Beck v. City of Upland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH BECK, 

Plaintiff-Appellant,

v.

CITY OF UPLAND; CITY OF UPLAND

POLICE DEPARTMENT; MARTIN

THOUVENELL, City of Upland No. 05-56901

Police Chief; JEFF MENDENHALL,

Upland Police Officer; MICHAEL  D.C. No.

CV-05-00184-ABC

OLLIS,

Defendants-Appellees, OPINION

and

INTRAVAIA ROCK AND SAND

CORPORATION; RON WILLEMSEN; LEE

JACKSON,

Defendants.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

August 10, 2007—Pasadena, California

Filed May 28, 2008

Before: Marsha S. Berzon and Sandra S. Ikuta,

Circuit Judges, and James K. Singleton,* District Judge.

*The Honorable James K. Singleton, Senior United States District

Judge for the District of Alaska, sitting by designation.

6035

6036 BECK v. CITY OF UPLAND

Opinion by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Ikuta

6040 BECK v. CITY OF UPLAND

COUNSEL

Thomas R. Freeman (argued), Bird, Marella, Boxer, Wolpert,

Nessim, Drooks, & Lincenberg, P.C., Los Angeles, Califor-

nia, and Stephan J. Johnson, Reiss & Johnson, Rancho Cuca-

monga, California, for the plaintiff-appellant.

Samuel J. Wells (argued), Samuel J. Wells, APC, Los Ange-

les, California, and William K. Hanagami, King & Hanagami,

ALC, Los Angeles, California, for the defendants-appellees.

OPINION

BERZON, Circuit Judge:

Kenneth Beck and the City of Upland, California, engaged

for months in an escalating series of disputes arising from

Beck’s protests against a city contract granted to one of his

competitors. In the incident that gave rise to this case, Beck

was arrested six days after he confronted two city police offi-

cers over what he felt to be unfair treatment by the city.

Beck’s arrest was pursuant to a warrant for two felony viola-

tions of a California statute prohibiting threats of violence

made to deter police officers from performing their duties.

The warrant, we conclude — as did the state courts consider-

ing the criminal charges — was entirely without probable

cause. All charges against Beck were dismissed.

Beck maintains that his “First and Fourth Amendment

rights . . . were violated when he was arrested and imprisoned

[without probable cause] for his protected speech and then

forced to incur the cost of defending himself against the crim-

BECK v. CITY OF UPLAND 6041

inal charges.” The question we consider is whether Beck’s

subsequent suit under 42 U.S.C. § 1983 for these constitu-

tional violations and for various state law causes of action

against the City of Upland, its police department, and the offi-

cers who engineered his arrest, Police Chief Martin Thouve-

nell and Sergeant Jeff Mendenhall, may go forward to trial.

The district court held that it may not, because (1) a San Ber-

nardino County prosecutor authorized the filing of a criminal

complaint before the police officers obtained an arrest war-

rant, thereby acting as an intervening cause of Beck’s injuries

and cutting off post-complaint liability under § 1983; and (2)

California state law immunized the officers. See Smiddy v.

Varney, 665 F.2d 261, 266-68 (“Smiddy I”) (9th Cir. 1981)

(discussing the post-complaint liability of the arresting offi-

cers in such circumstances); CAL. CIV. CODE § 43.55(a) (state

law immunity).

After the district court decision, the United States Supreme

Court decided Hartman v. Moore, 547 U.S. 250 (2006), clari-

fying the elements of a constitutional tort under § 1983 for

retaliatory arrest or prosecution. We hold, relying in part on

Hartman, that causation issues arising from the criminal com-

plaint do not preclude Beck’s case, and that California immu-

nity law does not either. We therefore reverse the district

court’s grant of summary judgment against Beck.

I. Background

A. The Rubble Removal Contract and the Zoning

Investigation

Early in 2003, Beck heard about a business opportunity

from city officials: Upland was planning construction work in

town, and there would be a significant amount of rubble to

remove and recycle.1 Beck thought his business, Dineen

1

Because we are reviewing a grant of summary judgment against Beck,

we relate the facts in the light most favorable to him, the nonmoving party.

Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). The

defendants dispute many of these facts in opposing declarations and depo-

sitions.

6042 BECK v. CITY OF UPLAND

Trucking, was a good fit for the job: It had been operating in

town since 1958 and often did rubble removal and recycling

work. Beck believed the rubble had significant resale value

and would have been willing to remove it for free in exchange

for the right to resell it. So Beck was surprised when, on Sep-

tember 8, 2003, the City Council awarded a $350,000 no-bid

contract, without public notice or comment, to an out-of-town

competitor, Intravaia Rock & Sand. Because the city normally

put all projects over $5,000 out to bid, Beck suspected that

there were irregularities in the contracting process.

Acting on his belief, Beck called the mayor of Upland the

next day and told him that he planned to raise his concerns

about the contract at the next city council meeting, on Sep-

tember 22, 2003. On the 22nd, Ron Willemsen, president of

Intravaia, visited Beck and confronted him about the contract.

Soon after Willemsen’s visit, the mayor called Beck and

asked him not to speak publicly about the contract. That night,

instead of speaking at the city council meeting, Beck met with

Willemsen, Chief Thouvenell, and the city public works

director and was advised to work out a deal with Willemsen

to share the contract. As it turned out, the two were not able

to agree, and no deal was reached.

Instead, Beck took his grievances to the city manager,

Michael Milhiser, this time successfully. In early October, the

city backed out of the Intravaia contract. At about the same

time, Willemsen again came to Beck’s office and promised to

have “every agency down on top of [him]” because of his

efforts to block Willemsen’s contract.

On November 24, 2003, a zoning complaint letter arrived

at Upland city hall, sent by a law firm that represented

Intravaia. The letter suggested that rubble piles on Beck’s

land, which he maintained as part of his business and which

included rubble resulting from an earlier city project, were out

of compliance with zoning changes that had occurred in 2000.

The rubble piles had been there since at least the early 1990s,

BECK v. CITY OF UPLAND 6043

but Beck had not previously been informed of any zoning

problems. Police officer Michael Ollis was assigned to inves-

tigate the complaint.

The decision to investigate was unusual. At the city council

meeting at which the 2000 zoning changes were adopted,

business owners had raised concerns over enforcement

against existing nonconforming businesses in Beck’s part of

the city and were assured that their existing uses of their prop-

erties were not threatened. Upland’s senior planner had indi-

cated that she was “not aware of one single incidence [sic]

where the City ha[d] enforced” against a nonconforming use

existing at the time a new zoning ordinance was passed; such

uses had “all been allowed to continue, as long as they contin-

ue.” Also, the city’s Director of Community Planning con-

firmed at that meeting that the city’s policy was to enforce

zoning ordinances only against new property uses.

Ollis and Sergeant Mendenhall, along with the city engi-

neer, arrived at Dineen Trucking to serve Beck with a notice

of zoning violations signed by Chief Thouvenell on January

27, 2004. Beck had not previously known of the investigation,

and the ensuing discussion was heated. Beck believed the

investigation to be retaliatory, and summarily ended the meet-

ing by ordering the three city officials to leave his property.

B. The Confrontation

The next week, Beck and his wife Brenda Beck went to a

party celebrating the opening of a local bank. As they were

leaving the event, Beck saw Chief Thouvenell and Sergeant

Mendenhall standing by the buffet. Beck “decided it was the

right time to go over there” and talk to Thouvenell about the

way the city was treating him.

After saying hello, Beck bluntly told Thouvenell to get

“Ollis off my ass.” In the course of the brief ensuing discus-

sion, Thouvenell at one point retorted, “Ken, we should have

6044 BECK v. CITY OF UPLAND

taken care of you a long time ago,” to which Beck responded

“You don’t know who you’re dealing with.”2 The conversa-

tion ended there, and both the Becks and the officers left the

function.

Both Chief Thouvenell and Sergeant Mendenhall later

declared that they believed Beck was threatening their “posi-

tion or employment” as police officers. Neither ever indicated

any belief that Beck had threatened them with violence.

The day after the incident at the bank opening, the Upland

Chamber of Commerce held a meeting triggered in part by the

zoning investigation of Beck’s business. Chief Thouvenell,

Sergeant Mendenhall, and the city manager, Milhiser,

attended the meeting. They were quite exercised over Beck’s

statements of the night before. Milhiser, for example, main-

tained that Beck had “been way out of line and very offen-

sive,” and said that Thouvenell had “exercised a lot of

restraint in not . . . hooking up [Beck] that night.” And Thou-

venell told the Chamber to “back off from this whole [Beck]

issue, leave it alone, stay out of their way,” and warned the

Chamber members that he would “make contact with the

attorney general’s office” if they persisted in their “interfer-

ence.”

C. The Police Report and the Complaint

Even before the Chamber meeting, Sergeant Mendenhall

and Chief Thouvenell were preparing to take action against

Beck. Immediately after the confrontation at the bank, Men-

2

The police recalled the comment differently, asserting that Beck used

profanity, saying “You better back the fuck off me because you don’t

know who you’re fucking with.” The police also assert that Beck, after

making the comment to Chief Thouvenell, repeated it to Sergeant Men-

denhall. Beck’s use of obscenity is not material to our legal analysis; even

if it were, we would have to assume on summary judgment that he did not

swear and that he spoke only to Chief Thouvenell. See Blankenhorn, 485

F.3d at 470.

BECK v. CITY OF UPLAND 6045

denhall told Thouvenell that he believed Beck had violated a

criminal law against threatening police officers. Thouvenell

told him to look into the matter.

Mendenhall did so and prepared a police report on the inci-

dent. Thouvenell then indicated that Mendenhall should pre-

sent the report to the District Attorney’s office, which he did

on February 9, 2004. The report describes Mendenhall’s

impressions of the conversation with Beck at the bank open-

ing party and contains statements from other witnesses. The

report does not contain Thouvenell’s statement to Beck.

Sergeant Mendenhall also submitted a form to the District

Attorney providing basic information on Beck and the wit-

nesses. At the top of the form, under “crime/incident,” Men-

denhall wrote “PC 69 Threatening an Officer.” California

Penal Code § 69 criminalizes, in pertinent part, “attempts, by

means of any threat or violence, to deter or prevent an execu-

tive officer from performing any duty imposed upon such

officer by law.” The offense may be charged either as a felony

or as a misdemeanor. Mendenhall circled “Felony” rather than

“Misdemeanor” on the form.

Deputy District Attorney Joseph Gaetano reviewed the

police report. He conducted no additional investigation, fac-

tual or legal, and later stated he “suppose[s]” he generated a

criminal complaint on his computer. The program he uses to

do so allows him simply to click a box to format the com-

plaint and to select the charge; all other case-specific informa-

tion is typed in by a clerk. He had the complaint, charging

Beck with two counts of felony violation of § 69, ready for

Mendenhall to sign that day.

In a deposition concerning his decision, Gaetano testified

that Mendenhall did not tell him to prosecute Beck’s alleged

crime as a felony and did not tell him to prosecute Beck as a

favor to the police department. Gaetano asserted work-

product privilege, however, when asked whether his decision

6046 BECK v. CITY OF UPLAND

to charge Beck with a felony had been “swayed” by the fact

that “felony” was circled on the police report, and again when

asked if he felt “any pressure . . . to file charges against Mr.

Beck.”

A superior court judge issued a warrant for Beck’s arrest

shortly thereafter, after receiving the complaint and a declara-

tion by Sergeant Mendenhall in support of the warrant. The

judge received no document signed by Gaetano before he

issued the warrant.

D. The Arrest and Subsequent Judicial Proceedings

Two days after the warrant issued, three officers, each in

his or her own vehicle, pulled up in front of Dineen Trucking.

Beck was at his desk. Wearing bulletproof vests and with

weapons unharnessed, the officers entered Beck’s office,

arrested him, and handcuffed him. The officers took the hand-

cuffed Beck outside and waited with him at the front of his

business. Sergeant Mendenhall had arrived but remained off

the property, watching the arrest from his car. After half an

hour, another police car arrived to take Beck to the police sta-

tion and then to jail. Beck spent five hours in jail before he

posted bail, which was set at $15,000.

At Beck’s preliminary hearing the judge described himself

as “troubled by this case on many levels, not the least of

which is that it’s been filed as a felony.” Regarding the stan-

dard of proof in a preliminary hearing as minimal, the judge

allowed the case to go forward but urged the defense to “chal-

lenge the Court’s ruling via 995.” California Penal Code

§ 995 allows a court to set aside an indictment or information

for, among other things, lack of probable cause.

Beck’s lawyer did file a § 995 motion, and a second judge

set aside the charges. Citing People v. Superior Court of San

Francisco (Anderson), 151 Cal. App. 3d 893 (Ct. App.1984),

which requires a threat of violence to support a “threat” viola-

BECK v. CITY OF UPLAND 6047

tion of § 69, the judge held that “obviously, [Beck’s] state-

ment does not contain any element of violence that I can

find,” and that there was “no indication of any immediate

threat of physical violence whatsoever.” He dismissed the

criminal case against Beck. A few months later, Upland vol-

untarily dismissed the zoning charges against Beck as well.3

E. The Litigation

Beck then brought this case. In addition to the federal

§ 1983 cause of action, Beck alleged eight causes of action

under state law. The § 1983 allegations here at issue were that

Beck was “falsely arrested, unlawfully detained, and falsely

imprisoned” in violation of his Fourth Amendment rights and

that the “arrest was perpetrated . . . in retaliation for [Beck’s]

exercise of his First Amendment rights against Defendant,

Martin Thouvenell, as well as [for] ‘whistle blowing’ ” on the

Intravaia contract.4 Of Beck’s state law causes of action, the

second (negligence), third (assault and battery), fourth (false

imprisonment), and fifth (intentional infliction of emotional

distress) are the subject of this appeal. Beck sought damages

for the costs he incurred in defending himself, and also sought

punitive and compensatory damages, attorneys’ fees, and

costs.

The officers claimed qualified immunity, arguing that, on

all the federal constitutional causes of action, Smiddy I immu-

nized them from liability for harm suffered after the com-

plaint was filed, and also asserted state law statutory

immunity. On November 14, 2005, the district court granted

summary judgment against Beck on his § 1983 causes of

3

Upland did, however, send Beck another notice of zoning violations in

December, 2004. As of October 27, 2005, no action had been taken on this

new notice.

4

Beck’s complaint alleges violations of other rights, but on appeal he

pursues only the Fourth and First Amendment violations arising from his

arrest, so we consider only those issues.

6048 BECK v. CITY OF UPLAND

action, holding that, under Smiddy I, Gaetano’s decision to

prepare the complaint was an independent and intervening

cause that immunized the Upland defendants “from liability

for any damages suffered by [Beck] as a result of his subse-

quent arrest and detention.” The court further held that, even

if Beck could overcome Smiddy I, his statements at the party

provided probable cause to support the warrant. Finally, the

court held Beck’s state law causes of action precluded by Cal-

ifornia statutory immunity.5

This timely appeal followed.

II. Analysis

A. Standard of Review and Analytic Framework

We review a grant of summary judgment de novo, making

all justifiable factual inferences in favor of the nonmoving

party. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th

Cir. 2007). “If a rational trier of fact might resolve the issue

in favor of the nonmoving party, summary judgment must be

denied.” Id. (alteration omitted).

Our analysis of the qualified immunity defense in a suit

under § 1983 follows the familiar two-step framework of Sau-

cier v. Katz, 533 U.S. 194 (2001), asking first whether the

officers’ conduct violated a federal right and, second, whether

the right was clearly established at the time. See Blankenhorn,

485 F.3d at 470-71; see also Malley v. Briggs, 475 U.S. 335,

337, 344-46 (1986) (applying the qualified immunity standard

in a false arrest case); Duran v. City of Douglas, Ariz., 904

F.2d 1372, 1376-78 (9th Cir. 1990) (applying the standard in

a First Amendment retaliatory arrest case).6 In this instance,

5

The court granted summary judgment in favor of Ollis because he was

not involved in the events surrounding the complaint and arrest. Beck does

not appeal that decision.

6

The officers argue that we may not consider Malley or other cases not

discussed in the district court. They are wrong. “[A]ppellate review of

BECK v. CITY OF UPLAND 6049

however, the officers, relying on Smiddy I, maintain that they

cannot be held liable for violating Beck’s First or Fourth

Amendment rights by arresting him, because an independent

prosecutor authorized prosecution before the officers sought

and obtained an arrest warrant.7

We disagree. We hold that, on the summary judgment

record, Beck has shown, with regard to either of the asserted

constitutional violations, that the prosecutor’s actions were

not an intervening cause shielding the officers from liability,

albeit for different reasons; that the officers lack qualified

immunity; and that the officers may not avail themselves of

the California statutory immunity they assert.

B. The Presumption of Prosecutorial Independence and

the Causation Problem

[1] A prosecutor’s independent judgment may break the

chain of causation between the unconstitutional actions of

other officials and the harm suffered by a constitutional tort

plaintiff. See Hartman, 547 U.S. 250, 262-63 (2006) (discuss-

ing the issue in the First Amendment context); Smiddy I, 665

F.2d at 266-68 (discussing the issue in the Fourth Amendment

context). Put in traditional tort terms, the prosecutor’s inde-

qualified immunity dispositions is to be conducted in light of all relevant

precedents, not simply those cited to, or discovered by, the district court.”

Elder v. Holloway, 510 U.S. 510, 512 (1994).

7

Beck was arrested and imprisoned after the criminal complaint was

filed. His “false arrest” cause of action might thus be better styled as one

for malicious prosecution. See Blaxland v. Commonwealth Dir. of Pub.

Prosecutions, 323 F.3d 1198, 1204-06 (9th Cir. 2003) (distinguishing

between the two torts at common law). The Smiddy I presumption has,

however, been applied in both false arrest and malicious prosecution

cases. See, e.g., Borunda v. Richmond, 885 F.2d 1384, 1386-87, 1390 (9th

Cir. 1988) (false arrest); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067

(9th Cir. 2004) (malicious prosecution); see also id. at 1069 (referring to

Fourth Amendment malicious prosecution suits). As the distinction makes

no analytic difference here, we use Beck’s terms.

6050 BECK v. CITY OF UPLAND

pendent decision can be a superseding or intervening cause of

a constitutional tort plaintiff’s injury, precluding suit against

the officials who made an arrest or procured a prosecution.

See RESTATEMENT (SECOND) OF TORTS §§ 440 et seq. (discuss-

ing causation problems in tort cases).

The method we have prescribed for addressing this causa-

tion question in Fourth Amendment-based suits differs some-

what from the method the Supreme Court recently set out in

the context of First Amendment retaliatory prosecution suits.8

We first discuss both methods in some detail before explain-

ing how they apply to Beck’s appeal.

We first consider our Fourth Amendment causation law, in

which we have used a rebuttable-presumption-based

approach. In Smiddy I, a § 1983 false arrest case, we adopted

an evidentiary presumption, see Galbraith v. County of Santa

Clara, 307 F.3d 1119, 1126 (9th Cir. 2002), “that the prosecu-

tor filing [a criminal] complaint exercised independent judg-

ment in determining that probable cause for an accused’s

arrest exist[ed],” thereby breaking the “chain of causation

between an arrest and prosecution” and immunizing “investi-

gating officers . . . from damages suffered” after the com-

plaint was filed. Smiddy I, 665 F.2d at 266-67; see also

Smiddy v. Varney, 803 F.2d 1469, 1472 (“Smiddy II”) (9th

Cir. 1986) (discussing the presumption). The Smiddy I pre-

sumption may be rebutted if the plaintiff shows that the

independence of the prosecutor’s judgment has been compro-

mised. Smiddy I, 665 F.2d at 266-67.

8

Prior to Hartman, we sometimes applied Smiddy I in the First Amend-

ment retaliatory prosecution context. See Nadell v. Las Vegas Metro.

Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001). Such application is no

longer proper, as the Supreme Court set out a clearly conflicting approach

to resolving First Amendment causation issues in Hartman. See Miller v.

Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). For this reason,

we refer to Smiddy I as concerning Fourth Amendment causation.

BECK v. CITY OF UPLAND 6051

Smiddy I provided examples of circumstances in which the

presumption of independent judgment will be considered

rebutted, emphasizing that “[t]hese examples are not intended

to be exclusive.” Id. at 267. The enunciated circumstances,

elaborated upon in later cases, include situations in which the

prosecutor was pressured by police or was given false infor-

mation, id. at 266-67; the police “act[ed] maliciously or with

reckless disregard for the rights of an arrested person,” id. at

267; the prosecutor “relied on the police investigation and

arrest when he filed the complaint instead of making an inde-

pendent judgment on the existence of probable cause for the

arrest,” id.9; or the officers “otherwise engaged in wrongful or

bad faith conduct that was actively instrumental in causing the

initiation of legal proceedings,” Awabdy v. City of Adelanto,

368 F.3d 1062, 1067 (9th Cir. 2004). Once “the plaintiff has

introduced evidence to rebut the presumption, the burden

remains on the defendant to prove that an independent inter-

vening cause cuts off his tort liability.” Smiddy I, 665 F.2d at

267. Critically for this case, “[i]f for reasons of privilege or

otherwise the relevant evidence [to challenge the presump-

tion] is not available, no presumption will arise,” id. at 267-

68, and the defendant has the burden to show that the prosecu-

tor’s judgment was independent.10

Having described our approach in Fourth Amendment

arrest cases where a prosecutor’s actions have intervened, we

turn to the Supreme Court’s recent resolution of the similar

causation issues arising from prosecutorial actions in First

Amendment retaliatory prosecution cases. The Court set out

its approach in Hartman, published, as we have noted, after

9

We have since held that a plaintiff must present information in addition

to his own account that contradicts the police report to avail himself of this

showing. See Newman v. County of Orange, 457 F.3d 991, 994-95 (9th

Cir. 2006).

10

As we discuss below, even when privilege has been invoked, the

plaintiff in such cases always has the initial burden of showing that proba-

ble cause for the arrest or prosecution was absent.

6052 BECK v. CITY OF UPLAND

the district court decision in this case. See 547 U.S. at 262-66

(discussing the causation problem).11 Hartman addressed an

allegedly retaliatory prosecution in which the plaintiff con-

tended that postal inspectors retaliated against his constitu-

tionally protected speech by procuring his prosecution. Id. at

252-255. The plaintiff sought to hold the inspectors liable for

the prosecution. Id. The Court noted that the prosecutor’s

presence in the causal chain meant that “the requisite causa-

tion between the defendant[ ] [official’s] retaliatory animus

and the plaintiff’s injury is usually more complex than it is in

other retaliation cases,” id. at 261, because “[e]vidence of an

[official’s] animus does not necessarily show that the [offi-

cial] induced the action of a prosecutor who would not have

pressed charges otherwise.” Id. at 263. This difficulty, cou-

pled with the “longstanding presumption of regularity

accorded to prosecutorial decisionmaking,” id., and the fact

that “it would be unrealistic to expect a prosecutor to reveal

his mind,” id. at 264, gave the Court considerable pause in

determining the circumstances in which a plaintiff alleging a

speech-retaliatory prosecution can “bridge the gap [created by

the independent judgment of the prosecutor] between the non-

prosecuting government agent’s motive and the prosecutor’s

action.” Id.; see also id. at 263 (citing Smiddy I as an example

of the causation problem).

[2] Considering the dilemma created in a First Amendment

retaliatory prosecution case by the prosecutor’s intervening

decision to prosecute, the Court developed a bright-line,

objective standard as a substitute for inquiries into the prose-

cutor’s subjective state of mind. Noting that “there will

always be a distinct body of highly valuable circumstantial

evidence available and apt to prove or disprove retaliatory

causation, namely evidence showing whether there was or

was not probable cause to bring the criminal charge,” id. at

11

Hartman was brought under Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971), the “federal analogue” to § 1983. Hartman,

547 U.S. at 254, 255 n.2.

BECK v. CITY OF UPLAND 6053

261, the Court held that “a retaliatory motive on the part of

an official urging prosecution combined with an absence of

probable cause supporting the prosecutor’s decision to go for-

ward are reasonable grounds to suspend the presumption of

regularity behind the charging decision,” id. at 265. So, under

Hartman, if a plaintiff can prove that the officials secured his

arrest or prosecution without probable cause and were moti-

vated by retaliation against the plaintiff’s protected speech,

the plaintiff’s First Amendment suit can go forward.12

[3] We see no reason to limit Hartman’s probable cause

requirement solely to First Amendment retaliatory arrest and

prosecution cases. Rather, its logic extends to Fourth Amend-

ment false arrest cases like Beck’s, at least to the extent that

the plaintiff must prove the absence of probable cause to rebut

the presumption of independent prosecutorial judgment, when

a prosecutor’s actions are interposed between the actions of

investigating officials and the arrest. Ordinarily, however, the

plaintiff bears the burden of proving the absence of probable

cause anyway in a Fourth Amendment false arrest case. Prov-

ing lack of probable cause is usually essential to demonstrat-

ing that the plaintiff’s Fourth Amendment rights were

violated. As a practical matter, consequently, Hartman will

rarely add to the plaintiff’s ultimate burden in a § 1983 false

arrest case.

C. Hartman and Smiddy I

More difficult is the question whether Hartman requires

that we overrule Smiddy I entirely. Smiddy I requires that

plaintiffs bear a burden of proof, beyond proving the absence

of probable cause, to overcome the presumption of prosecu-

12

We note that plaintiffs stating “ ‘ordinary’ retaliation claim[s]” posing

less complicated causation problems than that addressed in Hartman,

including actions concerning retaliatory searches, need not allege and

show the absence of probable cause. See Skoog v. County of Clackamas,

469 F.3d 1221, 1234 (9th Cir. 2006).

6054 BECK v. CITY OF UPLAND

torial independence. There is considerable tension between

the approach taken by the Court in Hartman and the approach

set out in Smiddy I and the cases following from it. After

Hartman, it is questionable that Smiddy I’s detailed evidenti-

ary inquiry into the independence of the prosecutor’s judg-

ment should still be employed to address the causal chain

problem in Fourth Amendment cases. The Supreme Court’s

simpler, probable-cause-based approach may be all that is

required with regard to the causation issue in the First

Amendment context.

The causal problem is, of course, essentially identical in

both contexts, and Smiddy I requires an inquiry into the prose-

cutor’s actual mental processes to resolve it, an approach

decisively rejected in Hartman. Hartman does require retalia-

tory animus, as well as the absence of probable cause, as ele-

ments of the constitutional tort there at issue. But the

retaliatory animus requirement arises out of the First

Amendment-based constitutional tort alleged in Hartman.

Proof of the absence of probable cause, it appears, is the sole

factor necessary to resolve the chain of causation problem.

Applying that reasoning, it could be held that that sole factor

would also be sufficient in the Fourth Amendment false arrest

context, where the absence of probable cause is the substan-

tive lynchpin of the constitutional tort and must be proven in

any event.13

[4] But Hartman did not involve a Fourth Amendment-

based cause of action. Nor did Hartman explain how its rea-

soning should be applied in such cases. We are mindful that,

as a three-judge panel, our ability to overrule circuit precedent

13

In other Fourth Amendment contexts, no more than proof of an

absence of probable cause is required. See Malley, 475 U.S. at 344 n.7

(indicating, where the arresting officers obtain a warrant without probable

cause, that the independent judgment of the warrant-issuing magistrate

does not give rise to a causation issue in a Fourth Amendment case against

the officers).

BECK v. CITY OF UPLAND 6055

is limited. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th

Cir. 2003) (en banc). Although the reasoning we have out-

lined above has a great deal to recommend it, whether Hart-

man is “clearly irreconcilable” with Smiddy I is unclear, see

id. at 900; Hartman addressed itself only to the “details spe-

cific to retaliatory-prosecution cases,” 547 U.S. at 259. As it

turns out, Beck can satisfy both Hartman and Smiddy I on the

present record. We therefore need not decide whether Hart-

man overruled Smiddy I, and do not do so.

D. Causation in First and Fourth Amendment Cases

After Hartman

[5] To summarize: We hold, first, that to the degree Smiddy

I could be understood under our case law to apply to a First

Amendment-based retaliatory arrest or prosecution cause of

action, Smiddy I is inconsistent with Hartman and cannot

stand. In such cases, we will not separately inquire, through

application of a presumption or otherwise, into the prosecu-

tor’s actual state of mind. Instead, a showing of a “retaliatory

motive on the part of an official urging prosecution combined

with an absence of probable cause supporting the prosecutor’s

decision” will suffice to rebut the presumption of regularity

and settle the causation issue. Hartman, 547 U.S. at 265.

[6] Second, in any constitutional tort case, including Fourth

Amendment-based cases, in which a prosecutor has instigated

a prosecution, it is necessary, if not sufficient, that a plaintiff

seeking to sue non-prosecutorial officials alleged to be

responsible post-complaint for the arrest or prosecution show

the absence of probable cause. If that were not so, Smiddy I

would be irreconcilable with Hartman. See Miller, 335 F.3d

at 900.14

14

It is likely that that burden rested with the plaintiff under Smiddy I

even before Hartman, but we make clear that it does today.

6056 BECK v. CITY OF UPLAND

Third, we do not overrule Smiddy I’s rebuttable presump-

tion approach in the Fourth Amendment context, leaving the

question whether it should be overruled for a case in which

the answer matters. Instead, we demonstrate that Beck sur-

vives summary judgment even if Smiddy I does apply.

To implement our approach, we address Beck’s First and

Fourth Amendment causes of action separately. But, as the

causes of action share the common requirement that Beck

show that probable cause for his arrest was absent, we first

address that issue and hold that probable cause was, indeed,

lacking.

We next hold that Beck has satisfied Hartman, preserving

his First Amendment cause of action, because he has alleged

and shown retaliatory animus under two distinct theories, both

of which are viable on the present summary judgment record.

See Blankenhorn, 485 F.3d at 470. Turning to the Fourth

Amendment cause of action, we observe that the prosecutor,

Gaetano, asserted privilege rather than testifying as to

whether he felt pressure from the police to make his charging

decision and whether he was influenced by the police offi-

cers’ felony submission. Critical evidence necessary to rebut

the Smiddy I presumption of independence is therefore

unavailable, and, under the express language of Smiddy I

itself, Beck is not required to rebut the presumption of pro-

secutorial independence. In the absence of the presumption, a

rational jury could well conclude that the officers had not met

their burden to show “an independent intervening cause cuts

off [their] tort liability.” Smiddy I, 665 F.2d at 267. Beck’s

Fourth Amendment cause of action therefore also survives.

E. Beck’s Constitutional Causes of Action

1. Absence of Probable Cause

We have little difficulty concluding that there was no prob-

able cause to arrest Beck. As we have noted, Beck was

BECK v. CITY OF UPLAND 6057

arrested for threatening the officers, in violation of California

Penal Code § 69. That provision may be violated by attempt-

ing to deter executive officers from their duties by “threat or

violence.” CAL. PENAL CODE § 69 (emphasis added); see also

In re M.L.B., 110 Cal. App. 3d 501 (Ct. App. 1980).

To assure that the statute does not violate the First Amend-

ment by sanctioning constitutionally protected challenges to

police officers’ activities, see City of Houston, Tex. v. Hill,

482 U.S. 451, 462-63 (1987), California courts adopted a nar-

rowing construction. Under that construction, adopted as early

as 1984, the statute’s “threat” provision is applicable only to

“threat[s] of unlawful violence used in an attempt to deter an

officer.” In re Manuel G., 16 Cal. 4th 805, 814-15 (1997); see

also Anderson, 151 Cal. App. 3d 893, 895-96, 898 (Ct. App.

1984) (same).

As a result of this limiting construction, the threats that

have been held to violate § 69 have been unmistakably threats

of violence, including “ ‘Me and my home boys are going to

start killing you and your friends,’ ” In re Manuel G, 16 Cal.

4th at 819; “ ‘I’m tired of you guys fucking with us, and you

better watch out, we’re going to start knocking you guys

off,’ ” id.; “ ‘We’ll get your house. We’ll get your cars. You

can’t be with your family twenty-four hours a day,’ ” In re

M.L.B., 110 Cal. App. 3d at 504; and “ ‘I am going to kill

you. This is a threat. You’re dead.’ ” People v. Hines, 15 Cal.

4th 997, 1058 (1997).

Beck’s statements bear scant resemblance to those that

have been held to violate § 69. In the context of a heated dis-

cussion over zoning violations at a civic function, Beck told

Chief Thouvenell that he “didn’t know who [he] was dealing

with.” At worst, if we suppose that the more profanity-laced

version of Beck’s comments that the officers recall is accu-

rate, Beck may also have sworn and told the officers to back

off. Regardless of the version of his statements we consider,

Beck could not have been understood in context to threaten

6058 BECK v. CITY OF UPLAND

violence. In fact, both officers so declared, maintaining only

that they thought he was threatening their job security.

We conclude, as did the state court deciding Beck’s § 995

motion, that there was no probable cause to arrest Beck for a

violation of § 69, much less for a felony violation of that stat-

ute. He has therefore made the probable cause showing neces-

sary to support both his First and Fourth Amendment causes

of action. We next turn to the other requisite of the First

Amendment cause of action, retaliatory motive.

2. The First Amendment Cause of Action: Retaliation

a. Scope of Appellate Review

We recognize that the district court did not have the oppor-

tunity to consider Hartman and, given the way it conducted

the Smiddy I analysis, did not directly address the retaliation

question. Although it will often be “the better approach” to

remand in such cases for the district court to “apply the appro-

priate standards,” see In re Exxon Valdez, 270 F.3d 1215,

1241 (9th Cir. 2001), “[t]he matter of what questions may be

taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be exer-

cised on the facts of individual cases.” Singelton v. Wulff, 428

U.S. 106, 121 (1976).

We are comfortable resolving the Hartman retaliation issue

on the facts of this case, where the new legal standard arose

during the briefing of this appeal, the standard was brought to

our attention by one of the parties, and, critically, the retalia-

tion issue was extensively litigated in the district court, albeit

under a somewhat different legal framework. See also Kimes

v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (courts may take

up an issue for the first time on appeal “when a change in law

raises a new issue while an appeal is pending”) (quotation in

original omitted); Golden Gate Hotel Ass’n v. San Francisco,

18 F.3d 1482, 1487 (9th Cir. 1994) (“Certainly there are cir-

BECK v. CITY OF UPLAND 6059

cumstances in which a federal appellate court is justified in

resolving an issue not passed on below, as where the proper

resolution is beyond any doubt.”) (quoting Singleton, 428

U.S. at 121).

The reason the retaliation issue was litigated in the district

court, including on the defendants’ Smiddy I-based motion for

summary judgment, is this: Under Smiddy I, proof that offi-

cials have “deliberately or recklessly misled” a prosecutor is

sufficient to show that the prosecutor has not exercised inde-

pendent judgment. See Galen v. County of Los Angeles, 477

F.3d 652, 663-64 (9th Cir. 2007). As part of Beck’s theory of

deliberate falsehood, he argued that the officers were moti-

vated by retaliatory animus to create a false case against him.

The parties therefore litigated that question, which had first

been raised in Beck’s complaint.15 Because the retaliation

issue has therefore been present in the case from the start, all

parties have had ample opportunity to investigate it and to

bring forward evidence and legal arguments regarding it.

Nor does the applicability of Hartman come as a surprise.

Although Hartman was published after Beck’s opening brief

was due, it issued before the officers filed their answering

brief. So, in addition to having addressed the retaliation issue

throughout the litigation, the officers had a chance to address

the Hartman framework — as Beck did in his reply brief —

although they failed to do so.

Further, because we are reviewing a summary judgment

record, we resolve factual disputes in favor of the non-moving

party and decide legal issues de novo. It therefore does not

matter whether the officers might have paid more attention to

rebutting retaliation had they addressed Hartman. We would

still view the facts in the light most favorable to Beck.16 In

15

The district court understood Beck to have alleged that he was “ar-

rest[ed] . . . in retaliation for exposing the allegedly illegal contract

between the City and Intravaia.”

16

Of course, the officers will have an opportunity to contest Beck’s fac-

tual version of the case at trial.

6060 BECK v. CITY OF UPLAND

sum, the officers suffer no prejudice, see Kimes, 84 F.3d at

1126, if we consider here the same retaliation issue which the

parties have already litigated in the context of the Smiddy I

framework.

For these reasons, and because it has already been four

years since Beck’s arrest and three years since this case was

filed, considerations of judicial efficiency lead us to resolve

the matter today. Justice would not be served by subjecting

the parties to further pre-trial disputes over immunity when

the matter can be clearly settled on the present summary judg-

ment record.

b. Retaliation

Beck alleges that his arrest was retaliatory in two regards:

First, he maintains that the officers arrested him in retaliation

for his brusque comments to Chief Thouvenell at the bank

opening party. Second, he contends that the officers’s actions

were the culmination of the extended dispute between Beck

and Upland that began with his protests against the rubble

removal contract and were in retaliation for that protest. On

the summary judgment record, a rational jury could find for

Beck on either theory, see Blankenhorn, 485 F.3d at 470, sat-

isfying Hartman.

[7] As to the first theory: Beck presented evidence showing

that he had a heated confrontation with Chief Thouvenell and

Sergeant Mendenhall at the bank opening party. He could

show that, in the heat of the moment, Thouvenell had told him

that “we should have taken care of you a long time ago.” He

also presented evidence from the Chamber of Commerce

meeting, indicating that Thouvenell, Mendenhall, and Mil-

hiser had been agitated over Beck’s comments and that Thou-

venell, in particular, had threatened that he would take legal

action against Chamber members who interfered with

[8] Beck also could show that the police, the alleged vic-

tims of his crime, did not investigate the matter beyond mak-

BECK v. CITY OF UPLAND 6061

ing a few phone calls before going to the District Attorney to

file charges and secure an arrest warrant. Further, the police

report left out Thouvenell’s hostile comment to Beck and

reported the crime as a potential felony, rather than as a mis-

demeanor, suggesting that it was written to cast Beck in the

worst possible light.

[9] As viewed most favorably to Beck, the facts in this

regard resemble those in Duran, in which a police officer

stopped and arrested a man who first “exchanged a few heated

words” with him and who then made obscene gestures at him

just before the arrest. 904 F.2d at 1374-75. In that case, we

first held that probable cause for the stop was absent and then

warned that it appeared that the officer stopped the plaintiff

“at least partly in retaliation for the insult he received” from

him. Id. at 1377 78. Beck’s showing of a heated personal con-

frontation followed by a hasty arrest likewise could rationally

support a finding of retaliatory animus.

[10] Even if it did not adopt the above theory based on per-

sonal retaliatory animus, a rational jury could find that the

arrest was the culmination of Beck’s long-running dispute

with Upland over his efforts to block the rubble removal con-

tract. Beck presented a substantial case that his protests cre-

ated the tensions that led to his arrest. First, Beck could show

that Chief Thouvenell himself had advised him to work out a

deal with his competitor to share the contract. Second, he

could demonstrate that his competitor had suggested investi-

gating him for zoning violations after threatening that “every

agency” in Upland would be “down on top of [Beck].” Beck

could present evidence that such investigations of existing

nonconforming businesses were against city policy, and that,

at the time of the relevant zoning changes, Upland’s senior

planner was “not aware of one single” enforcement action

against an existing nonconforming use in Upland’s history.

Further, he could demonstrate that Chief Thouvenell and Ser-

geant Mendenhall were involved in the code enforcement

action, and that Beck and Mendenhall had had a dispute when

6062 BECK v. CITY OF UPLAND

Mendenhall arrived to discuss the zoning problems with him.

In addition to these showings, he could add the incidents we

have already described, including, in particular, Chief Thou-

venell’s statements at the Chamber of Commerce meeting. In

short, even if the jury did not believe that the police would

retaliate against Beck solely because of the confrontation at

the bank opening party, Beck could make out a case that the

confrontation was the culmination of a longer conflict rooted

in his First-Amendment-protected contract protest, and that

the arrest was in retaliation for Beck’s overall role in that con-

flict.

Viewed in that light, the facts in this case closely parallel

those in Hartman. The plaintiff in Hartman, Moore, made

equipment used by the postal service and successfully lobbied

against a policy that would have favored his competitors.

Hartman, 547 U.S. at 252-54. After he succeeded, Postal Ser-

vice inspectors began to investigate him for various crimes;

he was prosecuted but was cleared of all charges. Id. at 254.

Record evidence showed that the inspectors had pressured the

U.S. Attorney to prosecute, had thin evidence to support their

criminal allegations, and had been angered by Moore’s activi-

ties. See Moore v. Hartman, 388 F.3d 871, 882-85 (D.C. Cir.

2004).17 Similarly, Beck lobbied against government action

that would have favored his competitors and found himself

under investigation. While Beck might or might not ulti-

mately succeed in convincing a jury that his advocacy efforts

prompted the zoning investigation that escalated into the

arrest, a rational jury looking at the present record in the light

most favorable to Beck could so infer.

[11] Thus, under either view of retaliatory animus, Beck

has met the retaliation prong of Hartman. As we have dis-

cussed, he has also shown that probable cause was absent. He

17

Because the Supreme Court considered only the probable cause ques-

tion, Hartman, 547 U.S. at 256-57, it left the D.C. Circuit’s retaliation

findings undisturbed.

BECK v. CITY OF UPLAND 6063

has therefore completed the Hartman showing, and his First

Amendment cause of action survives.

3. The Fourth Amendment Cause of Action:

Invocation of Privilege

The absence of probable cause also supports Beck’s Fourth

Amendment cause of action. The Smiddy I framework, how-

ever, requires more. For the reasons we have explained, we

address that framework here.

[12] We need not, however, consider, as did the district

court, whether the evidence Beck presented was sufficient to

meet the plaintiff’s Smiddy I burden of rebutting the presump-

tion of prosecutorial independence. Smiddy I held that where

invocations of privilege render “relevant evidence” concern-

ing the prosecutor’s decision to prosecute unavailable, no pre-

sumption of prosecutorial independence arises, and the

plaintiff need not rebut it. 665 F.2d at 267-68.18 Here, the

prosecutor, Gaetano, invoked privilege to shield relevant evi-

dence.

The basis for this privilege-based limitation on the plain-

tiff’s Smiddy I burden is the same concern that led the

Supreme Court in Hartman to abjure a subjective inquiry into

the prosecutor’s state of mind — namely, that ascertaining

that state of mind is likely to be exceedingly difficult. See

Hartman, 547 U.S. at 264. Where the prosecutor claims privi-

lege regarding key factual inquiries essential to rebutting the

Smiddy I presumption, it is unfair to the plaintiff to apply the

presumption, and, pursuant to Smiddy I’s caveat, we may not

do so.

Gaetano did answer some questions with regard to his

charging decision: He explained the nature of the process and

18

After Hartman, of course, the plaintiff always carries the initial bur-

den of showing the absence of probable cause.

6064 BECK v. CITY OF UPLAND

said that he had not actually been ordered by Chief Thouve-

nell or Sergeant Mendenhall to prosecute Beck. But Gaetano

twice asserted privilege when asked if he had been “swayed”

or “pressure[d]” by the police in his charging decision.

[13] The answers to the questions Gaetano refused to

answer are obviously central to the presumption of indepen-

dent judgment that underlies Smiddy I’s causal analysis.

Among the bases for overcoming the Smiddy I presumption is

“a showing that the district attorney was pressured or caused

by the investigating officers to act contrary to his independent

judgment.” Smiddy I, 665 F.2d at 266. With Gaetano’s

answers to questions directed precisely at that consideration

off the table, Beck cannot be required to come forward with

evidence to rebut the presumption of Gaetano’s independent

judgment. Instead, the burden of showing that Gaetano acted

independently falls on the officers.

A rational jury could find that the officers had not met their

burden to show that Gaetano’s judgment was sufficiently

independent as to amount to an intervening cause shielding

them from liability. See id. at 267. The officers were the pur-

ported victims of the crime. Their own descriptions of the

incident were at the core of the brief police report. Gaetano

testified that he conducted no additional legal or factual inves-

tigation of his own. Even when privilege is not asserted, we

have expressed concern about the application of the Smiddy

I presumption where “[t]he prosecutor’s only information

came from the police reports.” Barlow v. Ground, 943 F.2d

1132, 1137 (9th Cir. 1991); see also Blankenhorn, 485 F.3d

at 484; Newman v. County of Orange, 457 F.3d 991, 995 (9th

Cir. 2006); Borunda v. Richmond, 885 F.2d 1384,1390 (9th

Cir. 1988). Here, in addition to the presence of police as vic-

tims and Gaetano’s failure to do any additional investigation,

Gaetano’s decision to charge Beck’s comments as a felony, as

the police report suggested, and the omission of Thouvenell’s

comments to Beck in the police report all call the indepen-

dence of Gaetano’s judgment into serious question.

BECK v. CITY OF UPLAND 6065

[14] In short, Beck has demonstrated that there was no

probable cause for his arrest, and the officers have not met

their burden to show that Gaetano’s judgment acted as an

intervening cause. We therefore hold that, on the present

record, Beck’s Fourth Amendment cause of action may go

forward.

F. Qualified Immunity

Beck has met his burden to establish causation on both his

First and Fourth Amendment causes of action. The remaining

issue on the § 1983 causes of action is whether Chief Thouve-

nell and Sergeant Mendenhall are entitled to qualified immuni-

ty.19 We address that question now.

We have already explained that, on this summary judgment

record, Beck was arrested in retaliation for his speech and that

the arrest was without probable cause. Those explanations sat-

isfy the first step of the qualified immunity inquiry with

regard to the First and Fourth Amendment issues, and we will

not repeat them here. See Saucier, 533 U.S. at 201 (discussing

step one of the qualified immunity inquiry) All that remains

is to determine whether the pertinent law was clearly estab-

lished at the time of the incidents in this case. See id. (discuss-

ing step two). It was.

[15] Regarding the First Amendment cause of action:

Arresting someone in retaliation for their exercise of free

speech rights was violative of law clearly established at the

time of Beck’s arrest. By 1990, it was “well established . . .

that government officials in general, and police officers in

particular, may not exercise their authority for personal

19

The officers do not argue that the intervening actions of the judge

issuing the warrant are of relevance, nor could they do so. As we have

noted, supra n.13, the Supreme Court has held that the ordinary qualified

immunity standard applies in such cases, without an additional causation

step. See Malley, 475 U.S. at 344-45 & 344 n.7, 346 n.9.

6066 BECK v. CITY OF UPLAND

motives, particularly in response to real or perceived slights

to their dignity. Surely anyone who takes an oath of office

knows — or should know — that much.” Duran, 904 F.2d at

1378; see also id. (“[W]hile police, no less than anyone else,

may resent having obscene words and gestures directed at

them, they may not exercise the awesome power at their dis-

posal to punish individuals for conduct that is not merely law-

ful, but protected by the First Amendment.”); United States v.

Poocha, 259 F.3d 1077, 1080 (9th Cir. 2001) (“The Supreme

Court has consistently held that the First Amendment protects

verbal criticism, challenges, and profanity directed at police

officers unless the speech is likely to ‘produce a clear and

present danger of a serious substantive evil.’ ”) (quoting Hill,

482 U.S. at 461); Guilford v. Pierce County, 136 F.3d 1345,

1349 (9th Cir. 1998) (same); MacKinney v. Nielsen, 69 F.3d

1002, 1007 (9th Cir. 1995) (citing Duran for the proposition

that there is a clearly established “First Amendment right to

challenge the police. Even when crass and inarticulate, verbal

challenges to the police are protected.”).

[16] Regarding the Fourth Amendment cause of action: As

we have discussed, the California courts limited § 69 “threat”

violations to threats of violence as early as 1984. The Califor-

nia Supreme Court ratified that interpretation in 1997, seven

years before Beck’s arrest in 2004. See In re Manuel G., 16

Cal. 4th at 814-15. We are aware of no conflicting California

cases. The arrest was therefore in violation of clearly estab-

lished law at the time it occurred, as it was without probable

cause under then-existing California law.

[17] In short, well before 2004, “a reasonable official [in

Sergeant Mendenhall’s position] would understand” that

arresting an individual in retaliation for protected speech is

constitutionally impermissible. See Saucier, 533 U.S. at 202.

Such an officer would also have known that the warrant appli-

cation and criminal complaint were objectively unsupported

by probable cause. Sergeant Mendenhall therefore may not

BECK v. CITY OF UPLAND 6067

claim qualified immunity from liability resulting from the

criminal complaint or the warrant application he filed.

[18] Chief Thouvenell’s position is slightly different: He

did not sign or prepare the police report, the criminal com-

plaint, or the declaration submitted to secure the warrant. We

have held, however, that a supervising official may be liable

in his individual capacity if he “set in motion a series of acts

by others, or knowingly refused to terminate a series of acts

by others, which he knew or reasonably should have known,

would cause others to inflict the constitutional injury.” Larez

v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)

(internal alterations omitted). Thouvenell was one of Beck’s

purported victims. He approved Mendenhall’s investigation of

the incident and told him to present it to the prosecutor. It

should have been clear to Thouvenell from the start that there

was no probable cause to arrest Beck. Yet, he failed to do

anything to stop the process that led to the arrest, but instead

abetted it and threatened Chamber of Commerce members

when they attempted to get involved. He, too, may not claim

qualified immunity here.

There is no remaining barrier to Beck’s § 1983 causes of

action. We therefore reverse the district court’s grant of sum-

mary judgment against Beck on the issue.20

G. The State Law Causes of Action

[19] The district court also granted summary judgment

against Beck on his state law causes of action, relying upon

California Civil Code § 43.55(a), which provides in pertinent

part that:

20

The district court did not reach the question whether the City of

Upland or the Upland Police Department is liable under Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978), if Chief Thouvenell and Sergeant

Mendenhall are liable, and Beck does not raise it on this appeal. We there-

fore do not decide the issue.

6068 BECK v. CITY OF UPLAND

There shall be no liability on the part of, and no

cause of action shall arise against, any peace officer

who makes an arrest pursuant to a warrant of arrest

regular upon its face if the peace officer acts without

malice and in the reasonable belief that the person

arrested is the one referred to in the warrant.

The district court held that Beck had not presented sufficient

evidence to create a material issue as to whether the officers

acted maliciously, so the statutory immunity applies. We dis-

agree.21

Under California law, “[m]alice may be determined by tak-

ing into account all circumstances surrounding the arrest

allegedly known to the arresting officer.” McKay v. County of

San Diego, 111 Cal. App. 3d 251, 254 (Ct. App. 1980). Mal-

ice “may be proved by circumstantial evidence, and is defined

as that attitude or state of mind which actuates the doing of

an act for some improper or wrongful motive or purpose. It

does not necessarily require that the defendant be angry or

vindictive or bear any actual hostility or ill will toward the

plaintiff.” Laible v. Superior Court of the City and County of

San Francisco, 157 Cal. App. 3d 44, 53 (Ct. App. 1984) (quo-

tation marks omitted). Moreover, liability for an unlawful

arrest extends beyond the arresting officer if immunity is not

present: “A party who authorizes, encourages, directs or

assists an officer to do an unlawful act, or procures an unlaw-

ful arrest, without process, or participates in the unlawful

arrest or imprisonment is liable.” Harden v. San Francisco

Bay Area Rapid Transit District, 215 Cal. App. 3d 7, 15 (Ct.

App. 1989) (internal alterations and quotation marks omitted).

[20] Applying these concepts, both Sergeant Mendenhall

and Chief Thouvenell may be held liable for false arrest under

California law if they acted maliciously. The evidence of

21

The officers do not argue that they benefit from any other source of

state law immunity, so we address only § 43.55(a).

BECK v. CITY OF UPLAND 6069

retaliatory intent we have already surveyed is sufficient to

allow a rational jury to find that both the officers “acted for

some improper or wrongful motive or purpose.” Laible, 157

Cal. App. 3d at 53; see also id. at 54 (“It is for the trier of fact

. . . to weigh the available inferences against [the officers’]

profession of pure motives.”). They are thus not immune

under § 43.55(a).

III. Conclusion

Beck’s case may go forward. We remand for trial.

REVERSED AND REMANDED.

IKUTA, Circuit Judge, concurring in part, dissenting in part:

In my view, the district court’s grant of summary judgment

must be reversed for two reasons. First, the district court

granted the defendants’ motion for summary judgment and

dismissed Beck’s § 1983 cause of action based in part on its

determination that the police officers had probable cause to

arrest Beck. This determination was erroneous: the police

officers lacked probable cause to arrest Beck as a matter of

law. See In re Manuel G., 16 Cal. 4th 805, 814-15 (1997).

Second, the district court determined that the officers were

immune from liability under Smiddy v. Varney, 665 F.2d 261

(9th Cir. 1981), due to the prosecutor’s intervening action of

filing a criminal charge against Beck. The Supreme Court’s

recent opinion in Hartman v. Moore, 547 U.S. 250 (2006),

casts doubt on the district court’s conclusion, at least with

respect to Beck’s allegation that the police officers arrested

him in retaliation for his exercise of First Amendment rights.

Beck had attempted to rebut the Smiddy presumption (i.e., the

presumption that a prosecutor’s filing of criminal charges

constitutes an exercise of independent judgment that immu-

6070 BECK v. CITY OF UPLAND

nizes investigating officers) by showing that the police offi-

cers unduly pressured or deceived the prosecutor. See Smiddy,

665 F.2d at 266-68. However, Hartman indicates that the

prosecutor’s intervening action will not immunize the police

officers from a First Amendment retaliatory arrest claim if

Beck can establish that the police officers lacked probable

cause and had a retaliatory intent. 547 U.S. at 265. Because

the district court did not have the benefit of Hartman, and

thus did not apply the correct test to Beck’s First Amendment

claim, we must reverse the grant of summary judgment in

favor of the defendants. I agree with the majority to that

extent, and join in Sections I, II A (excluding the majority’s

holding), II B, paragraphs 1, 2 and 4 of Section II D, and Sec-

tion II E 1.

However, in my view, it is not appropriate to go further and

address issues neither briefed to nor decided by the district

court. Although a First Amendment claim was lurking in

Beck’s complaint, the parties did not discuss it and the district

court did not address it. By the same token, the parties did not

develop their arguments on this key question whether the

record raised a material issue of retaliatory intent on the part

of the police officers. It is inappropriate for us to reach this

mixed issue of law and fact for the first time on appeal in the

absence of development by the parties or a ruling by the dis-

trict court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(“It is the general rule . . . that a federal appellate court does

not consider an issue not passed upon below.”).

Nor should we reach the question whether the Smiddy pre-

sumption immunized the police officers from liability under

Beck’s Fourth Amendment false arrest claim. The district

court had concluded that the police officers were immunized

under Smiddy because Beck had failed to show that the police

officers unduly pressured or deceived the prosecutor. Rather

than address the district court’s ruling, the majority rests its

determination that the Smiddy presumption does not immu-

nize the police officers from Beck’s Fourth Amendment false

BECK v. CITY OF UPLAND 6071

arrest claim on a new ground: the Smiddy presumption fails

because the prosecutor raised the attorney-client privilege and

refused to answer some of Beck’s questions. See maj. op. at

6063-65. But neither party raised this argument even on

appeal—it appears for the first time in the majority opinion.

In my view, it is inappropriate for the majority to decide a key

issue on an unbriefed rationale sua sponte, without giving the

defendants any opportunity to rebut the majority’s reasoning.

See Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207,

1214 (7th Cir. 1993) (Posner, J.) (“Our system unlike that of

the Continent is not geared to having judges take over the

function of lawyers, even when the result would be to rescue

clients from their lawyers’ mistakes.”).

“Our judicial system generally assumes that consideration

of an issue at both the trial court and appellate court level is

more likely to yield the correct result, because the issue will

be more fully aired and analyzed by the parties, because more

judges will consider it, and because trial judges often bring a

perspective to an issue different from that of appellate judg-

es.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d

1141, 1154 (9th Cir. 2000). In the interest of fairness to the

defendants and deference to the district court, I would reverse

the district court on the narrow grounds explained above, and

remand this case for further proceedings.