suggestive because aside from Torres’ photo only one other photo was of a visibly “chubby” person, thus significantly increasing the odds that Diana would “identify” Torres in the lineup.
Detectives Roberts, Park and Rains then proceeded to the residence of Diana. Detectives Roberts and Park went inside to show Diana the six-pack; Detective Rains waited outside in his car. Detective Roberts told Diana that he “had possibly identified the 15- to 16-year old chubby boy” and then read her a standard “photographic show-up admonition.”
After Detective Roberts handed Diana the six-pack, Diana stared at it—according to Diana for between five and ten minutes—whereupon Detective Roberts asked her at whom she was staring. Diana then indicated that she was staring at photo # 6, the photo of Torres. However, there was conflicting testimony as to whether Diana also stated that the person in photo # 6 was the third male passenger in the car, or, on the contrary, whether she stated that she did not know whether it was him or not. It is undisputed, however, that the detectives then asked Diana to write down what she thought, whereupon Diana circled the photo of Torres with a pen and wrote on the six-pack, “I circle the person in # 6 because he looks more likely [sic] to the other guy in the car.” Detective Roberts acknowledged at trial that, based solely on what Diana wrote on the six-pack, he did not have probable cause to arrest Torres.
When Detectives Roberts and Park rejoined Detective Rains outside Diana‘s home, Detective Roberts told Rains that Diana had identified Torres as the third male passenger—a statement which Diana testified at trial was false—and said they were going to arrest Torres. Detective Rains was not shown Diana‘s written statement on the six-pack. Detectives Roberts, Park and Rains then went to Torres’ home. When Torres came outside and the detectives approached him, Torres did not try to flee. The detectives engaged in no conversation with Torres but simply arrested him in his mother‘s presence. Detective Park acknowledged at trial that at the time of Torres’ arrest there was no physical evidence linking Torres to the shooting.
Torres and his mother subsequently filed suit, claiming deprivation of Torres’ Fourth Amendment rights, in violation of
On the eve of trial against the remaining Defendants, the district court denied two of Plaintiffs’ motions in limine: a motion for an order barring Defendants’ expert witnesses Detective Jack Giroud and Officer Norm Peters from testifying on the ground that they had failed to provide written expert reports as required by
After all of the parties had presented their evidence to the jury, Defendants orally moved for judgment as a matter of law, pursuant to
II.
We review de novo the district court‘s order granting Defendants’ motion for judgment as a matter of law under
We also review de novo the district court‘s finding of probable cause, Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1161 n. 14 (9th Cir.2007), as well as its grant of qualified immunity, Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir.2007). We review for an abuse of discretion the district court‘s evidentiary rulings. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886 (9th Cir.2002).
III.
A.
We affirm the district court‘s dismissal of Plaintiffs’ case against Detective Hickman. The evidence is undisputed that Detective Hickman was not present when Torres was arrested, and there is no evidence that Detective Hickman instructed the other detectives to arrest Torres or that any of those detectives consulted with her before making the arrest. Thus, there is no evidence of “integral participation” by Detective Hickman in the alleged constitutional violation. Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir.1996); see Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir.2007) (explaining that integral participation requires “some fundamental involvement in the conduct that allegedly caused the violation” and affirming summary judgment in favor of officer who arrived on the scene after the allegedly unconstitutional arrest and officer who provided only crowd control) (citing Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.2004)); Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir.2005) (en banc) (affirming grant of summary judgment in favor of government agent who did not participate in the allegedly unconstitutional search).
Moreover, although Detective Park testified that Detective Hickman, together with Detective Roberts, was in charge of the investigation of the shooting, there is no evidence that Detective Hickman acted as a supervisor that would impose supervisor liability. See Motley, 432 F.3d at 1081 (“A supervisor can be liable under
B.
Plaintiffs argue that the district court erred in concluding, as a matter of law, that Detectives Roberts, Park and Rains had probable cause to arrest Torres.6
“Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “While conclusive evidence of guilt is of course not necessary under this standard to establish probable cause, [m]ere suspicion, common rumor, or even
As the definition of probable cause indicates, the proper inquiry is whether the detectives had probable cause to believe that Torres had committed a crime, not merely that Torres was the third male passenger in the car.7 While probable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for the arrest, see Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004); see also Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604, 170 L.Ed.2d 559 (2008), an arrest is still unlawful unless probable cause existed under a specific criminal statute, see Devenpeck, 543 U.S. at 156. Defendants do not contend that there was probable cause to believe that Torres had committed any offense besides murder and attempted murder. In California, both offenses require an unlawful killing with malice aforethought, see
We conclude that, based on the information in the detectives’ possession at the time of the arrest, a reasonable jury could have found that the detectives lacked probable cause to believe that Torres had been the third male passenger in the car and had acted in concert with the shooter with conscious disregard for human life.
First, Diana‘s general description of the third male passenger is not sufficient to create probable cause. “Under the law of this Circuit, mere resemblance to a general description is not enough to establish probable cause.” Lopez, 482 F.3d at 1073 (quoting Grant v. City of Long Beach, 315 F.3d 1081, 1088 (9th Cir.2002), amended by 334 F.3d 795 (9th Cir.2002)). For example, in United States v. Ricardo D., we held that the fact that the defendant matched descriptions of the crime suspect as a “young, thin man, not too tall” and a “young, Mexican male” were insufficient to create probable cause. 912 F.2d 337, 342 (9th Cir.1990). Here, Diana‘s description of the third male passenger was slightly more detailed than the description in Ricardo D. but, at the same time, did not match Torres insofar as Diana described the third male passenger as having some hair. Moreover, the fact that Diana did not mention a chain or cross around the passenger‘s neck casts further doubt on whether Torres matched Diana‘s general description. Accordingly, Diana‘s description alone was clearly insufficient to create probable cause as a matter of law.
Second, a reasonable jury could have found that Diana‘s “identification” of Torres in the six-pack did not create probable cause because the six-pack was suggestive and the “identification” was not sufficiently reliable. See Grant, 315 F.3d at 1086-88 (holding that two identifications did not create probable cause as a matter of law because six-pack was arguably suggestive and identifications lacked sufficient indicia of reliability).
The Supreme Court has cautioned that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” United States v. Wade, 388 U.S. 218, 228 (1967). Here, only one other photo in the six-pack besides the photo of Torres was of a visibly overweight individual and thus of a person who fit Diana‘s general description. In addition, Detective Roberts told Diana, before handing her the six-pack, that the detectives had “possibly identified the 15 to 16 year-old chubby boy.” According to Plaintiffs’ expert, that state-
Although a suggestive photo array “may still serve as a basis for probable cause if sufficient indicia of reliability are present,” Grant, 315 F.3d at 1087 (citing United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982)), here a reasonable jury could have found that no sufficient indicia of reliability were present. “Indicia of reliability include: 1) the opportunity to view the criminal at the time of the crime; 2) the degree of attention paid to the criminal; 3) the accuracy of the prior descriptions of the criminal; 4) the level of certainty demonstrated at the time of the confrontation; and 5)[] the length of time between the crime and the confrontation.” Id. (citing Gray v. Klauser, 282 F.3d 633, 639 (9th Cir.2002)). While Diana spent several hours in the car with the third male passenger, she had never seen him before and did not pay attention to him. In addition, as previously discussed, Diana gave only a general description of the third male passenger, which did not match Torres in two important respects (head of hair and no mention of prominent cross). Further, Diana was not shown the six-pack until six weeks after the shooting. When she was handed the six-pack, she stared at it in silence for between five and ten minutes and then, when asked at whom she was staring, made only a comparative identification: she stated that Torres looked more like the third male passenger than the other persons depicted in the six-pack (only one of whom was visibly overweight), but that she was not sure whether or not it actually was him. Thus, a reasonable jury could have concluded that Diana‘s identification lacked sufficient indicia of reliability and thus did not provide the detectives with probable cause. Although Detective Rains had been told that Diana had positively identified Torres, we nevertheless conclude that the reliability of the identification was sufficiently questionable for other reasons to allow a reasonable jury to conclude that Rains, too, lacked probable cause.
While the detectives also had the additional information that Torres was friends with Santillan, hung out with gang members, and had recently begun “dressing down as a gangster,” they had no information that Torres was actually a member of the CPA gang (or any other gang), and Torres’ name did not come up in any of the six criminal databases searched by Detective Hickman. Moreover, although fingerprints of Santillan were found in the car, there was no physical evidence linking Torres to the vehicle. In addition, the fact that Torres made no attempt to flee when the detectives came to arrest him, while by no means dispositive, further indicates that reasonable minds could disagree about the existence of probable cause. See Ricardo D., 912 F.2d at 342.
Finally, the detectives lacked evidence that the third male passenger had acted in concert with Castaneda and had the requisite mental state to be guilty of murder and attempted murder. There is no evidence that the third male passenger helped decide or make plans to challenge or shoot at rival gang members; that he knew that Castaneda had a gun; or that he assisted Castaneda in firing the shots. Thus, aside from the evidence that the third male passenger had flashed gang signs and shouted challenges, there was no evidence that the third male passenger had acted in concert with Castaneda and had done so with a conscious disregard for human life. This dearth of evidence as to
Accordingly, we conclude that a reasonable jury could have found that Detectives Roberts, Park and Rains lacked probable cause to believe that Torres had committed a crime. The district court therefore erred in finding probable cause as a matter of law.
C.
We next consider whether Detectives Roberts, Park and Rains were nevertheless protected by qualified immunity. When a police officer asserts qualified immunity, we apply a two-part analysis under Saucier v. Katz, 533 U.S. 194 (2001). The first question is whether the facts, when taken in the light most favorable to Plaintiffs, show that Defendants’ conduct violated a constitutional right. Id. at 201. The second question is whether the constitutional right at issue is “clearly established.” Id. at 202.
As Defendants argue, qualified immunity is a question of law, not a question of fact. Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). But Defendants are only entitled to qualified immunity as a matter of law if, taking the facts in the light most favorable to Torres, they violated no clearly established constitutional right. The court must deny the motion for judgment as a matter of law if reasonable jurors could believe that Defendants violated Torres’ constitutional right, and the right at issue was clearly established.
Plaintiffs here appeal the grant of a
Defendants contend that our decision in Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir.2003), supports their contention that a court, not a jury, must decide the qualified immunity issue here. We disagree. In Peng, the district court had determined at the summary judgment stage that the defendant officer was entitled to qualified immunity. Id. at 972-73. On appeal, Peng argued, first, that the existence of disputes of fact precluded the district court from granting summary judgment on the issue of qualified immunity, and, second, that because more than one reasonable inference could be drawn from the undisputed facts regarding the existence of probable cause, the question of probable cause was one for the jury and not the court. Id. at 978-79. Rejecting both arguments, this court held that the factual disputes were not material to the qualified immunity issue, id., and that, “where the material historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts, it is appropriate for this court to decide whether probable cause existed at the time [the officer] arrested Peng,” id. at 979-80 (emphasis added).
However, in this case historical facts material to the qualified immunity determination are in dispute. Disputes of fact exist as to whether Diana positively identified Torres, whether school police officer Steinberg told Officer Lamar and/or Detective Hickman that Torres had “recently been jumped into the CPA gang,” and whether it was reasonable for the detectives to believe that in the group photo Torres was making a gang sign despite the fact that only one of Torres’ fingers is visible in the photo. These disputes of fact are material because they go to what the detectives knew at the time they arrested Torres and, accordingly, to whether they had probable cause, and reasonably believed they had probable cause, to do so. Taking these facts in the light most favorable to Torres, a reasonable officer would have known that he lacked probable cause for the arrest. Accordingly, Peng does not help Defendants.
With respect to the first Saucier question, we have already determined that a reasonable jury could find that Defendants violated Torres’ constitutional right to be free from arrest without probable cause. See Grant, 315 F.3d at 1089 (“Courts have long held that the Fourth Amendment requires probable cause before an officer may arrest an individual.” (citing Beck, 379 U.S. at 91)). In answering the second question, whether the constitutional right was clearly established, we do not consider the right as a “general proposition.” Saucier, 533 U.S. at 201. Rather, “[t]he relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. “Qualified immunity is an objective inquiry—whether the officers subjectively believed that they had probable cause to arrest [Torres] is irrelevant.” Grant, 315 F.3d at 1089 (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
However, we reach a different conclusion as to Detective Rains. Because Detective Roberts told Rains that Diana had identified Torres and because he did not show Rains Diana‘s written statement on the six-pack, Rains believed that Diana had positively identified Torres.
While “[a]ll officers ... have an ongoing duty to make appropriate inquiries regarding the facts received or to further investigate if sufficient details are relayed,” Motley, 432 F.3d at 1081 (citation omitted), we have explained that “[w]here an officer has an objectively reasonable, good-faith belief that he is acting pursuant to proper authority, he cannot be held liable if the information supplied by other officers turns out to be erroneous.” id. at 1082 (citing United States v. Hensley, 469 U.S. 221, 232 (1985)). “The lynchpin is whether the officer‘s reliance on the information was objectively reasonable.” Id.
In light of what Detective Roberts told Detective Rains after showing the six-pack to Diana, and in light of the undisputed fact that, of the four detectives, Detective Rains was the least involved in the investigation, we conclude as a matter of law that Detectives Rains reasonably relied on the (allegedly false) statement by Detective Roberts that Diana had identified Torres. Based on this conclusion, we further conclude as a matter of law that a reasonable officer in Rains’ position would have believed he had probable cause to arrest Torres. Accordingly, Detective Rains was entitled to qualified immunity as a matter of law.
D.
We deal with the following evidentiary issues to guide the district court on remand. Plaintiffs contend that the district court abused its discretion in denying their motion in limine seeking to bar the testimony of Defendants’ expert witnesses Detective Jack Giroud and Officer Norm Peters on the ground that Defendants failed to provide Plaintiffs written expert reports for those witness pursuant to
We reject Defendants’ argument that Plaintiffs were required, but failed, to articulate how they would be prejudiced if they were not provided an expert witness report. Defendants advance two bases for their argument. First, they contend that the purpose of an expert report is “the elimination of unfair surprise to the opposing party and the conservation of resources,” Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995), and that because ”
The second basis for Defendants’ argument is that
However, we do not reach the same conclusion with respect to Detective Giroud. While Defendants concede that Detective Giroud was an expert witness, not all expert witnesses must provide an expert report. By exclusion,
IV.
We affirm the district court‘s dismissal of Plaintiffs’ case against Detective Hickman and of Plaintiffs’
Plaintiffs are awarded costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.