Alford v. Haner

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEROME ANTHONY ALFORD,  No. 01-35141

Plaintiff-Appellant, D.C. No.

v. CV-99-05586-RJB

JOI HANER, a Washington State ORDER

Patrol Officer; JANE DOE HANER, GRANTING

his wife; GERALD DEVENPECK, Sgt.,  PETITION FOR

Washington State Patrol; JANE DOE REHEARING,

DEVENPECK, his wife, DENYING

Defendants-Appellees. PETITION FOR

REHEARING EN

BANC, AND

 AFFIRMING

Filed April 26, 2006

Before: James R. Browning, Betty B. Fletcher, and

Ronald M. Gould, Circuit Judges.

Order;

Dissent by Judge B. Fletcher

ORDER

Judges Browning and Gould voted to grant the petition for

rehearing; Judge B. Fletcher voted to deny it. The petition for

rehearing en banc was circulated to the full court. No judge

has requested a vote on rehearing en banc. The petition for

rehearing is GRANTED and the petition for rehearing en banc

is DENIED. The Order filed on August 9, 2005, appearing at

418 F.3d 1004, is withdrawn.

4643

4644 ALFORD v. HANER

This case returns to us on remand from the Supreme Court.

Devenpeck v. Alford, 543 U.S. 146 (2004), reversing Alford

v. Haner, 333 F.3d 972 (9th Cir. 2003). We must now address

whether or not Defendants had probable cause to arrest Alford

for the offenses of obstructing a law enforcement officer or

impersonating a law enforcement officer. See id. at 156.

Alford argues we should remand because there are disputed

material facts as to the existence of probable cause and the

possibility of qualified immunity. We disagree.

We review a denial of a motion for new trial for abuse of

discretion, and we can reverse such a denial only if the district

court makes a legal error in applying the standard for a new

trial or the record contains no evidence that can support the

verdict. Graves v. City of Coeur d’Alene, 339 F.3d 828, 839

(9th Cir. 2003); Landes Constr. Co. v. Royal Bank of Canada,

833 F.2d 1365, 1372 (9th Cir. 1987). In our original decision,

we reversed because we determined that the record contained

no evidence to support the jury’s verdict in Defendants’ favor.

We held that a reasonable jury could not have concluded Offi-

cer Haner had probable cause to arrest or was entitled to qual-

ified immunity because the actions for which Alford was

arrested and charged were in fact lawful. Alford, 333 F.3d at

979. Critical to our analysis was our understanding, following

the since-rejected “closely related offense” rule, that “proba-

ble cause to arrest for other unrelated offenses, if present,

does not cure the lack of probable cause here.” Id. at 976-77.

As Alford has never argued that the district court made legal

error in applying the standard for a new trial, we must now

affirm if there is any evidence in the record which supports

the jury’s verdict.

After careful review, the majority finds that there is suffi-

cient evidence in the record to support a finding of objective

probable cause to arrest Alford for the misdemeanor offense

of criminal impersonation in the second degree. See Wash.

Rev. Code § 9A.60.040(3) (West 1996).1 Specifically, the jury

1

In relevant part § 9A.60.040(3) states:

A person is guilty of criminal impersonation in the second

ALFORD v. HANER 4645

heard testimony that, at the time he arrested Alford, Officer

Haner had been told by the motorists Alford aided that they

thought he was a police officer and he had been using wig-

wag headlights when he pulled in behind them.2 Additionally,

Haner himself observed a police-style radio, a portable radio

scanner, and handcuffs in Alford’s car prior to the arrest. We

conclude that those facts and circumstances are sufficient to

warrant a reasonable officer in Haner’s position to believe

that Alford had impersonated a law enforcement officer. See

id.; Maryland v. Pringle, 540 U.S. 366, 371 (2003); Brinegar

v. United States, 338 U.S. 160, 175-76 (1949) (“Probable

cause exists where the facts and circumstances within . . . [the

officers’] knowledge and of which they had reasonably trust-

worthy information [are] sufficient in themselves to warrant

a man of reasonable caution in the belief that an offense has

been or is being committed.” (citation and internal quotation

marks omitted)).

Given the unique circumstances of this case, we briefly

degree if the person:

(a) Claims to be a law enforcement officer or creates an impres-

sion that he or she is a law enforcement officer; and

(b) Under circumstances not amounting to criminal imperson-

ation in the first degree, does an act with intent to convey the

impression that he or she is acting in an official capacity and a

reasonable person would believe the person is a law enforcement

officer.

2

Alford has argued that there could not have been probable cause for

this offense because his alleged use of wig-wag lights and original interac-

tion with the motorists did not occur in Officer Haner’s presence. It may

be that Alford’s arrest violated Washington law in this regard. See Wash.

Rev. Code § 10.31.100 (West 1996) (authorizing warrantless misdemea-

nor arrest only when the offense is committed in the presence of the offi-

cer or is a listed offense). However, in the absence of direction from the

Supreme Court, we have held that the common law “in the presence”

requirement is not a constitutional one. See Barry v. Fowler, 902 F.2d 770,

772 (9th Cir. 1990).

4646 ALFORD v. HANER

address the adequacy of the jury instructions. Although we

would expect a court normally to give instruction on all sup-

porting offenses when charging a civil jury with determining

probable cause, that did not happen in this case. The jury was

instructed on Washington’s Privacy Act but not on

§ 9A.60.040 impersonation. We need not decide whether the

lack of that instruction was erroneous because any error in its

omission, in this case, was harmless.

Most importantly, the jury was properly instructed, without

objection, on probable cause. The language of that instruction

alone is sufficient to support their verdict.3 Moreover, in addi-

tion to the supporting evidence noted above, the jury heard

unrebutted testimony from a defense witness that there was

sufficient probable cause to arrest Alford.4 We conclude that,

weighing all the evidence before them, a reasonable jury

could have followed the probable cause instruction given

them and concluded that, even if Alford did not violate Wash-

ington’s Privacy Act as a matter of law (as their other instruc-

tions made clear), there was, nonetheless, objective probable

cause for Haner to arrest him.

The denial of Alford’s motion for a new trial is

AFFIRMED.

3

See Jury Instruction 12 (“An arrest made without probable cause is

unreasonable. Probable cause to arrest is determined by viewing the total-

ity of the circumstances known to the arresting officer at the time of the

arrest. The standard is met if the facts and circumstances within the arrest-

ing officer’s knowledge are sufficient to warrant a prudent person to con-

clude that the suspect has committed, is committing, or was about to

commit a crime.”).

4

The jury heard testimony from an assistant district attorney with whom

Sergeant Devenpeck spoke by telephone shortly after Alford’s arrest. At

trial he testified that, after Devenpeck had related to him the events sur-

rounding Alford’s stop and arrest, he “advised Sergeant Devenpeck there

was clearly probable cause,” based on the totality of the circumstances and

after discussing possible charges of violating the Privacy Act, impersonat-

ing an officer, and false representation to an officer.

ALFORD v. HANER 4647

B. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent.

Our prior order remanding to the district court because the

issue of probable cause for impersonating an officer was not

before the jury, was correct. Any evidence of other conduct

by Alford was presented only in the context of whether he had

the requisite intent under the Privacy Act. The instructions to

the jury were in the context of violation of the Privacy Act.

The jury was not asked to consider other possible crimes for

which Alford could have been arrested.

The arguments of both counsel focused on the Privacy Act

and witness-credibility. Neither suggested that the jury was to

decide whether there was probable cause to arrest for imper-

sonating a police officer. Granting the government’s Petition

for Rehearing and affirming the acquittal is inconsistent with

the testimony, the jury instructions, and counsels’ arguments

all of which indicate that the jury was not presented with the

theory that the officers may have probable cause to arrest for

an offense other than Privacy Act violations. The remand to

the district court, leaving those proceedings open on the issue

of qualified immunity, is appropriate. We should deny the

government’s Petition for Rehearing.

PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted

© 2006 Thomson/West.