Whitaker v. Garcetti

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK N. WHITAKER; RAMON 

PORTILLO, aka Candido Gutierrez-

Elenes; AVELINO AVALOS; EDUARDO

MARTINEZ; VIRGINIA DELGADO, aka

Edna Cabrera; RICARDO CARRIZOZA,

aka Vicente Lopez-Carrizoza;

LAURO ROCHA GAXIOLA; ANTONIO

ROCHA GASTELUM,

Plaintiffs-Appellees,

v. No. 05-55629

GIL GARCETTI; CURTIS A. HAZELL;  D.C. No.

DAVID DEMERJIAN; JASON LUSTIG; CV-99-08196-WJR

COUNTY OF LOS ANGELES,

Defendants-Appellants,

and

WILLIE WILLIAMS; DAN HARDEN;

HORACIO MARCO; CHUCK

LIVINGSTON; KEITH LEWIS; CITY OF

LOS ANGELES,

Defendants.



5409

5410 WHITAKER v. GARCETTI

JACK N. WHITAKER; RAMON 

PORTILLO, aka Candido Gutierrez-

Elenes; AVELINO AVALOS; EDUARDO

MARTINEZ; VIRGINIA DELGADO, aka

Edna Cabrera; RICARDO CARRIZOZA,

aka Vicente Lopez-Carrizoza;

LAURO ROCHA GAXIOLA; ANTONIO

No. 05-55690

ROCHA GASTELUM,

Plaintiffs-Appellants,

 D.C. No.

CV-99-08196-WJR

v.

OPINION

GIL GARCETTI; CURTIS A. HAZELL;

DAVID DEMERJIAN; JASON LUSTIG;

COUNTY OF LOS ANGELES; WILLIE

WILLIAMS; DAN HARDEN; HORACIO

MARCO; CHUCK LIVINGSTON; KEITH

LEWIS; CITY OF LOS ANGELES,

Defendants-Appellees,



Appeals from the United States District Court

for the Central District of California

William J. Rea, District Judge, Presiding

Argued and Submitted

March 5, 2007—Pasadena, California

Filed May 10, 2007

Before: Thomas G. Nelson, Susan P. Graber, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber

5414 WHITAKER v. GARCETTI

COUNSEL

Alison M. Turner, Greines, Martin, Stein & Richland LLP,

Los Angeles, California, and Lisa S. Berger, Deputy City

Attorney, Los Angeles, California, for the defendants-

appellants-cross-appellees.

Philip A. DeMassa, San Diego, California, for the plaintiffs-

appellees-cross-appellants.

OPINION

GRABER, Circuit Judge:

Eight individual Plaintiffs allege that Defendants, who are

individuals and entities associated with the City and County

of Los Angeles, intercepted Plaintiffs’ telephone calls after

having obtained wiretap authorizations by using falsified war-

rant applications. Plaintiffs also allege that Defendants uncon-

stitutionally concealed the existence of the wiretaps by using

WHITAKER v. GARCETTI 5415

a “handoff” procedure. Plaintiffs sued Defendants under 42

U.S.C. § 1983 for declaratory and monetary relief.1 The dis-

trict court granted summary judgment to Plaintiffs on their

claim for declaratory relief on the handoff procedure, ruling

that the procedure violates the Fourth Amendment. The dis-

trict court granted summary judgment to Defendants on Plain-

tiffs’ claims for monetary relief, ruling that Heck v.

Humphrey, 512 U.S. 477 (1994), barred Plaintiffs’ claim for

damages from the alleged warrant falsification and that

Defendants were entitled to qualified immunity on Plaintiffs’

claim for damages from the handoff procedure. We hold that

Plaintiff Whitaker’s claim alleging that the wiretap that inter-

cepted his telephone call was obtained using a falsified war-

rant application may proceed against Defendants Williams,

Lewis, Garcetti, Demerjian, the City of Los Angeles, and the

County of Los Angeles; none of the other claims can survive.

FACTUAL AND PROCEDURAL HISTORY

A. Overview

This case involves three sets of Plaintiffs and two sets of

Defendants:

— Plaintiff Jack Whitaker, a lawyer;

— Plaintiffs Ramon Portillo, Avelino Avalos,

Eduardo Martinez, Virginia Delgado, and

Ricardo Carrizoza (“Portillo Plaintiffs”), who

possessed 60 kilograms of cocaine;

— Plaintiffs Lauro Gaxiola and Antonio Gastelum,

who possessed 190 kilograms of cocaine;

1

Plaintiffs also sued under California law. Some Plaintiffs procedurally

defaulted the state law claims. A jury found in favor of Defendants on the

remaining state law claims, and no Plaintiff appeals that verdict. Accord-

ingly, only the federal claims are before us.

5416 WHITAKER v. GARCETTI

— Defendants Gil Garcetti, Curtis Hazell, David

Demerjian, and Jason Lustig, who worked in

the Los Angeles District Attorney’s office, and

the County of Los Angeles (“County Defen-

dants”); and

— Defendants Willie Williams, Dan Harden,

Horacio Marco, Chuck Livingston, and Keith

Lewis, who worked in the Los Angeles Police

Department, and the City of Los Angeles (“City

Defendants”).

As summarized by the district court:

The events that gave birth to the instant dispute

were two separate narcotics wiretap investigations

conducted by the Los Angeles Police Department

(“LAPD”). The first investigation revolved around

Downey Communications (“Downey” and “the

Downey wiretaps”), while the second revolved

around the Atel Cellular and Pager Company (“Atel”

and “the Atel wiretaps”). LAPD investigators sup-

posedly suspected these companies of facilitating

drug deals by providing cellular telephone and digi-

tal paging services to narcotics traffickers and

money launderers. The Defendants then submitted to

the Los Angeles Superior Court applications for

wiretap orders, which included sworn affidavits in

order to establish probable cause against Downey

and Atel. In relying on the sworn statements within

the affidavits, the Superior Court issued wiretap

orders for the Downey and Atel wiretaps. Thus, the

wiretaps were supposedly designed to further inves-

tigate the suspected criminal activity of Downey

Communications and Atel Cellular and Pager Com-

pany, and their respective principals and employees.

. . . The Los Angeles Superior Court granted the

application to intercept nine telephone lines [of

WHITAKER v. GARCETTI 5417

Downey] on November 8, 1994. Due to the numer-

ous extensions of the wiretap order and expansions

in the number of telephone lines tapped, Defendants

intercepted over 30,000 conversations that took

place across thirty Downey telephone lines for a

duration of 11 months.

. . . The Los Angeles Superior Court granted the

application to intercept twenty-two telephone lines

[of Atel] on May 21, 1996. Due to the myriad of

extensions sought and obtained, Defendants were

able to intercept dozens of thousands of conversa-

tions over the course of twenty-two months.

. . . [T]he Downey and Atel wiretaps uncovered

substantial criminal activity, although none on the

part of any of the putatively targeted parties. While

intercepting calls pursuant to these broad and endur-

ing wiretaps, Defendants became aware of suspi-

cious conduct on the part of Plaintiffs, although none

of the Plaintiffs were so much as named in the wire-

tap orders or under investigation by the LAPD at the

time of the orders. In other words, Plaintiffs were

mere clients of Downey or Atel, or merely involved

in conversations with clients of Downey or Atel, but

as a result of the two wiretaps, were indirectly sub-

jected to electronic surveillance. These electronic

surveillances served as the soil out of which the

investigations against Plaintiffs originally grew.

Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1136-37 (C.D.

Cal. 2003) (footnotes omitted).

Plaintiffs allege that Defendants intentionally concealed the

existence of the wiretaps from them through the use of a

“handoff” procedure. By Defendants’ own admission,

[t]he logistics of the procedure are rather simple. An

investigative unit applies for and obtains a wiretap

5418 WHITAKER v. GARCETTI

order from a judge. Pursuant to the wiretap order, the

investigative unit conducts electronic surveillance

and gathers specific evidence of imminent criminal

conduct. Rather than arriving at the scene and mak-

ing arrests after observing the criminal conduct, the

investigating unit transmits the information to

another unit without expressly stating that the deliv-

ering unit obtained the information via a wiretap.

The receiving unit is given both the specific informa-

tion gathered through the wiretap and the critical

instruction to “investigate” the conduct, which, in

law enforcement code, . . . signifies that the receiv-

ing unit should arrive at the crime scene and, rather

than execute an arrest, observe the illicit conduct in

order to obtain what law enforcement refers to as

“independent” probable cause.

Upon acquiring this so-called “independent” prob-

able cause, the receiving unit either makes an imme-

diate arrest or obtains a search warrant on the sole

basis of the so-called “independent” probable cause.

The criminally accused is then prosecuted without

ever knowing that he was subjected to the wiretap

surveillance, as no mention of the wiretap is made in

any police reports, through any discovery disclo-

sures, or by any testifying detectives at hearings or

at trial (the testifying detectives, non-coincidentally,

belong to the receiving unit). The conviction fol-

lows, yet the very existence of the wiretap is con-

cealed from the criminally accused, in order to

permit the survival of any pending investigations

revolving around the wiretap.

Id. at 1138 (footnotes omitted).

B. The Three Sets of Plaintiffs

Each set of Plaintiffs raises claims about the wiretaps and

the handoff procedure from a different perspective.

WHITAKER v. GARCETTI 5419

1. Whitaker

On May 22, 1995, Whitaker, a lawyer, received a telephone

call from a client. An LAPD detective intercepted the call.

During the conversation, Whitaker and his client discussed

plea bargaining and witness interviews. Police never arrested

Whitaker or charged him with a crime.

2. Portillo Plaintiffs

On June 18, 1997, LAPD detectives were told to surveil a

location, allegedly based on interceptions of the Portillo

Plaintiffs’ telephone calls. From the surveilled location, detec-

tives followed a vehicle to a residence. After this surveillance,

police obtained a search warrant and seized 60 kilograms of

cocaine and $124,000 in cash. Police arrested Portillo,

Avalos, Martinez, Delgado, and Carrizoza.

On October 17, 1997, the Portillo Plaintiffs pleaded guilty.

Portillo was sentenced to 10 years’ imprisonment, Avalos was

sentenced to 15 years’ imprisonment, Martinez was sentenced

to 10 years’ imprisonment, Delgado was sentenced to 182

days’ imprisonment plus 3 years of probation, and Carrizoza

was sentenced to 17 years’ imprisonment. On May 29, 1998,

the Portillo Plaintiffs’ counsel of record received notice about

the existence of the wiretaps, but the notice did not state

whether the Portillo Plaintiffs’ calls had been intercepted.

3. Gaxiola and Gastelum

On May 23, 1996, an LAPD detective was told to surveil

a location, allegedly based on interceptions of Gaxiola’s and

Gastelum’s telephone calls. From that location, the detective

followed Gastelum. After this surveillance, police obtained a

search warrant for two residences and seized 190 kilograms

of cocaine, $400,000 in cash, an assault rifle, and drug led-

gers. Police arrested Gaxiola and Gastelum.

5420 WHITAKER v. GARCETTI

In June 1997, Gaxiola and Gastelum received notice about

the wiretaps and the interception of telephone numbers that

they identified as their own. On December 16, 1998, each

pleaded guilty and was sentenced to 8 years’ imprisonment.2

C. Procedural Background

On August 12, 1999, Plaintiffs filed suit against Defendants.3

Plaintiffs sued the individual Defendants under 42 U.S.C.

§ 1983 for unlawfully intercepting their telephone calls and

for intentionally concealing the interception. Plaintiffs sued

the City and County under § 1983 for maintaining an unlaw-

ful policy, custom, practice, and usage, and for failing to

instruct, supervise, control, or discipline their employees.

Plaintiffs also brought claims against all Defendants under

California law for unlawfully intercepting their telephone

calls.

In addition to asking for damages and declaratory relief,

Plaintiffs sought a preliminary injunction against Defendants’

use of the handoff procedure. The district court denied Plain-

tiffs’ request for a preliminary injunction. In addition, the

court “dismisse[d] the § 1983 claims based on failure to pro-

vide notice of the wiretap surveillance asserted by Plaintiffs

who were unnamed [in the wiretap order application] and

overheard but not charged with the commission of a crime as

a result of the surveillance.” The district court did not identify

Whitaker by name, but this ruling applied solely to his hand-

off claim. The district court never entered judgment on its

order. Nevertheless, Plaintiffs appealed the district court’s

denial of a preliminary injunction. We affirmed the denial.

Whitaker v. Garcetti, 11 F. App’x 921, 922 (9th Cir. 2001)

(unpublished decision).

2

In its order on November 17, 2003, the district court incorrectly stated

that Gaxiola and Gastelum were convicted following a trial.

3

Gaxiola and Gastelum joined as Plaintiffs on January 11, 2000, in the

First Amended Complaint.

WHITAKER v. GARCETTI 5421

Plaintiffs filed a Second Amended Complaint, renewing

their claims, and all parties moved for summary judgment. On

November 17, 2003, the district court issued an opinion grant-

ing in part and denying in part Plaintiffs’ and Defendants’

motions for summary judgment. Whitaker, 291 F. Supp. 2d

1132. The court analyzed Plaintiffs’ complaint as alleging two

cognizable constitutional violations: (1) violation of the

Fourth Amendment for obtaining the wiretap warrant through

judicial deception (“judicial deception claim”), and (2) viola-

tion of the Fourth Amendment for maintaining the handoff

procedure (“handoff claim”). Id. at 1142.

The district court granted summary judgment to Defendants

on Plaintiffs’ judicial deception claim. The court reasoned

that “a jury after proper witness testimony and cross-

examination could reasonably find for Plaintiffs.” Id. at 1143.

However, “a jury finding on the judicial deception issue in

favor of Plaintiffs would necessarily imply the reversal of

Plaintiffs’ earlier convictions.” Id. at 1144. Thus, the claim

was barred by Heck, 512 U.S. 477. Whitaker, 291 F. Supp. 2d

at 1145. In so ruling, the district court referred only to “Plain-

tiffs” generally, rather than examining the individual claims

of each set of Plaintiffs.

The district court granted summary judgment to Plaintiffs

on their claim for declaratory relief on the per se unconstitu-

tionality of the handoff procedure. “For purposes of isolating

the constitutional permissibility of the wiretap ‘hand off’ pro-

cedure, the [c]ourt assume[d] arguendo the legality of the ini-

tial wiretap.” Id. at 1151 n.39. The court then ruled that

“preserving the substance of the Fourth Amendment, respect-

ing the constitutional principles built into the Federal

Wiretapping Statute, and applying a proper understanding of

the notion of ‘independence’ all demand[ed] holding the

wiretapping ‘hand off’ procedure per se unconstitutional.” Id.

at 1152. Heck did not apply because Heck “repeated, time and

time again, that the § 1983 claims to be barred . . . were spe-

5422 WHITAKER v. GARCETTI

cifically restricted to claims for money damages.” Id. at 1152

n.44.

The district court granted summary judgment to Defendants

on Plaintiffs’ claim for damages from the handoff procedure.

The court ruled that “Defendants are undoubtedly entitled to

qualified immunity on this claim, since [the district court’s]

constitutional holding obviously was not ‘clearly established’

at the time of the activity.” Id. at 1153. The district court did

not discuss the applicability of Heck to the handoff claim for

damages.

Finally, the district court denied Defendants’ motion for

summary judgment on Plaintiffs’ state law claims. The district

court never entered judgment on the November 17, 2003,

order.

After the district court issued its order, the state law claims

of some Plaintiffs went to a jury.4 On May 7, 2004, the jury

found that no Plaintiff had proved by a preponderance of the

evidence that any Defendant had intercepted his or her tele-

phone call. The district court entered judgment in favor of

Defendants on Plaintiffs’ state law claims. No party appeals

a state law claim.

On December 10, 2004, the County Defendants filed a

motion to alter or amend the judgment or order regarding

Plaintiffs’ § 1983 claims. On March 30, 2005, the district

court denied the motion. The district court never entered judg-

ment on the order.

On April 4, 2005, Plaintiffs filed a request for a unified

judgment because the district court had not entered judgment

on its November 17, 2003, order. On April 26, 2005, the

County Defendants filed a notice of appeal from the district

court’s grant of declaratory relief on Plaintiffs’ handoff claim.

4

The remaining Plaintiffs procedurally defaulted their state law claims.

WHITAKER v. GARCETTI 5423

The next day, Plaintiffs filed a motion for attorney fees as pre-

vailing plaintiffs in reliance on the district court’s grant of

declaratory relief. The following day, Plaintiffs filed a notice

of appeal from the district court’s grant of declaratory relief

and partial grant of summary judgment in favor of Defen-

dants. On May 16, 2005, Plaintiffs filed a motion to enter a

unified judgment.5 The City Defendants did not file a notice

of appeal.

On June 16, 2005, the district court denied Plaintiffs’

request for attorney fees. The district court never ruled on

Plaintiffs’ motion for a unified judgment, nor did it enter

judgment on its attorney fees order. Plaintiffs did not file a

notice of appeal on their claim for attorney fees.

STANDARDS OF REVIEW

We review de novo a district court’s grant of summary

judgment, Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004); a district court’s dismissal under Heck, Osborne v.

Dist. Attorney’s Office, 423 F.3d 1050, 1053 (9th Cir. 2005);

a district court’s grant of declaratory relief, DP Aviation v.

Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 829, 840

(9th Cir. 2001); and a district court’s decision on qualified

immunity, Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th

Cir. 2004). We review for abuse of discretion a district court’s

award of attorney fees pursuant to 42 U.S.C. § 1988. Karam

v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). In

general, we may affirm the district court on any ground sup-

ported by the record. Lambert v. Blodgett, 393 F.3d 943, 965

(9th Cir. 2004).

5

The City Defendants had opposed Plaintiffs’ request for attorney fees

by arguing, in part, that the district court never had entered judgment on

its grant of declaratory relief.

5424 WHITAKER v. GARCETTI

DISCUSSION

A. Although the district court violated Federal Rule of Civil

Procedure 58, Plaintiffs waived any objection by timely

appealing.

As a preliminary matter, Plaintiffs argue that the district

court erred by failing to enter a single judgment because the

judgments entered in this case do not comport with Federal

Rule of Civil Procedure 58. Plaintiffs contend that the case

should be sent back to the district court for a proper entry of

judgment.

[1] Under Rule 58, with a few exceptions not applicable

here, “[e]very judgment and amended judgment must be set

forth on a separate document.” Fed. R. Civ. P. 58(a)(1). The

district court violated Rule 58 when it failed to enter a sepa-

rate judgment on its order denying Plaintiffs’ motion for a

preliminary injunction on May 24, 2000; its order granting

and denying in part Plaintiffs’ and Defendants’ motions for

summary judgment on November 17, 2003; its order denying

the County Defendants’ motion to alter or amend judgment on

March 30, 2005; and its order denying Plaintiffs’ request for

attorney fees on June 16, 2005. Plaintiffs repeatedly brought

the lack of separate judgments to the district court’s attention,

and the court never addressed Plaintiffs’ concerns.

[2] But “[t]he sole purpose of the separate-document

requirement, which was added to Rule 58 in 1963, was to

clarify when the time for appeal . . . begins to run.” Bankers

Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (per curiam).

“A failure to set forth a judgment or order on a separate docu-

ment when required by Federal Rule of Civil Procedure

58(a)(1) does not affect the validity of an appeal from that

judgment or order.” Fed. R. App. P. 4(a)(7)(B). “[N]either the

Supreme Court nor this court views satisfaction of Rule 58 as

a prerequisite to appeal. A ruling is final . . . if it (1) is a full

adjudication of the issues, and (2) clearly evidences the

WHITAKER v. GARCETTI 5425

judge’s intention that it be the court’s final act in the matter.”

Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir.

2004) (citations and internal quotation marks omitted). Thus,

“when the parties treat a fully dispositive summary judgment

order as if it were a final judgment, the requirement in Federal

Rule of Civil Procedure 58 that the judgment ‘be set forth on

a separate document’ can be waived.” Id. at 1256 (citing

Bankers Trust, 435 U.S. at 382).

[3] In this case, with the exception of Plaintiffs’ later claim

for attorney fees, see infra Part C, and their state law claims,

which proceeded to trial and are not before us on appeal, the

district court’s order on November 17, 2003, disposed of all

remaining claims as to all parties. And as they did with the

district court’s order on May 24, 2000, the parties treated it

as a final judgment. Plaintiffs and the City Defendants did

dispute the final nature of the order before the district court.

Nevertheless, Plaintiffs and the County Defendants appealed

to us as if the order were a final judgment, the City Defen-

dants defend against Plaintiffs’ cross-appeal as if the order

were a final judgment, and no party argues (nor do we find)

that any appeal of the order was untimely. In these circum-

stances, we hold that Plaintiffs waived the Rule 58 require-

ment for separate judgments.

B. Heck bars all Plaintiffs except Whitaker from bringing

suit.

Throughout its order of November 17, 2003, the district

court referred generally to “Plaintiffs,” without differentiating

their claims and circumstances. But the district court previ-

ously had denied Plaintiffs’ motion to proceed as a class, a

ruling that Plaintiffs did not appeal. Thus, we must determine

the viability of each claim as to each Plaintiff. See Sacks v.

Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir.

2006) (“Article III standing requires the plaintiff to establish

standing for each challenge he wishes to bring and each form

of relief he seeks.”), cert. denied, 2007 WL 121145 (U.S.

5426 WHITAKER v. GARCETTI

Apr. 16, 2007) (No. 06-948); Ellis v. City of La Mesa, 990

F.2d 1518, 1523 (9th Cir. 1993) (“[E]ach plaintiff must ‘show

that he personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the defen-

dant.’ ” (quoting Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc., 454 U.S. 464, 472

(1982))).

Plaintiffs cite Watt v. Energy Action Educational Founda-

tion, 454 U.S. 151, 160 (1981), and Laub v. United States

Department of Interior, 342 F.3d 1080, 1086 (9th Cir. 2003),

for the proposition that one plaintiff can create standing for all

plaintiffs. However, Watt and Laub are inapposite. Each con-

cerned judicial review of an administrative action where all

plaintiffs raised the same questions of fact and law. By con-

trast, this case does not concern a single administrative action,

and the factual circumstances of Plaintiffs are not identical.

We turn then, to a consideration of each set of Plaintiffs.

1. Whitaker has standing, but only on the judicial

deception claim.

Whitaker alleges that Defendants falsified the warrant

application for the wiretap that intercepted his telephone call,

and he challenges the constitutionality of the handoff proce-

dure. He seeks damages under the judicial deception claim

and both declaratory relief and damages under the handoff

claim. Defendants do not dispute the fact that Whitaker’s call

was intercepted.

a. Whitaker’s judicial deception claim

[4] A seizure conducted pursuant to a warrant obtained by

judicial deception violates the Fourth Amendment. Butler v.

Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (per curiam).

Defendants raise three defenses to Whitaker’s claim of judi-

cial deception, none of which we find persuasive.

WHITAKER v. GARCETTI 5427

First, the County Defendants argue that Whitaker waived

this claim by failing to raise it in Plaintiffs’ opening brief.

Although the organization of the brief could have been more

clear, Plaintiffs’ opening brief explicitly argued:

Whitaker still has standing to assert the loss of pri-

vacy and seek money damages based on the illegal

interception themselves. The district court found

Whitaker was not entitled to notice of the intercep-

tion since he was neither named [n]or criminally

charged. This ground, however, does not mean

Whitaker does not have standing to pursue his other

claims.

Whitaker’s judicial deception claim therefore was raised suf-

ficiently in the opening brief.

[5] Second, both sets of Defendants argue, and the district

court held, that Heck, 512 U.S. 477, bars all Plaintiffs’ claims

of judicial deception. As discussed in depth in Part B.2, Heck

bars a plaintiff from bringing suit under § 1983 if “a judgment

in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence.” Id. at 487. But Whitaker never

was arrested or charged with a crime, much less convicted of

one. That being so, Heck is inapplicable to his claims.6

[6] Third, both sets of Defendants argue that they are enti-

tled to qualified immunity. “Qualified immunity is ‘an entitle-

ment not to stand trial or face the other burdens of litigation.’

The privilege is ‘an immunity from suit rather than a mere

defense to liability.’ ” Saucier v. Katz, 533 U.S. 194, 200

(2001) (emphasis omitted) (quoting Mitchell v. Forsyth, 472

U.S. 511, 526 (1985)).

6

In relying on Heck to grant summary judgment to Defendants on all

Plaintiffs’ claims of judicial deception, the district court appears simply to

have overlooked Whitaker.

5428 WHITAKER v. GARCETTI

When an individual sues a government official for violation

of a constitutional right, the official is entitled to qualified

immunity unless (1) the facts alleged, viewed in the light most

favorable to the individual asserting the injury, show that the

official violated a constitutional right, and (2) the contours of

the right were sufficiently clear so that a reasonable official

would understand that his conduct violated that right. Id. at

201-02. When an individual sues a local government for vio-

lation of a constitutional right, the municipality is liable if the

individual can establish that the local government “had a

deliberate policy, custom, or practice that was the ‘moving

force’ behind the constitutional violation he suffered.” Galen

v. County of L.A., 477 F.3d 652, 667 (9th Cir. 2007) (quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978)).

“[A] municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell, 436 U.S. at 691. “In this

circuit, a claim of municipal liability under [§] 1983 is suffi-

cient to withstand a motion to dismiss even if the claim is

based on nothing more than a bare allegation that the individ-

ual officers’ conduct conformed to official policy, custom, or

practice.” Galbraith v. County of Santa Clara, 307 F.3d 1119,

1127 (9th Cir. 2002) (internal quotation marks omitted).

[7] Here, Plaintiffs’ Second Amended Complaint speaks in

generalities regarding actions of “Defendants.” But an indi-

vidual defendant is stripped of qualified immunity only if he

personally violated a plaintiff’s constitutional rights. Baker v.

McCollan, 443 U.S. 137, 142 (1979) (“[A] public official is

liable under § 1983 only if he causes the plaintiff to be sub-

jected to deprivation of his constitutional rights.” (emphasis

and internal quotation marks omitted)). Thus, we must exam-

ine the allegations against each Defendant as they pertain to

Whitaker.

[8] Whitaker’s call was intercepted as part of the Downey

wiretap. The allegations in the complaint concerning the

Downey wiretap are: Defendant Lewis falsified an affidavit

for the warrant application; Defendants Williams and Garcetti

WHITAKER v. GARCETTI 5429

authorized and approved the falsified application; Defendant

Demerjian was aware of, monitored, and approved the appli-

cation; the falsification of the application conformed to the

official policy, custom, or practice of the City and County;

and the City and County failed to train these officials ade-

quately. Viewing the allegations of judicial deception as true,

Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.

2004), Whitaker alleges facts that show that Defendants Wil-

liams, Lewis, Garcetti, and Demerjian violated his Fourth

Amendment rights, and he alleges that those officials operated

pursuant to an official policy, custom, or practice of the City

and County of Los Angeles.

[9] Whitaker thus has alleged facts sufficient to make out

a claim of judicial deception against Defendants Williams,

Lewis, Garcetti, Demerjian, the City of Los Angeles, and the

County of Los Angeles. In addition, the contours of the

Fourth Amendment right against judicial deception were

clearly established at the time of the events at issue. See But-

ler, 281 F.3d at 1024 (quoting Hervey v. Estes, 65 F.3d 784,

788-89 (9th Cir. 1995), for the elements of a judicial decep-

tion claim). Therefore, we hold that Defendants Williams,

Lewis, Garcetti, Demerjian, the City of Los Angeles, and the

County of Los Angeles are not entitled to qualified immunity

on Whitaker’s claim of judicial deception. By contrast, the

complaint does not implicate the remaining Defendants in any

way in the judicial deception of the Downey wiretap and, con-

sequently, the interception of Whitaker’s telephone call. Thus,

the district court properly granted summary judgment on

Whitaker’s judicial deception claim to Defendants Harden,

Marco, Livingston, Hazell, and Lustig.

b. Whitaker’s handoff claim

[10] Whitaker challenges the constitutionality of the hand-

off procedure, but the district court dismissed Whitaker’s

handoff claim in its order of May 24, 2000. Although the

court never entered judgment on the dismissal, Whitaker pro-

5430 WHITAKER v. GARCETTI

ceeded as if he had been dismissed. He acknowledged the dis-

missal in Plaintiffs’ opening brief, and he failed to dispute or

challenge it. Instead, he merely stated:

The district court found Whitaker was not entitled to

notice of the interceptions since he was neither

named [n]or nominally charged. This ground, how-

ever, does not mean Whitaker does not have stand-

ing to pursue his other claims.

(Emphasis added.) Accordingly, Whitaker waived any objec-

tion to the lack of a separate judgment on the district court’s

dismissal order, see Casey, 362 F.3d at 1256 (“[W]hen the

parties treat a fully dispositive summary judgment order as if

it were a final judgment, the requirement in Federal Rule of

Civil Procedure 58 that the judgment ‘be set forth on a sepa-

rate document’ can be waived.”), and waived any challenge

to the district court’s dismissal of the handoff claim, see Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,

arguments not raised by a party in its opening brief are

deemed waived.”). We must dismiss Whitaker’s challenge to

the handoff procedure.

2. Heck bars the Portillo Plaintiffs and Gaxiola and

Gastelum from bringing suit.

The Portillo Plaintiffs—Portillo, Avalos, Martinez, Del-

gado, and Carrizoza—and Gaxiola and Gastelum allege that

Defendants falsified the warrant application for the wiretap

that intercepted their telephone calls, and they challenge the

constitutionality of the handoff procedure. They seek damages

under their judicial deception claim and both declaratory

relief and damages under their handoff claim.

[11] The district court ruled that Heck, 512 U.S. 477, barred

Plaintiffs’ judicial deception claims but did not bar their hand-

off claims. In Heck, the Supreme Court held that,

WHITAKER v. GARCETTI 5431

in order to recover damages for allegedly unconstitu-

tional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render

a conviction or sentence invalid, a § 1983 plaintiff

must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized

to make such determination, or called into question

by a federal court’s issuance of a writ of habeas cor-

pus, 28 U.S.C. § 2254. A claim for damages bearing

that relationship to a conviction or sentence that has

not been so invalidated is not cognizable under

§ 1983.

512 U.S. at 486-87 (emphasis added) (footnote omitted). If “a

judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence,” then “the complaint

must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Id.

at 487. In addition, “the principle barring collateral attacks—

a longstanding and deeply rooted feature of both the common

law and [the Supreme Court’s] own jurisprudence—is not

rendered inapplicable by the fortuity that a convicted criminal

is no longer incarcerated.” Id. at 490 n.10. The Supreme Court

later clarified that Heck’s principle applies regardless of the

form of remedy sought. “[A] claim for declaratory relief and

money damages . . . that necessarily impl[ies] the invalidity

of the punishment imposed[ ] is not cognizable under

§ 1983.” Edwards v. Balisok, 520 U.S. 641, 648 (1997).

[12] The Supreme Court left open the question whether

Heck’s bar applies to Fourth Amendment violations. See

Heck, 512 U.S. at 487 n.7 (“[A] suit for damages attributable

to an allegedly unreasonable search may lie even if the chal-

lenged search produced evidence that was introduced in a

state criminal trial resulting in the § 1983 plaintiff’s still-

outstanding conviction.” (emphasis added)). However, this

court since has answered that question in the affirmative:

5432 WHITAKER v. GARCETTI

We believe that the Second and Sixth Circuits

have taken the better approach and therefore hold

that a § 1983 action alleging illegal search and sei-

zure of evidence upon which criminal charges are

based does not accrue until the criminal charges have

been dismissed or the conviction has been over-

turned. Such a holding will avoid the potential for

inconsistent determinations on the legality of a

search and seizure in the civil and criminal cases and

will therefore fulfill the Heck Court’s objectives of

preserving consistency and finality, and preventing

“a collateral attack on [a] conviction through the

vehicle of a civil suit.”

Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000)

(alteration in original) (quoting Heck, 512 U.S. at 484).

[13] Here, the Portillo Plaintiffs and Gaxiola and Gastelum

claim that Defendants committed judicial deception to obtain

the wiretap warrants and then impermissibly hid the existence

of, and evidence produced by, those wiretaps—evidence that

triggered the police investigations and state prosecutions

against them. In other words, they challenge the search and

seizure of the evidence upon which their criminal charges and

convictions were based. Heck and Harvey bar such a collat-

eral attack through the vehicle of a civil suit.

[14] The district court ruled that Heck did not bar Plaintiffs’

request for declaratory relief on the handoff procedure

because Heck involved only a suit for monetary damages.7

Whitaker, 291 F. Supp. 2d at 1152 n.44. The court distin-

7

Curiously, the district court did not discuss the applicability of Heck to

Plaintiffs’ request for damages on their handoff claims. Instead, the district

court granted summary judgment to Defendants on the basis of qualified

immunity. Whitaker, 291 F. Supp. 2d at 1153. We see no reason why Heck

does not apply equally to both of Plaintiffs’ claims for damages, and

Plaintiffs do not proffer one.

WHITAKER v. GARCETTI 5433

guished Edwards, 520 U.S. 641, in which a plaintiff sued for

both declaratory relief and damages, on the basis that

Edwards involved good time credits in prison and declaratory

relief would have been “a toothless bite,” whereas, in this

case, having the handoff procedure declared unconstitutional

would “have severely sharp teeth.” Whitaker, 291 F. Supp. 2d

at 1152 n.44. But nowhere in Heck or Edwards does the

Supreme Court say that application of the doctrine depends on

the sharpness of the proposed relief’s bite. Instead, the sole

dispositive question is whether a plaintiff’s claim, if success-

ful, would imply the invalidity of his conviction. Harvey and

Plaintiffs’ theory of the case answer that question in the affir-

mative.

Plaintiffs also argue for a “belated discovery” exception to

Heck for individuals who, because of a defendant’s actions,

do not discover a constitutional violation until after their con-

finement ends. They argue that Plaintiffs were “kept in the

dark by the Defendants and the only way they have been kept

from seeking relief during their confinement was due to

Defendants’ successful concealment.” We need not reach this

question. Assuming without deciding that such an exception

should exist, no Plaintiff would qualify for it. Contrary to

Plaintiffs’ flat assertion, the Portillo Plaintiffs knew about the

handoff procedure less than eight months after they pleaded

guilty, while each either was in jail or on parole, and Gaxiola

and Gastelum knew about the handoff before they pleaded

guilty. Indeed, when Plaintiffs filed their first complaint in

1999, all Plaintiffs (with the exception of Whitaker, who was

not convicted of any crime) remained in prison or on parole.

At oral argument, Plaintiffs asserted for the first time that

the judicial deception claim is sufficiently attenuated from the

evidence to avoid the bar of Heck. This new argument runs

counter to Plaintiffs’ theory throughout this case—that an

unbroken chain linked the improper, undisclosed wiretaps to

the surveillance and the evidence used against Plaintiffs at

trial. It is too late for Plaintiffs to change theories now. See

5434 WHITAKER v. GARCETTI

Smith, 194 F.3d at 1052 (“[O]n appeal, arguments not raised

by a party in its opening brief are deemed waived.”); Mone-

tary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir.

1995) (“As a general rule, an appellate court will not consider

arguments which were not first raised before the district court,

absent a showing of exceptional circumstances.” (internal

quotation marks omitted)).

[15] In short, we hold that Heck bars Portillo, Avalos, Mar-

tinez, Delgado, Carrizoza, Gaxiola, and Gastelum from bring-

ing suit for declaratory relief or damages on their judicial

deception and handoff claims.

C. We lack jurisdiction over Plaintiffs’ request for attorney

fees.

Plaintiffs asked the district court for attorney fees as pre-

vailing plaintiffs under 42 U.S.C. § 1988. The court denied

their request, and Plaintiffs raised the issue in their opening

brief. However, Plaintiffs never filed a notice of appeal on

this claim as required by Federal Rule of Appellate Procedure

3(a)(1).

On April 28, 2005, Plaintiffs filed a notice of appeal from

the district court’s partial grant of summary judgment to

Defendants. On June 16, 2005, the district court denied Plain-

tiffs’ request for attorney fees. Plaintiffs neither amended

their prior notice of appeal nor filed a new notice.

It is the filing of a notice of appeal that invokes our

jurisdiction and establishes the issues to be

addressed. A timely notice of appeal from the judg-

ment or order complained of is mandatory and juris-

dictional. Where no notice of appeal from a post-

judgment order [regarding] attorneys’ fees is filed,

the court of appeals lacks jurisdiction to review the

order.

WHITAKER v. GARCETTI 5435

Culinary & Serv. Employees Union v. Haw. Employee Benefit

Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982) (emphasis

added) (citations omitted).

[16] Plaintiffs argue that, under Federal Rule of Appellate

Procedure 4, their notice of appeal from the district court’s

partial grant of summary judgment automatically pended until

the district court decided their request for attorney fees and,

therefore, that the notice of appeal encompasses the attorney

fees claim. In certain circumstances, a motion for attorney

fees can toll the deadline for filing a notice of appeal. Fed. R.

App. P. 4(a)(4)(A)(iii). In addition, if a party files a notice of

appeal before the district court has decided a motion for attor-

ney fees, the notice does not become effective until the court

decides the motion. Fed. R. App. P. 4(a)(4)(B)(i). But, even

so, a party wishing to challenge the attorney fees decision

“must file a notice of appeal, or an amended notice of appeal”

specifying its appeal of that decision. Fed. R. App. P.

4(a)(4)(B)(ii); Fed. R. App. P. 3(c)(1)(B). Plaintiffs failed to

do either. For that reason, we must dismiss Plaintiffs’ request

for attorney fees.

CONCLUSION

Plaintiffs waived the requirement for separate judgments

found in Federal Rule of Civil Procedure 58. Their request to

remand the case to the district court for an entry of judgment

is DENIED.

Whitaker has standing to raise the judicial deception claim,

but he failed to allege any involvement by Defendants Har-

den, Marco, Livingston, Hazell, and Lustig. Therefore, the

district court’s grant of summary judgment on Whitaker’s

judicial deception claim to Defendants Williams, Lewis, Gar-

cetti, Demerjian, the City of Los Angeles, and the County of

Los Angeles is REVERSED and Whitaker’s judicial decep-

tion claim against those Defendants is REMANDED. The dis-

trict court’s grant of summary judgment on Whitaker’s

5436 WHITAKER v. GARCETTI

judicial deception claim to Defendants Harden, Marco, Liv-

ingston, Hazell, and Lustig is AFFIRMED.

Heck bars the judicial deception claims of the Portillo

Plaintiffs and Gaxiola and Gastelum. The district court’s grant

of summary judgment to all Defendants on the judicial decep-

tion claims of Portillo, Avalos, Martinez, Delgado, Carrizoza,

Gaxiola and Gastelum is AFFIRMED.

Whitaker did not appeal the dismissal of his handoff claim,

and Heck bars the handoff claims of the Portillo Plaintiffs and

Gaxiola and Gastelum. Therefore, the district court’s grant of

declaratory relief is VACATED. We express no view on the

constitutionality of the handoff procedure, because the claim

was not properly before the district court. Whitaker’s handoff

claim is DISMISSED. The district court’s grant of summary

judgment to all Defendants on the handoff damages claims of

Portillo, Avalos, Martinez, Delgado, Carrizoza, Gaxiola and

Gastelum is AFFIRMED.

Plaintiffs failed to file a notice of appeal or an amended

notice of appeal on their request for attorney fees as prevail-

ing plaintiffs. Their request for attorney fees is DISMISSED.

Costs awarded to Defendants except for Defendants Wil-

liams, Lewis, Garcetti, Demerjian, the City of Los Angeles,

and the County of Los Angeles as to Plaintiff Whitaker,

where the parties shall bear their own costs.

AFFIRMED in part, DISMISSED in part, VACATED in

part, and REVERSED and REMANDED in part.