Kelvin Gant v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELVIN GANT, an individual; No. 12-56080

REGINALD LENARD SMITH; JOSE

ALEXANDER VENTURA, D.C. No.

Plaintiffs-Appellants, 2:08-cv-05756-

GAF-PJW

v.

COUNTY OF LOS ANGELES; LOS OPINION

ANGELES COUNTY SHERIFF’S

DEPARTMENT; CITY OF LOS

ANGELES; CITY OF CHINO; CHINO

POLICE DEPARTMENT; COUNTY OF

SAN BERNARDINO; SAN

BERNARDINO COUNTY SHERIFF’S

DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued April 9, 2014

Submitted May 19, 2014

Pasadena, California

Filed November 24, 2014

2 GANT V. COUNTY OF LOS ANGELES

Before: Sidney R. Thomas, Milan D. Smith, Jr.,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s judgment and remanded in an action brought pursuant

to 42 U.S.C. § 1983 by Kelvin Gant and Jose Alexander

Ventura who alleged that they were mistakenly arrested and

detained based on warrants intended for other people.

The panel held that Gant failed to show that the Los

Angeles defendants’ failure to enter his judicial clearance,

showing his prior exonerations, into the County Warrant

System database violated his Fourth Amendment rights.

Accordingly, the panel affirmed the district court’s dismissal

of Gant’s Fourth Amendment claim against the Los Angeles

City and County defendants.

Addressing Gant’s Fourteenth Amendment wrongful

detention claim, the panel held that because Gant did not

allege that he told the Los Angeles County defendants that he

had a judicial clearance form or that he brought the issue of

mistaken identity to their attention, and because Gant was

detained for the purpose of receiving process and did receive

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GANT V. COUNTY OF LOS ANGELES 3

a prompt hearing, the district court correctly dismissed Gant’s

Fourteenth Amendment claim against the Los Angeles

County defendants.

The panel held that Ventura’s Fourth Amendment

wrongful detention claims against the Los Angeles City and

County defendants and the San Bernardino defendants were

foreclosed by Rivera v. County of Los Angeles, 745 F.3d 384

(9th Cir. 2014). The panel further held that Ventura did not

meet his burden of showing that his mistaken arrest by the

City of Chino Police Department was more than a single,

“isolated or sporadic” incident.

Addressing Ventura’s Fourteenth Amendment claim

against the San Bernardino defendants, the panel held that

Ventura failed to raise a material issue of fact about whether

defendants have a policy of not requiring fingerprint

comparisons after detainees complain they have been

mistakenly arrested or whether accessing alternate police

record systems would necessarily have revealed that Ventura

was not the warrant’s true subject.

Reversing the district court’s dismissal of Ventura’s

Fourteenth Amendment against the Los Angeles County

defendants and the district court’s dismissal of the California

Bane Act claims against the City of Chino defendants, the

panel held that (1) the conflicting evidence about whether

Ventura complained to Los Angeles County defendants that

they had the wrong person raised a genuine issue of material

fact; and (2) a trier of fact could conclude that Chino police

officers’ quick, insistent questioning was intended to coerce

Ventura.

4 GANT V. COUNTY OF LOS ANGELES

COUNSEL

Donald W. Cook (argued) and Robert Mann, Mann & Cook

Law Offices, Los Angeles, California, for Plaintiffs-

Appellants.

Michael Allen, Lawrence Beach Allen & Choi, P.C.,

Glendale, California, for Defendants-Appellees County of

Los Angeles, Los Angeles County Sheriff’s Department, and

City of Los Angeles.

Scott Eric Caron (argued), Lawrence Beach Allen & Choi,

P.C., Glendale, California, for Defendants-Appellees County

of Los Angeles, Los Angeles County Sheriff’s Department,

and County of San Bernardino.

Lisa S. Berger, Deputy City Attorney, Los Angeles City

Attorney’s Office, Los Angeles, California, for Defendant-

Appellee City of Los Angeles.

Jules Solomon Zeman (argued), Haight Brown & Bonesteel

LLP, Los Angeles, California, for Defendants-Appellees City

of Chino and the Chino Police Department.

James H. Thebeau (argued), Deputy County Counsel, County

of San Bernardino, San Bernardino, California, for

Defendants-Appellees County of San Bernardino and San

Bernardino County Sheriff’s Department.

GANT V. COUNTY OF LOS ANGELES 5

OPINION

CHRISTEN, Circuit Judge:

This is a case of mistaken identity arising from the

separate arrests and detentions of Kelvin Gant and Jose

Alexander Ventura based on warrants intended for other

people. Appellants filed over twenty federal and state law

claims alleging that various defendants issued flawed

warrants, improperly arrested them, or improperly detained

them. The district court ruled against all of appellants’ claims

in orders granting defendants’ motions to dismiss and

motions for summary judgment. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We reverse the district court’s

judgment on Ventura’s Fourteenth Amendment § 1983 claim

against the L.A. County defendants and Ventura’s Bane Act

claim against the Chino defendants. We otherwise affirm the

district court’s rulings.1

BACKGROUND

The defendants in this case are the County of Los Angeles

and the Los Angeles County Sheriff’s Department (“the L.A.

County defendants”), the City of Los Angeles and the Los

Angeles Police Department (“the L.A. City defendants”), the

City of Chino and the Chino Police Department (“the Chino

defendants”), and the County of San Bernardino and the San

1

We address Gant’s Bane Act and false imprisonment claims, Ventura’s

Bane Act and false imprisonment claims against the L.A. County and San

Bernardino defendants, and claims brought by a third appellant, Reginald

Lenard Smith, in a separately-issued memorandum disposition filed

concurrently with this opinion.

6 GANT V. COUNTY OF LOS ANGELES

Bernardino County Sheriff’s Department (“the San

Bernardino defendants”).

Two arrest warrant systems are relevant to this appeal,

and a brief explanation of both is necessary to understand the

basis for appellants’ claims. The first is the Wanted Persons

System (“WPS”) operated and maintained by the California

Department of Justice (“CDOJ”) to record and track warrants

issued by California state courts. Any California law

enforcement agency can query the WPS database, but only

the agency that procured a warrant can update the entry for it.

The second system is a separate County Warrant System

(“CWS”) operated and maintained by L.A. County to track

and record warrants issued by Los Angeles County courts.

All Los Angeles County-based law enforcement agencies can

query CWS, but, like WPS, only the agency that procures a

warrant can update the entry for it in CWS.

Arrest warrants can contain a subject’s name, date of

birth, address, physical descriptors, and unique identifiers,

including Social Security numbers and various fingerprint-

based identification numbers. The CDOJ assigns a

fingerprint-based Criminal Investigation and Identification

(“CII”) number to its warrants. Los Angeles County agencies

assign a fingerprint-based “L.A. Main” number to their

warrants. CII and L.A. Main numbers can be used to

generate an arrestee’s criminal history, which can include the

subject’s full name, aliases, birth date, residential addresses,

and Social Security and driver’s licence numbers. CII and

L.A. Main numbers can also be used to generate a subject’s

arrest, prosecution, and conviction histories.

When a person is booked into a California jail, his or her

fingerprints are taken and electronically transferred to CDOJ

GANT V. COUNTY OF LOS ANGELES 7

through a process called “Live Scan.” The CDOJ typically

responds after a few minutes in one of two ways. If the

arrestee’s fingerprints are already on file, the subject’s CII

number and criminal history are sent to the arresting agency.

If the arrestee’s fingerprints are not on file, the CDOJ assigns

the arrestee a new CII number and informs the arresting

agency.

I. Appellants’ Claims

A. Kelvin Gant

Kelvin Gant (“Gant”) has been arrested on warrants

issued for his non-identical twin brother, Kevin Gant,

between five and seven times.2 The claims Gant raised in this

case stem from a mistaken arrest that occurred on April 29,

2008. Torrance police ran a warrant check in the course of

questioning Gant about allegedly attempting to fraudulently

obtain a refund for a movie ticket. The warrant had been

obtained by the L.A. City defendants, who were responsible

for inputting it into CWS. It named Gant’s brother, “Kevin

Thomas Gant” and included a CII number. Gant was arrested

even though he showed the officer a “judicial clearance form”

verifying that a warrant for “Kevin Gant” was not meant for

him. Torrance police transferred Gant to the custody of the

Los Angeles County Sheriff’s Department.3 In the booking

2

The district court’s April 26, 2011 order indicates that Gant had been

arrested “about five” times. Its October 8, 2009 order indicates he has

been arrested seven times.

3

The district court rejected L.A. County’s argument that Gant was never

in its custody because it was contravened by documentary evidence. At

his deposition, Gant testified that he was never in the custody of L.A.

County, but his complaint alleges that he was, and the record indicates that

8 GANT V. COUNTY OF LOS ANGELES

process, a Live Scan report was obtained. It showed that

Gant had a different CII number than the warrant’s subject,

Kevin Gant. It also included “Kevin Thomas Gant” and

“Kevin T. Gant” as aliases associated with Kelvin Gant’s

fingerprints. Gant was detained overnight and released the

following day after a court appearance. Gant does not allege

that he told the Los Angeles County Sheriff’s department he

had a judicial clearance form.

B. Jose Alexander Ventura

On December 13, 2007, a Chino police officer stopped

Jose Alexander Ventura for a minor traffic violation. The

first fifteen minutes of the stop were audio-recorded. An

officer ran a warrant check and discovered an outstanding

1994 warrant obtained by the L.A. City defendants for “Jose

Ventura.”4 The police dispatcher described the warrant

subject as a Hispanic male who was 6'1" tall, weighed 200

pounds, and had black hair and brown eyes. Ventura showed

the officer a driver’s license that indicated he was 5'6" tall

and weighed 180 pounds.

On the audio tape, an officer can be heard asking Ventura

to step out of his vehicle. After Ventura complied, another

officer arrived and began questioning him. The audio of this

questioning recorded Ventura agreeing with an officer’s

he was. We construe all disputed issues of fact in favor of the non-moving

party. See Alexander v. City & Cnty. of San Francisco, 29 F.3d 1355,

1362 (9th Cir. 1994).

4

The Third Amended Complaint claims the warrant was for “Jose

Ventura Gonzalez Perez,” but the record shows the name on the warrant

was “Jose Ventura.”

GANT V. COUNTY OF LOS ANGELES 9

suggestion that he is 5'11". Ventura alleges that the officers

knew he was 5'6" but coached him to “parrot back” that he

was 5'11". It is clear from the audio recording that English is

Ventura’s second language. One of the officers also

incorrectly told Ventura that the warrant includes Ventura’s

Social Security number.

Ventura was arrested. The Chino Police Department does

not book or hold felony arrestees, but Ventura was

transported to the Chino police station while an officer

obtained the warrant abstract.5 The warrant did not contain

any unique identifiers such as a CII number or Social Security

number. Ventura was then transported to San Bernardino’s

West Valley Detention Center (“WVDC”), where he was

booked and remained for approximately four days.

During booking at WVDC, officials took Ventura’s

fingerprints using Live Scan and electronically transferred

them to CDOJ. The parties dispute whether Live Scan could

have been used to determine whether the warrant was meant

for Ventura because the warrant for “Jose Ventura” did not

include a CII number. But in any case, the San Bernardino

defendants argue that the Live Scan report was not returned

until January 24, 2008, approximately five weeks after

Ventura was arrested. Ventura claims he told a WVDC

officer that he was not the warrant’s true subject, but the San

Bernardino defendants deny Ventura complained that his

arrest was a case of mistaken identity.

5

A warrant abstract is a summary of the warrant that typically contains

the warrant number; the charge; the court or agency of issuance; the

subject’s name, address, and description; the bail amount; and the name

of the issuing magistrate or authority. Cal. Penal Code § 850.

10 GANT V. COUNTY OF LOS ANGELES

After spending four days at WVDC, Ventura was

transferred to the L.A. County jail, where he was held for two

more days. Ventura claims he protested his detention to L.A.

County jail officials, but the L.A. County defendants dispute

this. On December 19, 2007, six days after his arrest,

Ventura appeared before a superior court judge who ordered

his release because a manual comparison showed that his

fingerprints did not match the warrant subject’s prints.6 He

was given a judicial clearance form when he was released.

The form states that he was 5'7" and weighed 320 pounds.

II. Procedural History and Claims

Appellants filed suit in September 2008. They amended

their complaint three times, claiming violations of the Fourth

and Fourteenth Amendments under 42 U.S.C. § 1983,

California’s Bane Act (Cal. Civ. Code § 52.1), and other

claims not relevant here. The district court ruled against

appellants in orders granting defendants’ motions to dismiss

and motions for summary judgment. The motions to dismiss

were decided after the Second Amended Complaint, and the

summary judgment motions were decided after the Third

Amended Complaint. Plaintiffs asked the district court to

reconsider its rulings dismissing certain claims, which it did.

On appeal, Gant claims that if the L.A. City and L.A.

County defendants had updated CWS to reflect his judicial

clearance form, the Torrance police would not have mistaken

him for his brother and arrested him. Gant argues that the

failure to update CWS caused the warrant on which he was

6

Ventura was scheduled to appear in court December 18, 2007. It

appears his arraignment had to be rescheduled to December 19 due to a

delay caused by a medical evaluation.

GANT V. COUNTY OF LOS ANGELES 11

arrested to violate his Fourth Amendment right to be free

from unreasonable seizure. He also argues that the L.A.

County defendants wrongfully detained him in violation of

his Fourth and Fourteenth Amendment rights by relying on

Torrance’s determination that he was the warrant’s intended

subject without any independent verification.

Ventura’s arguments on appeal primarily focus on the

disparity between the physical description that appeared on

his driver’s license and the physical description of “Jose

Ventura” on the arrest warrant. He argues that the L.A. City,

L.A. County, San Bernardino, and Chino defendants all

violated his Fourth Amendment rights, either on particularity

or probable cause grounds; that the L.A. County, San

Bernardino, and Chino defendants all violated his Fourteenth

Amendment due process rights; and that the Chino defendants

violated California’s Bane Act.

STANDARD OF REVIEW

A dismissal for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6) is reviewed de novo.

Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). All

allegations of material fact are taken as true and construed in

the light most favorable to the nonmoving party. Id. A

complaint need not contain detailed factual allegations, but “a

plaintiff’s obligation to provide the grounds of his entitlement

to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (alteration and internal quotation marks omitted).

A district court’s decision to grant summary judgment is

reviewed de novo. Szajer v. City of Los Angeles, 632 F.3d

12 GANT V. COUNTY OF LOS ANGELES

607, 610 (9th Cir. 2011). We must determine, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law. See Olsen v. Idaho State Bd. of Med.,

363 F.3d 916, 922 (9th Cir. 2004).

DISCUSSION

I. Section 1983 Claims

A. Fourth Amendment

The Fourth Amendment provides that “no Warrants shall

issue, but upon probable cause . . . and particularly describing

. . . the persons or things to be seized.” U.S. Const. Amend.

IV.

In Rivera v. County of Los Angeles, 745 F.3d 384 (9th Cir.

2014), our court examined Fourth Amendment particularity

and probable cause issues in claims arising from facts very

similar to those in Gant’s case. The plaintiff in Rivera was

mistakenly arrested twice, in instances twenty years apart, on

a warrant meant for someone else. Id. at 386–87. Rivera’s

physical description closely matched the one in the warrant.

Id. at 387. Rivera obtained a judicial clearance form from the

first arrest, but when asked to produce it during his second

arrest, he could not do so. Id. He was detained for over a

month after the second arrest. Id. Rivera sued Los Angeles

County, the Los Angeles County Sheriff’s Department, San

Bernardino County, and the San Bernardino County Sheriff’s

Department, alleging that his Fourth Amendment rights were

violated: (1) by the failure to include CII numbers in the

warrant on which he was arrested; and (2) because officers

GANT V. COUNTY OF LOS ANGELES 13

lacked probable cause to arrest him. Id. at 387–89. The

district court granted the defendants’ motions for summary

judgment on all of Rivera’s claims. Id. at 387. On appeal,

our court held that the arrest warrant—which did not include

a CII number—“satisfied the particularity requirement

because it contained both the subject’s name and a detailed

physical description.” Id. at 388. As to probable cause, we

concluded “the deputies were not unreasonable in believing

that Rivera was the subject of the warrant” because the name

and birth date on the warrant matched Rivera’s and the height

and weight descriptors “were within one inch and ten pounds

of Rivera’s true size.” Id. at 389.

1. Gant’s Fourth Amendment Claims

a. L.A. City Defendants

Gant resolved his claims against the Torrance police—the

defendants responsible for his arrest—before this case was

appealed to our court, but he appeals the dismissal of his

§ 1983 Fourth Amendment claim against the L.A. City

defendants. The L.A. City defendants obtained the warrant

pursuant to which Gant was arrested, and, according to the

Third Amended Complaint, only the L.A. City defendants

had the ability to update the CWS entry for the warrant.

Unlike Rivera, Gant’s particularity argument is not that the

warrant lacked a CII number; it included one. Rather, Gant

argues that the L.A. City defendants knew he had been

mistakenly arrested on six prior occasions because of the

similarity between his name and his brother’s name, their

similar physical descriptions, and their identical dates of

birth. After numerous mistaken arrests, Gant argues the L.A.

City defendants were aware the description in the warrant

was constitutionally deficient, and that his rights were

14 GANT V. COUNTY OF LOS ANGELES

violated by their failure to enter his prior exonerations into

CWS.

The L.A. City defendants argue that Gant cites no

authority to support his argument that the Fourth Amendment

was violated by the failure to enter Gant’s judicial clearance

form into CWS. They cite Powe v. City of Chicago, 664 F.2d

639, 646 (7th Cir. 1981), for the proposition that courts have

“traditionally found a warrant that truly names the arrestee or

describes him sufficiently to identify him” satisfies the Fourth

Amendment’s particularity requirement. The district court,

citing Powe, granted the L.A. City defendants’ motion to

dismiss after concluding that the warrant satisfied the Fourth

Amendment because Gant did not allege that the warrant

“failed to correctly name the proper subjects of the warrant,”

and because the warrant contained a CII number.

In Rivera, we held that the Fourth Amendment’s

particularity requirement was satisfied because the warrant

“contained both the subject’s name and a detailed physical

description,” even though it did not contain a CII number.

Rivera, 745 F.3d at 388. This is consistent with our long-

standing case law defining the contours of the Fourth

Amendment’s particularity requirement. See West v. Cabell,

153 U.S. 78, 85 (1894) (“[A] warrant for the arrest of a

person charged with [a] crime must truly name him, or

describe him sufficiently to identify him.”).7 Here, because

7

Gant argues that two cases, United States v. Cardwell, 680 F.2d 75 (9th

Cir. 1982), and United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986), are

dispositive as to his Fourth Amendment claims. These cases, however,

address search warrants, not arrest warrants, and we are aware of no

authority incorporating the rules articulated in these cases into our case

law regarding the adequacy of arrest warrants.

GANT V. COUNTY OF LOS ANGELES 15

the warrant for Kevin Gant contained his correct name, date

of birth, a physical description, and a CII number, we would

hold that the warrant adequately identified its true subject,

were that the issue before us. But Gant does not challenge

the constitutionality of the warrant issued by the court for his

brother. The issue he raises is whether the failure of a law

enforcement agency to update a warrant abstract in its

computerized database violates the Fourth Amendment’s

particularity requirement when an individual, like Kelvin

Gant, can show that the description has resulted in his

mistaken arrest on approximately seven different occasions.8

It is undisputed that Gant had his judicial clearance form

with him when he was arrested, and he showed it to the

Torrance police officers. The record shows that the Torrance

Police were able to access Gant’s CII number via Live Scan

shortly after Gant was fingerprinted during the booking

process, and Live Scan reported a CII number for Gant that

was plainly different from his brother’s.9 As the district court

8

Gant alleges the L.A. City defendants caused the warrant’s issuance.

Because the court that issued the warrant is not a defendant, we

understand him to rely on Cal. Civ. Code § 43.55(b). That statute

provides that:

a ‘warrant of arrest regular upon its face’ includes both

of the following: (1) A paper arrest warrant that has

been issued pursuant to a judicial order. (2) A judicial

order that is entered into an automated warrant system

by law enforcement or court personnel authorized to

make those entries at or near the time the judicial order

is made.

9

We cannot determine from the record whether Gant’s CII number

appeared on the judicial clearance form he showed to Torrance police, but

the record does include a Live Scan report that was received by Torrance

16 GANT V. COUNTY OF LOS ANGELES

noted, these different CII numbers conclusively established

that Gant was not the subject of his brother’s warrant. The

Torrance police, however, failed to realize this.

The outcome of Gant’s Fourth Amendment claim against

the L.A. City defendants might be different if the warrant for

Kevin Gant did not include a CII number. For warrants that

do not contain CII numbers, or in instances where the entry

of a CII number has not been sufficient, inputting notice of

judicial clearance forms in law enforcement databases may be

necessary to prevent repeated mistaken arrests. But in this

case, we cannot say that the L.A. City defendants violated

Gant’s Fourth Amendment rights; the arresting officers had

access to Gant’s brother’s CII number and Gant’s CII number

on the evening of his arrest, and the warrant was sufficiently

particular to rule out Gant. Gant did not show that the failure

to enter his judicial clearance form rendered the warrant

abstract insufficiently particular or that the absence of such an

entry was the proximate cause of his mistaken arrest. The

district court did not err by dismissing Gant’s Fourth

Amendment § 1983 claim against the L.A. City defendants.10

b. L.A. County Defendants

Gant asserts the same Fourth Amendment particularity

claim (failure to update CWS to reflect prior exonerations)

police on the evening Gant was arrested. It states: “Your subject has been

identified by fingerprints as NAM/Gant, Kelvin Thomas

DOB/1963[redaction] CII/A06572567.” The warrant for Kevin Gant

listed his CII number as A06776321.

10

Gant does not argue on appeal that the L.A. City defendants’ failure

to update CWS to reflect his prior exonerations violated his Fourteenth

Amendment due process rights.

GANT V. COUNTY OF LOS ANGELES 17

against the L.A. County defendants. This claim was properly

dismissed. The Third Amended Complaint alleged that only

the agency that procures a warrant can update the

computerized entry of it. It also alleged that the L.A. City

defendants, not the L.A. County defendants, obtained the

warrant for Gant’s brother. The district court’s order

dismissing Gant’s Fourth Amendment claim against the L.A.

County defendants is affirmed.11

2. Ventura’s Fourth Amendment Claims

a. L.A. City Defendants

The L.A. City defendants also obtained the arrest warrant

for “Jose Ventura” and were responsible for inputting it into

CWS and WPS. As in Rivera, Ventura argues that the L.A.

City defendants violated the Fourth Amendment’s

particularity requirement by identifying the warrant’s subject

in CWS and WPS without including the known CII number

for the warrant’s true subject. He also argues the warrant was

infirm because the L.A. Main number was not included.

Ventura’s claim is foreclosed by Rivera, which concluded

that the warrant at issue there “satisfied the particularity

requirement because it contained both the subject’s name and

a detailed physical description,” even though it did not

include a CII number. Rivera, 745 F.3d at 388. The district

court’s order dismissing Ventura’s Fourth Amendment claim

against the L.A. City defendants is affirmed.

11

Gant argued that the L.A. County defendants violated his Fourth

Amendment rights by not comparing his CII number to the CII number on

the warrant. That claim is actually a Fourteenth Amendment claim, and

we address it as such, infra. Rivera, 745 F.3d at 389–90 (“[P]ost-arrest

incarceration is analyzed under the Fourteenth Amendment alone.”).

18 GANT V. COUNTY OF LOS ANGELES

b. Chino Defendants

Ventura argues that when the Chino defendants arrested

him, they did not have probable cause to believe that he was

the subject of the arrest warrant for “Jose Ventura” because

of the “radical discrepancies” between the height, weight,

name, and residence on Ventura’s driver’s license and the

warrant’s description of its subject. He also argues the Chino

defendants had access to his criminal history, which shows no

criminal record. The district court evaluated whether Ventura

could prevail on a Fourth Amendment § 1983 claim against

the Chino defendants based on the “customs and policies”

standard set out in Lee v. City of Los Angeles, 250 F.3d 668

(9th Cir. 2001). Under that standard, to prevail on a Fourth

Amendment § 1983 claim against a municipal defendant or

sheriff’s department, a plaintiff must show: (1) that he was

“deprived of [his] constitutional rights by defendants and

their employees acting under color of state law; (2) that the

defendants have customs or policies which amount to

deliberate indifference to . . . constitutional rights; and

(3) that these policies [were] the moving force behind the

constitutional violations.” Id. at 681–82 (internal quotation

marks and alterations omitted); see also Monell v. Dep’t of

Social Servs., 436 U.S. 658, 691 (local governmental entities

liable under § 1983 when “action pursuant to official

municipal policy of some nature caused a constitutional

tort”).

The district court agreed that whether the arresting officer

“could have had a reasonable belief that Ventura was the

warrant’s subject, despite the height and weight

discrepancies,” was a question of fact for the jury, but it

granted the Chino defendants’ summary judgment motion

because it decided Ventura had not raised a triable issue of

GANT V. COUNTY OF LOS ANGELES 19

fact about whether the defendants had a policy amounting to

deliberate indifference to Ventura’s constitutional rights.

Whether Ventura’s opposition was sufficient to survive

the Chino defendants’ summary judgment motion is a close

question. A Chino officer testified that Ventura’s arrest was

in accordance with its custom, policy, or practice. Chino also

argues that in over twenty years before Ventura’s allegations,

it “had not had any incident, lawsuit, or tort claim alleged

against it for an improper arrest based on a factually correct

warrant.” Ventura argues the Chino defendants admitted

liability by conceding that his arrest was in accordance with

their policies, but the Chino defendants did not concede

deliberate indifference.

We agree with the district court’s assessment that the

question is “whether a policy that would permit an arrest on

a warrant issued for someone seven inches taller and 120

pounds lighter evinces a ‘deliberate indifference’” to

Ventura’s constitutional rights. In Oviatt v. Pearce, this court

explained that deliberate indifference to a person’s

constitutional rights occurs when the need for more or

different action:

is so obvious, and the inadequacy [of the

current procedure] so likely to result in the

violation of constitutional rights, that the

policymakers . . . can reasonably be said to

have been deliberately indifferent to the need.

Whether a local government entity has

displayed a policy of deliberate indifference is

generally a question for the jury.

20 GANT V. COUNTY OF LOS ANGELES

954 F.2d 1470, 1477–78 (1992) (emphasis added) (internal

citation and quotation marks omitted).

The Chino defendants’ warrant arrest policy states, in

pertinent part: “Warrant arrests will be made when the person

has a confirmed, active warrant in the Wanted Persons

System (WPS).” The district court reasoned:

Although this policy contains no guidelines

regarding how closely a suspect must match a

warrant description to authorize an arrest,

Ventura has put forth no evidence suggesting

that this omission amounts to deliberate

indifference. For example, Ventura presents

no evidence that the policy has resulted in

violations in the past or that it is likely to lead

to future violations. It is not obvious that the

policy’s lack of guidelines regarding

descriptors is inadequate; indeed, it is not

even clear that such guidelines would be

helpful.

The district court was correct that Ventura did not provide

evidence that the policy has resulted in past violations or that

it is likely to lead to future violations. Further, “[p]roof of a

single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be

attributed to a municipal policymaker.” Okla. City v. Tuttle,

471 U.S. 808, 823–24 (1985); see also Trevino v. Gates,

99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper

custom may not be predicated on isolated or sporadic

incidents; it must be founded upon practices of sufficient

GANT V. COUNTY OF LOS ANGELES 21

duration, frequency and consistency that the conduct has

become a traditional method of carrying out policy.”).

Ventura did not meet his burden of showing that this

mistaken arrest was more than a single, “isolated or sporadic”

incident. We therefore affirm the district court’s order

granting summary judgment to the Chino defendants on

Ventura’s § 1983 Fourth Amendment claim.

c. San Bernardino Defendants

Ventura also challenges the order granting summary

judgment on his § 1983 Fourth Amendment claim arising

from his four-day post-arrest detention by the San Bernardino

defendants at WVDC. Rivera forecloses this argument,

745 F.3d at 389–90 (“[P]ost-arrest incarceration is analyzed

under the Fourteenth Amendment alone.”), and we affirm the

dismissal of this claim.

d. L.A. County Defendants

The L.A. County defendants detained Ventura for two

days immediately prior to his court appearance. Ventura

made identical Fourth Amendment claims against the L.A.

County defendants as he did against the L.A. City defendants,

arguing that they violated the Fourth Amendment’s

particularity requirement by identifying the warrant’s subject

in CWS and WPS without including known CII and L.A.

Main numbers for the warrant’s true subject. But the Third

Amended Complaint alleged that the L.A. City defendants,

not the L.A. County defendants, procured the warrant. Based

on the facts alleged in the complaint, the L.A. County

defendants could not have updated the databases, so we

affirm the district court’s order dismissing this claim.

22 GANT V. COUNTY OF LOS ANGELES

Ventura also challenges his two-day detainment after

arrest by the L.A. County defendants under the Fourth

Amendment. Because “post-arrest incarceration is analyzed

under the Fourteenth Amendment alone,” id., the district

court did not err by dismissing this Fourth Amendment claim.

B. Fourteenth Amendment

Gant and Ventura challenge their post-arrest detainment

under the Fourteenth Amendment. In Baker v. McCollan, the

Supreme Court held that “mere detention pursuant to a valid

warrant but in the face of repeated protests of innocence will

after the lapse of a certain amount of time deprive the

accused of ‘liberty . . . without due process of law.’”

443 U.S. 137, 145 (1979) (emphasis added). And in Lee, we

confirmed that wrongful detention can ripen into a due

process violation, but it is a plaintiff’s burden to show that “it

was or should have been known [by the defendant] that the

[plaintiff] was entitled to release.” 250 F.3d at 683 (quoting

Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th Cir. 1993)).

Lee did not define the point at which repeated pleas of

innocence ripen into a Fourteenth Amendment violation.

We have held that a public entity can be liable under the

Fourteenth Amendment for failing to “institut[e] readily

available procedures for decreasing the risk of erroneous

detention.” Fairley v. Luman, 281 F.3d 913, 918 (9th Cir.

2002) (plaintiff held for twelve days without hearing, court

appearance, or fingerprint comparison).12 Both the district

12

The court applies the balancing test established in Mathews v.

Eldridge, 424 U.S. 319 (1976), to determine whether procedural

protections comport with due process. Fairley, 281 F.3d at 918 n.6. To

identify what process is due, the Court considers:

GANT V. COUNTY OF LOS ANGELES 23

court and Rivera, 745 F.3d at 390–91, reiterated these

precedents.

1. Gant’s Fourteenth Amendment Claims

a. L.A. County Defendants

After the Torrance police arrested Gant, they transferred

him into the L.A. County defendants’ custody. Gant argues

the L.A. County defendants detained him in violation of his

right to due process by relying on Torrance’s determination

that he was the warrant’s intended subject without verifying

this fact themselves. But the record does not show that Gant

brought his judicial clearance form to the L.A. County

defendants’ attention or otherwise objected to his detention

by L.A. County. Instead, he argues that the L.A. County

defendants should have known he was not the person

described in the warrant because Gant and his brother’s non-

matching CII numbers were “reflected in the documentation.”

We understand Gant to impliedly argue that a non-arresting

agency has an affirmative duty to verify an arrestee’s identity.

[f]irst, the private interest that will be affected by the

official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.

Mathews, 424 U.S. at 335.

24 GANT V. COUNTY OF LOS ANGELES

A wrongful detention can ripen into a due process

violation if “it was or should have been known [by the

defendant] that the [plaintiff] was entitled to release.” Lee,

250 F.3d at 683 (quoting Cannon, 1 F.3d at 1563). But to

prevail here, Gant would have to show that he was deprived

of a constitutional right under color of state law, that

defendants’ customs or policies amounted to deliberate

indifference to constitutional rights, and that these policies

were the moving force behind the violations. Id. at 681–82.

The district court granted summary judgment for L.A.

County on Gant’s wrongful detention claim because Gant was

held in L.A. County custody “for the sole purpose of

appearing in court.” The district court observed that Gant

cited “no authority indicating that a custodial agency that

briefly holds a detainee while he awaits a court appearance

that same day can be liable for over-detention in violation of

the Fourteenth Amendment.” Gant does not attempt to rebut

this point on appeal, and the record indicates that Gant was

only in L.A. County custody overnight and until his court

appearance the afternoon the following day.

The L.A. County defendants cite Baker v. McCollan in

support of their argument that a law enforcement agency “is

under no duty to investigate the arrestee’s identity, even if the

arrestee complains he is not the person wanted by the

warrant, and even if the agency has information in its

possession that, if examined, would exonerate the arrestee.”

Baker held:

We may even assume, arguendo, that,

depending on what procedures the State

affords defendants following arrest and prior

to actual trial, mere detention pursuant to a

GANT V. COUNTY OF LOS ANGELES 25

valid warrant but in the face of repeated

protests of innocence will after the lapse of a

certain amount of time deprive the accused of

“liberty . . . without due process of law.” But

we are quite certain that a detention of three

days over a New Year’s weekend does not

and could not amount to such a deprivation.

443 U.S. at 145 (emphasis added). Baker supports the L.A.

County defendants’ argument that brief detention on a

facially valid warrant may not give rise to a due process

violation depending upon the procedures the state affords, but

it does not support the L.A. County defendants’ much broader

assertion that no liability can attach where a jailer “has

information in its possession that, if examined, would

exonerate the arrestee.”

To resolve Gant’s Fourteenth Amendment claim, we need

only apply the Mathews v. Eldridge balancing test to the facts

presented in this case. Because Gant did not allege that he

told the L.A. County defendants he had a judicial clearance

form or that he otherwise called this case of mistaken identity

to their attention, and because Gant was detained for the

purpose of receiving process and did receive a prompt

hearing, the district court correctly dismissed Gant’s

Fourteenth Amendment claim against the L.A. County

defendants.

2. Ventura’s Fourteenth Amendment Claims

a. Chino Defendants

The Chino defendants did not detain Ventura beyond his

arrest. The district court correctly concluded that the

26 GANT V. COUNTY OF LOS ANGELES

reasonableness of their arrest of Ventura should be analyzed

under the Fourth Amendment, not as a post-arrest detainment

claim under the Fourteenth Amendment. See Rivera,

745 F.3d at 389–90. We affirm the order granting summary

judgment for the Chino defendants on Ventura’s Fourteenth

Amendment claim.

b. San Bernardino Defendants

In Rivera, we said:

Cases holding that an incarceration violated

the Due Process Clause because defendants

should have known the plaintiff was entitled

to release fit at least one of two categories:

(1) the circumstances indicated to the

defendants that further investigation was

warranted, or (2) the defendants denied the

plaintiff access to the courts for an extended

period of time.

But the “further investigation” cases have

involved significant differences between the

arrestee and the true suspect. In Fairley, for

example, the plaintiff and the true subject of

the warrant not only had different first names

but also differed in weight by 66 pounds.

281 F.3d at 915.

745 F.3d at 390–91. Ventura’s Fourteenth Amendment claim

against the San Bernardino defendants falls into the second

category. He argues that “circumstances indicated to the

defendants that further investigation was warranted.”

GANT V. COUNTY OF LOS ANGELES 27

The San Bernardino defendants detained Ventura at

WVDC for four days after he was arrested and before he was

transferred to the custody of the L.A. County defendants.

Ventura alleges that he complained to WVDC staff about his

wrongful detention, and that there were very significant

discrepancies between the physical descriptors on his driver’s

license and the physical descriptors on the warrant. At his

deposition, Ventura testified that he complained to an officer

at WVDC that he was “not the person you’re looking for.”

Ventura also testified that he complained to the arresting

officer that he had “the wrong person.” Ventura argues the

San Bernardino defendants could have used several means to

determine whether he was the warrant’s true subject,

including by conducting fingerprint comparisons and by

accessing “police criminal records information systems.”

The San Bernardino defendants respond that there is no

record of Ventura’s complaints, and that if he had raised such

a complaint, it would have been memorialized. They also

argue that they could not have determined that Ventura was

not the warrant’s true subject through the means Ventura

suggests.

The district court recognized there was a triable issue of

fact about whether Ventura complained to the San Bernardino

defendants that they had the wrong person, but the district

court ruled that Ventura did not offer any evidence showing

the jailers’ failure to conduct a fingerprint comparison was

pursuant to an official policy or practice. In fact, the district

court noted that the San Bernardino defendants filed the

declaration of a custody specialist (“the Walstrom

declaration”) in conjunction with its summary judgment

motion, and the declaration explained that San Bernardino’s

policy does require fingerprint comparisons when a detainee

complains of mistaken identity. The district court further

28 GANT V. COUNTY OF LOS ANGELES

ruled that Ventura did not show that accessing an alternate

police records system would have established he was not the

warrant’s true subject because the lack of a criminal history,

by itself, does not eliminate the possibility that a person is the

subject of a warrant.

Viewing the evidence in the light most favorable to

Ventura, we assume the significant discrepancies between the

physical descriptors on Ventura’s driver’s license and the

physical descriptors on the warrant did raise the concern that

the wrong man was being detained, just as we assume that

Ventura voiced his objection to the San Bernardino

defendants—though the evidence on this point is conflicting.

Ventura’s Fourteenth Amendment claim against the San

Bernardino defendants fails because assuming these facts to

be true does not establish that San Bernardino’s failure to

investigate Ventura’s complaint was the result of an official

policy or practice.

We agree with the district court that Ventura did not raise

a material issue of fact about whether the San Bernardino

defendants had a policy of not requiring fingerprint

comparisons after detainees complain they have been

mistakenly arrested. Ventura failed to controvert evidence

that it was the San Bernardino defendants’ practice to

investigate a warrant arrestee’s claim of wrongful identity.

Further, “[t]hat officials apparently failed to implement [a]

policy properly in this one instance is not sufficient for” the

San Bernardino defendants to be liable. Rivera, 745 F.3d at

389. After reviewing the record, we also agree with the

district court that Ventura did not show that accessing

alternate police record systems would necessarily have

revealed that Ventura was not the warrant’s true subject. The

lack of a criminal history would not have established that

GANT V. COUNTY OF LOS ANGELES 29

Ventura was being erroneously detained, because warrants

are sometimes issued for individuals with no prior offenses,

and individuals without criminal histories can have CII

numbers. Indeed, Ventura has no criminal history, but

because he has been a foster parent, and because he is a

lawful immigrant who has been given political asylum, he has

a CII number. We therefore affirm the district court’s order

granting summary judgment for the San Bernardino

defendants on Ventura’s Fourteenth Amendment claim.

c. L.A. County Defendants

Ventura argues that the L.A. County defendants violated

his Fourteenth Amendment rights because they detained him

even though they should have known that he was not the

subject of the “Jose Ventura” warrant. The L.A. County

defendants detained Ventura for two days while he waited for

a court appearance. In granting summary judgment for the

L.A. County defendants, the district court found “no evidence

from which a reasonable jury could conclude that Ventura

complained to any L.A. County official that he was not the

subject of the warrant.” The district court based this finding

on Ventura’s deposition testimony; when asked if he had ever

complained to anyone while at the L.A. County Jail, Ventura

testified, “I decided not to say anything because anyway I

would be ignored.” Asked the follow-up question, “So you

made no complaints to anybody at the Los Angeles County

Jail; correct?” Ventura responded, “Not to anyone.” But

Ventura’s deposition also included his statement that he told

the woman who took his fingerprints at the L.A. County Jail

(in Spanish), “I think they’re confused about me. I’m not the

person you’re looking for.” The district court reasoned that

“[s]tanding alone, this [statement] might be enough to raise

a triable issue of fact as to whether Ventura complained to

30 GANT V. COUNTY OF LOS ANGELES

anyone such that County officials would have had a duty to

verify his identity,” but because the record included

Ventura’s other sworn and unequivocal statements, the court

concluded that there was not a triable issue of fact about

whether Ventura complained his arrest was a mistake. The

district court dismissed Ventura’s Fourteenth Amendment

claim against the L.A. County defendants after applying the

Mathews v. Eldridge balancing test and concluding, “due

process does not require a custodial agency to confirm a

detainee’s identity where the detainee does not complain that

he has been wrongfully incarcerated.”

Ventura argues on appeal that the district court’s decision

on this point is inconsistent with the summary judgment

standard. We agree. The conflicting evidence about whether

Ventura complained to the L.A. County defendants that they

had the wrong person raises a genuine issue of material fact.

We therefore reverse the district court’s order dismissing

Ventura’s Fourteenth Amendment claim against the L.A.

County defendants.

II. Bane Act Claim

Ventura asserts a Bane Act claim against the Chino

defendants. California’s Bane Act creates a cause of action

when a defendant “interferes by threats, intimidation, or

coercion, or attempts to interfere by threats, intimidation, or

coercion, with the exercise or enjoyment . . . of rights secured

by the Constitution or laws of the United States, or of the

rights secured by the Constitution or laws of [California].”

Cal. Civ. Code § 52.1(a), (b). Under California law, public

entities are liable for actions of their employees within the

scope of employment, Cal. Gov’t Code § 815.2(a), but public

entities are immune from liability to the extent their

GANT V. COUNTY OF LOS ANGELES 31

employees are immune from liability, Cal. Gov’t Code

§ 815.2(b). An officer is not liable for “an arrest pursuant to

a warrant of arrest regular upon its face if the peace officer in

making the arrest acts without malice and in the reasonable

belief that the person arrested is the one referred to in the

warrant.” Cal. Civil Code § 43.55(a). Rivera discussed these

statutory provisions, cited Lopez v. City of Oxnard, 254 Cal.

Rptr. 556 (Cal. Ct. App. 1989), and relied on statutory

immunity in affirming the district court’s order granting

summary judgment on Rivera’s Bane Act claim. Rivera,

745 F.3d at 393.

Lopez was arrested in another case of mistaken identity.

The Lopez court held that the sheriff’s department that jailed

Lopez was not liable for false imprisonment, despite failing

to consider his “disposition sheet,”13 because jail personnel

“are entitled to rely on process and orders apparently valid on

their face,” 254 Cal. Rptr. at 560, and the person named in the

warrant had “the same name, birth date, address and physical

description” as Lopez, id. at 557.

As we have noted, unlike Lopez, Ventura did not come

close to matching the physical description in the subject

warrant, and he argued in the district court that the Chino

police encouraged him to “parrot back” that was 5'11", not

5'6" as stated on his driver’s license. He repeats the same

argument on appeal. There is limited Bane Act precedent

defining what constitutes “coercion” independent from that

which is inherent in a wrongful arrest, but Shoyoye v. County

of Los Angeles indicates that such conduct must be

“intentionally coercive and wrongful, i.e., a knowing and

13

The disposition sheet seems to have been comparable to the judicial

clearance form given to Gant. 254 Cal. Rptr. at 557.

32 GANT V. COUNTY OF LOS ANGELES

blameworthy interference with the plaintiffs’ constitutional

rights.” 137 Cal. Rptr. 3d 839, 850 (Cal. Ct. App. 2012).

Considering the audio tape of Ventura’s arrest in the light

most favorable to him, we conclude the officers’ actions raise

a genuine issue of fact regarding whether the officers coerced

Ventura into saying he was 5'11". First, the audio tape

memorializes that the dispatcher told the officer who pulled

Ventura over that the true warrant subject was 6'1". Second,

the driver’s license Ventura produced when he was stopped

recorded his height at 5'6". The most temporally proximate

measure of Ventura’s stature, which appears on the judicial

clearance form he received just six days after this arrest,

shows his height as 5'7" and his weight as 320 pounds.

People gain and lose weight, but they do not shrink six or

seven inches in height.14 Third, one of the arresting officers

told Ventura that the warrant included his Social Security

number; even though, as the Chino defendants’ appellate

brief concedes,“[t]he warrant contained no numeric

identifiers, such as [a] Social Security number.” Given these

circumstances, a trier of fact could conclude that the officers’

quick, insistent questioning was intended to coerce Ventura

into stating that he was 5'11". We therefore reverse the

district court’s order granting the Chino defendants’ summary

judgment motion on Ventura’s Bane Act claim.

14

San Bernardino claims that the only objective measurement of

Ventura’s height was made by defendants at Ventura’s deposition, when

Ventura allegedly measured 5'10". This was an estimate, at best. It was

made by observing Ventura’s approximate height in relation to a

videographer’s background screen at his deposition, and then using a

measuring tape after Ventura left the room to measure Ventura’s

“approximate height based on our observation as to how tall Plaintiff

Ventura was compared to the screen behind him each time he stood.”

GANT V. COUNTY OF LOS ANGELES 33

CONCLUSION

We REVERSE the orders dismissing Ventura’s § 1983

Fourteenth Amendment claim against the L.A. County

defendants and his Bane Act claim against the Chino

defendants. In all other respects, we AFFIRM the judgment

of the district court. We REMAND this case to the district

court for proceedings consistent with this opinion. The

parties shall bear their own costs on appeal.