Torres v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND TORRES; MARIA ELVA 

ALMADOR-TORRES,

Plaintiffs-Appellants,

v.

No. 06-55817

CITY OF LOS ANGELES; LOS

ANGELES POLICE DEPARTMENT;  D.C. No.

CV-05-04171-RGK

BRAD ROBERTS, LAPD Detective;

JENNIFER HICKMAN, LAPD OPINION

Detective; STEVE PARK, LAPD

Detective; F. RAINS, LAPD

Detective,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted

February 12, 2008—Pasadena, California

Filed August 26, 2008

Before: Betty B. Fletcher and N. Randy Smith,

Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation.

11723

TORRES v. CITY OF LOS ANGELES 11727

COUNSEL

Nelson E. Brestoff (argued), Moskowitz, Brestoff, Winston &

Blinderman, LLP, Valencia, California, Julia A. Follansbee,

Follansbee & Associates, Bend, Oregon, for the plaintiffs-

appellants.

Rockard J. Delgadillo, Janet G. Bogigian, Amy Jo Field

(argued), Los Angeles City Attorney’s Office, Los Angeles,

California, for the defendants-appellees.

OPINION

B. FLETCHER, Circuit Judge:

In 2004, plaintiff Raymond Torres, who was then 16 years

old, was arrested, without a warrant, on charges of murder

and attempted murder. After 162 days of incarceration, Torres

was released when the district attorney dismissed the charges

against him. Following his release, Torres and his mother

(“Plaintiffs”) brought a civil rights action against the City of

Los Angeles, the Los Angeles Police Department (“LAPD”),

and four LAPD detectives (“Defendants”), seeking damages

under both federal and state law. After granting summary

judgment to the City of Los Angeles and the LAPD, the dis-

trict court denied two of Plaintiffs’ motions in limine and,

after all of the parties had presented their evidence to the jury,

granted the remaining Defendants’ motion for judgment as a

matter of law. Plaintiffs appeal the grant of the motion for

judgment as a matter of law as well as the rulings on the

motions in limine. We affirm in part, reverse in part, and

remand.

11728 TORRES v. CITY OF LOS ANGELES

I.

The charges leading to Torres’ arrest arose from a gang-

related shooting in Los Angeles on August 11, 2004. On that

day, Josue Santillan, a member of the Canoga Park Alabama

street gang (“CPA gang”), was driving a car that contained

four other passengers: Diana Hernandez, Santillan’s girl-

friend, who was seated in the front right passenger seat; Joel

Castaneda, who was seated in the back seat directly behind

Hernandez; and two other persons, at least one of them male,

who were also seated in the back seat.1 At one point Santillan

drove by a park in the Reseda area, where, according to Her-

nandez and other witnesses, the male passengers flashed gang

hand signs and shouted challenges at members of the Reseda

street gang who were in the park. Santillan then drove away,

but the members of the Reseda gang gave chase in a car of

their own. When the Reseda gang members’ car pulled along-

side the car driven by Santillan, Castaneda fired several

rounds from a semiautomatic pistol at the Reseda gang mem-

bers’ car, killing the driver and wounding another passenger.

Detectives Roberts, Hickman, Park and Rains investigated

the shooting. On August 25, 2004, two weeks after the shoot-

ing, Detectives Roberts and Hickman questioned Hernandez

about the shooting. Hernandez identified Santillan as the

driver and Castaneda as the shooter, and both were subse-

quently arrested. Hernandez also expressed her belief that all

the male passengers were probably members of the CPA

gang.

Detectives Roberts and Hickman asked Hernandez about

1

Hernandez, who was the detectives’ main source of information about

the shooting, gave different accounts of who was in the car other than her-

self, Santillan and Castaneda. At first she stated that only one other per-

son, a male, was in the car; later she stated that two other persons were

in the car, one male and one female; and later still she stated that only two

other males were in the car.

TORRES v. CITY OF LOS ANGELES 11729

the third male passenger who had been sitting directly behind

Santillan. Hernandez told the detectives that she had never

seen him before, that she did not know his name, and that she

did not remember him well because she had not been paying

attention to him. However, Hernandez was able to describe

this third male passenger as Hispanic, 15 or 16 years old, with

a complexion darker than hers, and very overweight. Her-

nandez also stated that he had some hair. She further

described him as having worn a white T-shirt, blue shorts, and

white tennis shoes. Detective Roberts acknowledged at trial

that Hernandez’s description was “too generic to go anywhere

with it.”

On September 23, 2004, six weeks after the shooting, the

detectives obtained several additional pieces of information in

their investigation of the third male passenger, which led them

to arrest Torres that same day.

First, Detective Hickman spoke to Danny Steinberg, a

school police officer assigned to El Camino High School.

Previously, Steinberg had been questioned by an LAPD Juve-

nile Officer, Marie Lamar, about an outstanding suspect in a

murder case. Officer Lamar had described the suspect as a

short and heavy-set Hispanic male with a shaved head who

was “dressed down gang-style.”2 Steinberg had informed

Officer Lamar that her description matched a student at El

Camino—Torres—and that Torres had recently begun hang-

ing out with gang members at El Camino and had begun

“dressing down as a gangster” and shaving his head. On Sep-

tember 23, Steinberg repeated the same information to Detec-

tive Hickman. There was conflicting testimony at trial,

however, as to whether Steinberg also told Officer Lamar and

Detective Hickman that Torres had “recently been jumped

2

The record does not reveal how Officer Lamar had come to believe that

the third male passenger had a shaved head and was “dressed down gang-

style.”

11730 TORRES v. CITY OF LOS ANGELES

into the CPA gang,” i.e., that Torres had become a member

of the gang.

Second, Detectives Hickman and Roberts spoke to an offi-

cial at El Camino high school, Mark Pomerantz. Pomerantz

gave the detectives two color photos of Torres, one older, in

which Torres is shown with short dark hair, and the other

taken that morning at the detectives’ request, in which Torres

is shown with a shaven head. In addition, Pomerantz dis-

cussed with the detectives a group photo of six young His-

panic males—including Torres and Santillan—that Pomerantz

had provided the LAPD a year earlier when it was investigat-

ing Santillan in connection with another shooting of a Reseda

gang member. The group photo had been taken by a teacher

at a school event called “Melody of Words,” although Detec-

tive Roberts testified at trial that he was unaware of that fact

at the time of Torres’ arrest.

When Pomerantz originally provided the group photo he

had informed the LAPD that two of the individuals in the

photo (neither of them Torres) were members of the CPA

gang. On September 23, Pomerantz told the detectives that

Torres and Santillan were friends and hung out. In the group

photo, Torres’ right hand is not visible and only part of one

finger of his left hand is visible. Conflicting testimony was

presented at trial as to whether Torres is making a gang sign

with his left hand. However, Detectives Roberts and Park

both testified that, at the time of Torres’ arrest, they were

unaware one way or the other whether Torres was a member

of the CPA gang.

In all three photos provided by Pomerantz, Torres is wear-

ing a prominent grey metal cross on a chain around his neck.

Pomerantz also told Detective Hickman that Torres “always

wears [a] grey metal cross on a chain around his neck.” Nota-

bly, Hernandez did not say anything about the third male pas-

senger in the car wearing a chain or cross when the detectives

spoke to her on August 25, 2004.

TORRES v. CITY OF LOS ANGELES 11731

Third, Detective Hickman searched Torres’ name in six dif-

ferent databases: an adult criminal records database, a juve-

nile records database, a Department of Motor Vehicles

records database, the California Criminal History Record Sys-

tem, the Cal-Gangs database, and the gang card file at the

West Valley police station. Detective Hickman found no

matches for Torres.

Fourth, Detective Hickman used the most recent photo of

Torres she had received from Pomerantz to assemble a photo-

graphic identification array of six individuals called a “six-

pack.”3 Detective Hickman used a computer database to find

photos of five other individuals to place in the six-pack,

which she did by searching for photos based on age and phys-

ical characteristics also applicable to Torres. However, while

Detective Hickman first searched for photos of persons who

were not only young male Hispanics but also “heavy,” that

search did not yield a sufficiently large selection to fill the

six-pack with faces that Detective Hickman considered to be

similar to that of Torres. Accordingly, Detective Hickman

expanded her search to include non-heavy persons, which did

yield a sufficiently large selection. Plaintiffs’ police proce-

dures expert testified at trial that the resulting six-pack was

unduly suggestive because aside from Torres’ photo only one

other photo was of a visibly “chubby” person, thus signifi-

cantly increasing the odds that Hernandez would “identify”

Torres in the lineup.

Detectives Roberts, Park and Rains then proceeded to the

residence of Hernandez. Detectives Roberts and Park went

inside to show Hernandez the six-pack; Detective Rains

waited outside in his car. Detective Roberts told Hernandez

that he “had possibly identified the 15- to 16-year old chubby

boy” and then read her a standard “photographic show-up

admonition.”

3

In the six-pack, the photo of Torres is cropped such that the cross hang-

ing from Torres’ neck chain is not visible.

11732 TORRES v. CITY OF LOS ANGELES

After Detective Roberts handed Hernandez the six-pack,

Hernandez stared at it—according to Hernandez for between

five and ten minutes—whereupon Detective Roberts asked

her at whom she was staring. Hernandez then indicated that

she was staring at photo #6, the photo of Torres. However,

there was conflicting testimony as to whether Hernandez also

stated that the person in photo #6 was the third male passen-

ger in the car, or, on the contrary, whether she stated that she

did not know whether it was him or not. It is undisputed, how-

ever, that the detectives then asked Hernandez to write down

what she thought, whereupon Hernandez circled the photo of

Torres with a pen and wrote on the six-pack, “I circle the per-

son in #6 because he looks more likely [sic] to the other guy

in the car.” Detective Roberts acknowledged at trial that,

based solely on what Hernandez wrote on the six-pack, he did

not have probable cause to arrest Torres.

When Detectives Roberts and Park rejoined Detective

Rains outside Hernandez’s home, Detective Roberts told

Rains that Hernandez had identified Torres as the third male

passenger—a statement which Hernandez testified at trial was

false—and said they were going to arrest Torres. Detective

Rains was not shown Hernandez’s written statement on the

six-pack. Detectives Roberts, Park and Rains then went to

Torres’ home. When Torres came outside and the detectives

approached him, Torres did not try to flee. The detectives

engaged in no conversation with Torres but simply arrested

him in his mother’s presence. Detective Park acknowledged

at trial that at the time of Torres’ arrest there was no physical

evidence linking Torres to the shooting.

Torres was charged with murder and attempted murder

based on his alleged role in the shooting of the two Reseda

gang members. However, on March 4, 2005, after 162 days

of incarceration, Torres was released when the district attor-

ney dismissed the charges against him.

Torres and his mother subsequently filed suit, claiming

deprivation of Torres’ Fourth Amendment rights, in violation

TORRES v. CITY OF LOS ANGELES 11733

of 42 U.S.C. § 1983, as well as false arrest and negligent

infliction of emotional distress, in violation of California law.

Defendants moved for partial summary judgment on Plain-

tiffs’ claims against the City of Los Angeles and the LAPD

on the ground that Plaintiffs could not prove liability under

Monell v. New York City Department of Social Services, 436

U.S. 658 (1978). In their motion, Defendants stated that

“[b]ecause triable issues of material fact exist regarding prob-

able cause for Plaintiff’s arrest, Defendants move for partial

summary judgment on Monell liability only.” The district

court granted the motion, a ruling Plaintiffs do not appeal.

On the eve of trial against the remaining Defendants, the

district court denied two of Plaintiffs’ motions in limine: a

motion for an order barring Defendants’ expert witnesses

Detective Jack Giroud and Officer Norm Peters from testify-

ing on the ground that they had failed to provide written

expert reports as required by Federal Rule of Civil Procedure

26(a)(2)(B); and a motion for an order barring the investigat-

ing detectives and all defense experts from testifying that, in

their opinion, probable cause existed to arrest Torres.

After all of the parties had presented their evidence to the

jury, Defendants orally moved for judgment as a matter of

law, pursuant to Federal Rule of Civil Procedure 50(a), as to

all of Plaintiffs’ claims. The district court granted the motion

and dismissed Plaintiffs’ case. In its written order, the district

court concluded that Detectives Hickman and Rains had not

been involved in Torres’ arrest and therefore could not be lia-

ble. The court further concluded that Detectives Park and

Roberts had probable cause to arrest Torres and that, accord-

ingly, Plaintiffs’ § 1983 claim and state law claims should be

dismissed.4 Finally, the court concluded that even if Detec-

tives Park and Roberts did not have probable cause to arrest

4

The district court dismissed Plaintiffs’ state law claim for negligent

infliction of emotional distress because it was predicated on their claims

for violation of civil rights and false arrest.

11734 TORRES v. CITY OF LOS ANGELES

Torres, they were protected from Plaintiffs’ § 1983 claim by

qualified immunity.5

II.

We review de novo the district court’s order granting

Defendants’ motion for judgment as a matter of law under

Rule 50(a). See Santos v. Gates, 287 F.3d 846, 851 (9th Cir.

2002). “Judgment as a matter of law is appropriate when the

evidence presented at trial permits only one reasonable con-

clusion.” Id. In other words, “[a] motion for a judgment as a

matter of law is properly granted only if no reasonable juror

could find in the non-moving party’s favor.” El-Hakem v. BJY

Inc., 415 F.3d 1068, 1072 (9th Cir. 2005). “The evidence

must be viewed in the light most favorable to the nonmoving

party, and all reasonable inferences must be drawn in favor of

that party.” LaLonde v. County of Riverside, 204 F.3d 947,

959 (9th Cir. 2000). “If conflicting inferences may be drawn

from the facts, the case must go to the jury.” Id.

We also review de novo the district court’s finding of prob-

able cause, Rosenbaum v. City and County of San Francisco,

484 F.3d 1142, 1161 n.14 (9th Cir. 2007), as well as its grant

of qualified immunity, Aguilera v. Baca, 510 F.3d 1161, 1167

(9th Cir. 2007). We review for an abuse of discretion the dis-

trict court’s evidentiary rulings. Janes v. Wal-Mart Stores,

Inc., 279 F.3d 883, 886 (9th Cir. 2002).

5

In its written order, the district court made findings of fact and reached

conclusions of law as “required by Rule 52 of the Federal Rules of Civil

Procedure.” This was error because the case was being tried to a jury. See

Fed. R. Civ. P. 52(a)(1) (“In an action tried on the facts without a jury or

with an advisory jury, the court must find the facts specially and state its

conclusions of law separately.” (emphasis added)). Instead, the court

should have determined only whether “a reasonable jury would not have

a legally sufficient evidentiary basis” to find for the non-moving party. See

Fed. R. Civ. P. 50(a)(1).

TORRES v. CITY OF LOS ANGELES 11735

III.

A.

[1] We affirm the district court’s dismissal of Plaintiffs’

case against Detective Hickman. The evidence is undisputed

that Detective Hickman was not present when Torres was

arrested, and there is no evidence that Detective Hickman

instructed the other detectives to arrest Torres or that any of

those detectives consulted with her before making the arrest.

Thus, there is no evidence of “integral participation” by

Detective Hickman in the alleged constitutional violation.

Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996); see

Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th

Cir. 2007) (explaining that integral participation requires

“some fundamental involvement in the conduct that allegedly

caused the violation” and affirming summary judgment in

favor of officer who arrived on the scene after the allegedly

unconstitutional arrest and officer who provided only crowd

control (citing Boyd v. Benton County, 374 F.3d 773, 780 (9th

Cir. 2004)); Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir.

2005) (en banc) (affirming grant of summary judgment in

favor of government agent who did not participate in the

allegedly unconstitutional search).

[2] Moreover, although Detective Park testified that Detec-

tive Hickman, together with Detective Roberts, was in charge

of the investigation of the shooting, there is no evidence that

Detective Hickman acted as a supervisor that would impose

supervisor liability. See Motley, 432 F.3d at 1081 (“A supervi-

sor can be liable under § 1983 if he ‘set[s] in motion a series

of acts by others . . . , which he knew or reasonably should

have known, would cause others to inflict the constitutional

injury.’ ” (modifications in original) (quoting Larez v. City of

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

11736 TORRES v. CITY OF LOS ANGELES

B.

Plaintiffs argue that the district court erred in concluding,

as a matter of law, that Detectives Roberts, Park and Rains

had probable cause to arrest Torres.6

[3] “Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient to

lead a person of reasonable caution to believe that an offense

has been or is being committed by the person being arrested.”

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “While conclu-

sive evidence of guilt is of course not necessary under this

standard to establish probable cause, ‘[m]ere suspicion, com-

mon rumor, or even strong reason to suspect are not

enough.’ ” Id. (quoting McKenzie v. Lamb, 738 F.2d 1005,

1008 (9th Cir. 1984)). Under the collective knowledge doc-

trine, in determining whether probable cause exists for arrest,

we look to “the collective knowledge of all the officers

involved in the criminal investigation[.]” United States v.

Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (internal quota-

tion marks omitted).

[4] As the definition of probable cause indicates, the proper

inquiry is whether the detectives had probable cause to

believe that Torres had committed a crime, not merely that

Torres was the third male passenger in the car.7 While proba-

6

While the district court dismissed Plaintiffs’ case against Detective

Rains on the ground that “there was no evidence showing that Rains was

involved in the arrest of Plaintiff” because “[a]ccording to the evidence,

Rains was only acting as backup during Plaintiff’s arrest and did not per-

sonally assist in or direct the arrest of Plaintiff,” we disagree with this con-

clusion in light of Rains’ own testimony that “I was involved in the

arrest.”

7

Defendants assert that Plaintiffs’ case “has always rested on whether

there was probable cause to believe that [Torres] was the third suspect in

[Hernandez’s] vehicle,” not on whether there was probable cause to

believe that Torres was guilty of murder. However, we consider only the

TORRES v. CITY OF LOS ANGELES 11737

ble cause supports an arrest so long as the arresting officers

had probable cause to arrest the suspect for any criminal

offense, regardless of their stated reason for the arrest, see

Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004); see also

Virginia v. Moore, 128 S. Ct. 1598, 1604 (2008), an arrest is

still unlawful unless probable cause existed under a specific

criminal statute, see Devenpeck, 543 U.S. at 156. Defendants

do not contend that there was probable cause to believe that

Torres had committed any offense besides murder and

attempted murder. In California, both offenses require an

unlawful killing with malice aforethought, see Cal. Penal

Code §§ 187, 664, although malice is implied “when a killing

results from an intentional act, the natural consequences of

which are dangerous to human life, and the act is deliberately

performed with knowledge of the danger to, and with con-

scious disregard for, human life[,]” People v. Cook, 139 P.3d

492, 515 (Cal. 2006) (citation omitted). Therefore, the ques-

tion is whether the detectives had probable cause to believe

that Torres had acted in concert with the shooter, Castaneda,

with conscious disregard for human life.8

latter question because an arrest is lawful under the Fourth Amendment

only if it is accompanied by probable cause to believe that the arrestee has

committed, or is committing, an offense. See, e.g., Lopez, 482 F.3d at

1072. Mere presence in a vehicle in which a crime is being committed is

not an offense. See United States v. Herrera-Gonzalez, 263 F.3d 1092,

1097-98 (9th Cir. 2001) (“Sometimes youthful inexperience and lack of

common sense, impecuniousness, or personal relationships may bring the

innocent into continuing proximity with the guilty, but our line of ‘mere

presence’ cases requires acquittal in the absence of evidence of intentional

participation.”).

8

Defendants “presume” that Torres was arrested and charged with mur-

der on a provocative act murder theory, a theory that can be applied in

“situations in which criminal defendants neither kill nor intend to kill, but

cause a third party to kill in response to their life-threatening provocative

acts.” People v. Cervantes, 29 P.3d 225, 230 (Cal. 2001). However, to the

extent Defendants suggest that Torres’ alleged flashing of gang signs and

shouting of challenges, alone, could constitute the intentional act neces-

sary for murder liability, we disagree. “To satisfy the ‘actus reus’ element

11738 TORRES v. CITY OF LOS ANGELES

In reviewing the grant of a motion for judgment as a matter

of law, we must determine whether a reasonable jury could

have concluded that the detectives lacked probable cause to

arrest Torres. See, e.g., Monroe v. City of Phoenix, Arizona,

248 F.3d 851, 861-62 (9th Cir. 2001) (affirming denial of

Rule 50(a) motion in excessive force case because “[a] rea-

sonable jury could conclude that [the defendant officer] had

probable cause to believe that [the plaintiff] posed a threat of

serious physical harm”), overruled on other grounds as rec-

ognized in Acosta v. Hill, 504 F.3d 1323, 1324 (9th Cir.

2007). Defendants concede that, because we must view the

evidence in the light most favorable to Plaintiffs and draw all

reasonable inferences in their favor, we must assume the fol-

lowing: that school police officer Steinberg did not tell Offi-

cer Lamar or Detective Hickman that Torres had “recently

been jumped into the CPA gang”; that in the group photo Tor-

res is not visibly making a gang sign (or that it was unreason-

able for the detectives to conclude that he is); and that

Hernandez did not positively identify Torres as the third male

passenger in the car.

We conclude that, based on the information in the detec-

tives’ possession at the time of the arrest, a reasonable jury

could have found that the detectives lacked probable cause to

believe that Torres had been the third male passenger in the

car and had acted in concert with the shooter with conscious

disregard for human life.

of [provocative act murder] the defendant or one of his confederates must

commit an act which provokes a third party into firing the fatal shot.” In

re Aurelio R., 212 Cal. Rptr. 868, 870 (Cal. Ct. App. 1985). “[N]o criminal

liability attaches to an initial remote actor for an unlawful killing that

results from an independent intervening cause (i.e., a superseding cause).”

Cervantes, 29 P.3d at 231. Here, the evidence shows that Castaneda fired

the shots not because he was provoked by his fellow passenger’s flashing

of gang signs and shouting of challenges, but rather by the fact that the

Reseda gang members chased the car driven by Santillan.

TORRES v. CITY OF LOS ANGELES 11739

[5] First, Hernandez’s general description of the third male

passenger is not sufficient to create probable cause. “ ‘Under

the law of this Circuit, mere resemblance to a general descrip-

tion is not enough to establish probable cause.’ ” Lopez, 482

F.3d at 1073 (quoting Grant v. City of Long Beach, 315 F.3d

1081, 1088 (9th Cir. 2002)). For example, in United States v.

Ricardo D., we held that the fact that the defendant matched

descriptions of the crime suspect as a “young, thin man, not

too tall” and a “young, Mexican male” were insufficient to

create probable cause. 912 F.2d 337, 342 (9th Cir. 1990).

Here, Hernandez’s description of the third male passenger

was slightly more detailed than the description in Ricardo D.

but, at the same time, did not match Torres insofar as Her-

nandez described the third male passenger as having some

hair. Moreover, the fact that Hernandez did not mention a

chain or cross around the passenger’s neck casts further doubt

on whether Torres matched Hernandez’s general description.

Accordingly, Hernandez’s description alone was clearly

insufficient to create probable cause as a matter of law.

[6] Second, a reasonable jury could have found that Her-

nandez’s “identification” of Torres in the six-pack did not

create probable cause because the six-pack was suggestive

and the “identification” was not sufficiently reliable. See

Grant, 315 F.3d at 1086-88 (holding that two identifications

did not create probable cause as a matter of law because six-

pack was arguably suggestive and identifications lacked suffi-

cient indicia of reliability).

The Supreme Court has cautioned that “[a] major factor

contributing to the high incidence of miscarriage of justice

from mistaken identification has been the degree of sugges-

tion inherent in the manner in which the prosecution presents

the suspect to witnesses for pretrial identification.” United

States v. Wade, 388 U.S. 218, 228 (1967). Here, only one

other photo in the six-pack besides the photo of Torres was

of a visibly overweight individual and thus of a person who

fit Hernandez’s general description. In addition, Detective

11740 TORRES v. CITY OF LOS ANGELES

Roberts told Hernandez, before handing her the six-pack, that

the detectives had “possibly identified the 15 to 16 year-old

chubby boy.” According to Plaintiffs’ expert, that statement

was “absolutely forbidden” and “contaminate[d] the identifi-

cation,” presumably because it informed Hernandez that the

detectives’ suspect was among the photos in the six-pack and

thus could have pressured her to make an identification.

Based on these facts, a reasonable jury could have found the

six-pack to be impermissibly suggestive.

Although a suggestive photo array “may still serve as a

basis for probable cause if sufficient indicia of reliability are

present,” Grant, 315 F.3d at 1087 (citing United States v.

Hanigan, 681 F.2d 1127, 1131 (9th Cir. 1982)), here a reason-

able jury could have found that no sufficient indicia of reli-

ability were present. “Indicia of reliability include: 1) the

opportunity to view the criminal at the time of the crime; 2)

the degree of attention paid to the criminal; 3) the accuracy

of the prior descriptions of the criminal; 4) the level of cer-

tainty demonstrated at the time of the confrontation; and

5) [ ] the length of time between the crime and the confronta-

tion.” Id. (citing Gray v. Klauser, 282 F.3d 633, 639 (9th Cir.

2002)). While Hernandez spent several hours in the car with

the third male passenger, she had never seen him before and

did not pay attention to him. In addition, as previously dis-

cussed, Hernandez gave only a general description of the third

male passenger, which did not match Torres in two important

respects (head of hair and no mention of prominent cross).

Further, Hernandez was not shown the six-pack until six

weeks after the shooting. When she was handed the six-pack,

she stared at it in silence for between five and ten minutes and

then, when asked at whom she was staring, made only a com-

parative identification: she stated that Torres looked more like

the third male passenger than the other persons depicted in the

six-pack (only one of whom was visibly overweight), but that

she was not sure whether or not it actually was him. Thus, a

reasonable jury could have concluded that Hernandez’s iden-

tification lacked sufficient indicia of reliability and thus did

TORRES v. CITY OF LOS ANGELES 11741

not provide the detectives with probable cause. Although

Detective Rains had been told that Hernandez had positively

identified Torres, we nevertheless conclude that the reliability

of the identification was sufficiently questionable for other

reasons to allow a reasonable jury to conclude that Rains, too,

lacked probable cause.

[7] While the detectives also had the additional information

that Torres was friends with Santillan, hung out with gang

members, and had recently begun “dressing down as a gang-

ster,” they had no information that Torres was actually a

member of the CPA gang (or any other gang), and Torres’

name did not come up in any of the six criminal databases

searched by Detective Hickman. Moreover, although finger-

prints of Santillan were found in the car, there was no physi-

cal evidence linking Torres to the vehicle. In addition, the fact

that Torres made no attempt to flee when the detectives came

to arrest him, while by no means dispositive, further indicates

that reasonable minds could disagree about the existence of

probable cause. See Ricardo D., 912 F.2d at 342.

[8] Finally, the detectives lacked evidence that the third

male passenger had acted in concert with Castaneda and had

the requisite mental state to be guilty of murder and attempted

murder. There is no evidence that the third male passenger

helped decide or make plans to challenge or shoot at rival

gang members; that he knew that Castaneda had a gun; or that

he assisted Castaneda in firing the shots. Thus, aside from the

evidence that the third male passenger had flashed gang signs

and shouted challenges, there was no evidence that the third

male passenger had acted in concert with Castaneda and had

done so with a conscious disregard for human life. This dearth

of evidence as to the third male passenger’s culpability further

widens the gap between mere suspicion and probable cause to

believe that Torres had committed a crime.

[9] Accordingly, we conclude that a reasonable jury could

have found that Detectives Roberts, Park and Rains lacked

11742 TORRES v. CITY OF LOS ANGELES

probable cause to believe that Torres had committed a crime.

The district court therefore erred in finding probable cause as

a matter of law.

C.

We next consider whether Detectives Roberts, Park and

Rains were nevertheless protected by qualified immunity.

When a police officer asserts qualified immunity, we apply a

two-part analysis under Saucier v. Katz, 533 U.S. 194 (2001).

The first question is whether the facts, when taken in the light

most favorable to Plaintiffs, show that Defendants’ conduct

violated a constitutional right. Id. at 201. The second question

is whether the constitutional right at issue is “clearly estab-

lished.” Id. at 202.

Initially, Defendants argue that the qualified immunity

issue is one for the court, not the jury, to decide. The implica-

tion of their argument is that we must decide as a matter of

law whether or not Defendants are protected by qualified

immunity, not whether a reasonable jury could have found

that they are not protected by qualified immunity. We reject

Defendants’ argument in light of the procedural posture of

this case and the existence of material issues of disputed fact.

[10] Plaintiffs here appeal the grant of a Rule 50(a) motion

made after completion of the trial but before a jury verdict.

While the Supreme Court has encouraged resolution of the

qualified immunity issue early on in the lawsuit, such as at the

summary judgment stage, see Saucier, 533 U.S. at 200

(“Where the defendant seeks qualified immunity, a ruling on

that issue should be made early in the proceedings so that the

costs and expenses of trial are avoided where the defense is

dispositive.”), Defendants chose not to move for summary

judgment on qualified immunity grounds, acknowledging that

“triable issues of material fact exist regarding probable cause

for Plaintiff’s arrest.” Thus, the case proceeded to trial before

a jury. While at the summary judgment stage the qualified

TORRES v. CITY OF LOS ANGELES 11743

immunity issue is necessarily decided by the court if it turns

on issues of law, we have approved the submission of the

qualified immunity issue to the jury where genuine issues of

material fact exist. See, e.g., Grant, 315 F.3d at 1090 (holding

that “the district court properly submitted the issue of quali-

fied immunity to the jury and entered judgment upon its ver-

dict” because defendants were not entitled to qualified

immunity as a matter of law); LaLonde, 204 F.3d at 953 (“If

. . . there is a material dispute as to the facts regarding what

the officer or the plaintiff actually did, the case must proceed

to trial, before a jury if requested.” (citing Act Up!/Portland

v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)); Thompson v.

Mahre, 110 F.3d 716, 719 (9th Cir. 1997) (“[W]here there is

a genuine issue of fact on a substantive issue of qualified

immunity, ordinarily the controlling principles of summary

judgment and, if there is a jury demand and a material issue

of fact, the Seventh Amendment, require submission to a

jury.”); see also Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th

Cir. 1994) (explaining that the reasons for the existence of the

qualified immunity doctrine “do not . . . suggest that a judicial

determination at [the trial] stage is necessarily better than a

jury verdict” (emphasis in original)).9 Indeed, we have

explained that “sending the factual issues to the jury but

reserving to the judge the ultimate ‘reasonable officer’ deter-

mination leads to serious logistical difficulties.” Sloman, 21

F.3d at 1468.

[11] Defendants contend that our decision in Peng v. Mei

Chin Penghu, 335 F.3d 970 (9th Cir. 2003), supports their

contention that a court, not a jury, must decide the qualified

immunity issue. We disagree. In Peng, the district court had

determined at the summary judgment stage that the defendant

officer was entitled to qualified immunity. Id. at 972-73. On

9

As we noted in Sloman, when a case proceeds to trial “qualified immu-

nity can no longer rightly be called an ‘immunity from suit’ (since the suit

has already proceeded to its conclusion); rather, it is now effectively a

defense.” 21 F.3d at 1468 n.6.

11744 TORRES v. CITY OF LOS ANGELES

appeal, Peng argued, first, that the existence of disputes of

fact precluded the district court from granting summary judg-

ment on the issue of qualified immunity, and, second, that

because more than one reasonable inference could be drawn

from the undisputed facts regarding the existence of probable

cause, the question of probable cause was one for the jury and

not the court. Id. at 978-79. Rejecting both arguments, this

court held that the factual disputes were not material to the

qualified immunity issue, id., and that, “where the material,

historical facts are not in dispute, and the only disputes

involve what inferences properly may be drawn from those

historical facts, it is appropriate for this court to decide

whether probable cause existed at the time [the officer]

arrested Peng,” id. at 979-80 (emphasis added).

[12] However, in this case the material, historical facts are

in dispute. Disputes of fact exist as to whether Hernandez

positively identified Torres, whether school police officer

Steinberg told Officer Lamar and/or Detective Hickman that

Torres had “recently been jumped into the CPA gang,” and

whether it was reasonable for the detectives to believe that in

the group photo Torres was making a gang sign despite the

fact that only one of Torres’ fingers is visible in the photo.

These disputes of fact are material because they go to what

the detectives knew at the time they arrested Torres and,

accordingly, to whether they had probable cause, and reason-

ably believed they had probable cause, to do so. Accordingly,

Peng does not help Defendants.

With respect to the first Saucier question, we have already

determined that a reasonable jury could find that Defendants

violated Torres’ constitutional right to be free from arrest

without probable cause. See Grant, 315 F.3d at 1089 (“Courts

have long held that the Fourth Amendment requires probable

cause before an officer may arrest an individual.” (citing

Beck, 379 U.S. at 91)). In answering the second question,

whether the constitutional right was clearly established, we do

not consider the right as a “general proposition.” Saucier, 533

TORRES v. CITY OF LOS ANGELES 11745

U.S. at 201. Rather, “[t]he relevant, dispositive inquiry . . . is

whether it would be clear to a reasonable officer that his con-

duct was unlawful in the situation he confronted.” Id. at 202.

“Qualified immunity is an objective inquiry—whether the

officers subjectively believed that they had probable cause to

arrest [Torres] is irrelevant.” Grant, 315 F.3d at 1089 (citing

Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

[13] We conclude that a jury could have found that it would

be clear to a reasonable officer that arresting Torres was

unlawful for lack of probable cause. In light of the arguably

suggestive six-pack, Hernandez’s merely comparative identi-

fication six weeks after the shooting, the lack of direct evi-

dence that Torres was a member of a gang (let alone the CPA

gang), the lack of physical evidence tying Torres to the shoot-

ing, the fact that Torres did not attempt to flee when the

detectives approached him, and the lack of evidence that the

third male passenger acted in concert with Castaneda with

conscious disregard for human life, “[a] material issue of fact

existed as to whether a reasonable officer would have relied

on [the information in the detectives’ possession] without fur-

ther verification.” Grant, 315 F.3d at 1090. Accordingly,

“there was enough evidence for a reasonable jury to conclude

that reasonable officers would not have acted as [Detectives

Roberts and Park] did in arresting [Torres].” Id. We therefore

conclude that Detectives Roberts and Park were not entitled

to qualified immunity as a matter of law.

However, we reach a different conclusion as to Detective

Rains. Because Detective Roberts told Rains that Hernandez

had identified Torres and because he did not show Rains Her-

nandez’s written statement on the six-pack, Rains believed

that Hernandez had positively identified Torres.

While “[a]ll officers . . . have an ongoing duty to make

appropriate inquiries regarding the facts received or to further

investigate if sufficient details are relayed,” Motley, 432 F.3d

at 1081 (citation omitted), we have explained that “[w]here an

11746 TORRES v. CITY OF LOS ANGELES

officer has an objectively reasonable, good-faith belief that he

is acting pursuant to proper authority, he cannot be held liable

if the information supplied by other officers turns out to be

erroneous.” id. at 1082 (citing United States v. Hensley, 469

U.S. 221, 232 (1985)). “The lynchpin is whether the officer’s

reliance on the information was objectively reasonable.” Id.

[14] In light of what Detective Roberts told Detective Rains

after showing the six-pack to Hernandez, and in light of the

undisputed fact that, of the four detectives, Detective Rains

was the least involved in the investigation, we conclude as a

matter of law that Detectives Rains reasonably relied on the

(allegedly false) statement by Detective Roberts that Her-

nandez had identified Torres. Based on this conclusion, we

further conclude as a matter of law that a reasonable officer

in Rains’ position would have believed he had probable cause

to arrest Torres. Accordingly, Detective Rains was entitled to

qualified immunity as a matter of law.

D.

We deal with the following evidentiary issues to guide the

district court on remand. Plaintiffs contend that the district

court abused its discretion in denying their motion in limine

seeking to bar the testimony of Defendants’ expert witnesses

Detective Jack Giroud and Officer Norm Peters on the ground

that Defendants failed to provide Plaintiffs written expert

reports for those witness pursuant to Federal Rule of Civil

Procedure 26(a)(2)(B).

Rule 26(a)(2)(B) provides that, “[u]nless stipulated or

ordered by the court, [the disclosure of the identity of wit-

nesses pursuant to Rule 26(a)(2)(A)] must be accompanied by

a written report—prepared and signed by the witness—if the

witness is one retained or specially employed to provide

expert testimony in the case or one whose duties as the party’s

employee regularly involve giving expert testimony.” Fed. R.

Civ. P. 26(a)(2)(B). We have explained that “Rule 37(c)(1)

TORRES v. CITY OF LOS ANGELES 11747

gives teeth to [this requirement] by forbidding the use at trial

of any information required to be disclosed by Rule 26(a) that

is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Out-

door Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).10

[15] We agree with Plaintiffs that Officer Peters should not

have been permitted to testify without providing a written

expert report. Peters, whom Defendants called as a “gang spe-

cialist,” testified that he was regularly employed to give

expert opinions in court about gangs. Accordingly, Peters

falls squarely in the category of witnesses to which Rule

26(a)(2)(B) applies.

We reject Defendants’ argument that Plaintiffs were

required, but failed, to articulate how they would be preju-

diced if they were not provided an expert witness report.

Defendants advance two bases for their argument. First, they

contend that the purpose of an expert report is “the elimina-

tion of unfair surprise to the opposing party and the conserva-

tion of resources,” Sylla-Sawdon v. Uniroyal Goodrich Tire

Co., 47 F.3d 277, 284 (8th Cir. 1995), and that because “Rule

26 focuses not on the status of the witness, but rather on the

substance of the testimony,” Patel v. Gayes, 984 F.2d 214,

218 (7th Cir. 1993) (superseded on other grounds by amend-

ment to the Federal Rules of Civil Procedure, as recognized

in Musser v. Gentiva Health Servs., 356 F.3d 751, 757 n.2

(7th Cir. 2004)), Plaintiffs must articulate how the failure to

provide them with an expert report led to surprise at trial. This

contention fails. In Patel, the Seventh Circuit focused on the

substance of the testimony rather than the status of the witness

10

Rule 37(c)(1) provides in relevant part:

If a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion, at a hear-

ing, or at trial, unless the failure was substantially justified or is

harmless.

Fed. R. Civ. P. 37(c)(1).

11748 TORRES v. CITY OF LOS ANGELES

not to determine whether the party moving under Rule 26

would be prejudiced by the lack of an expert report but only

to determine whether the witnesses in question were experts

for purposes of Rule 26(a)(2)(B) or instead fell under the

“treating physician” exception and therefore were not

required to prepare an expert report in the first place. See

Patel, 984 F.2d at 218. Thus, Patel does not support Defen-

dants’ argument.

The second basis for Defendants’ argument is that Rule

37(c)(1) provides that a party who fails to comply with Rule

26(a) may not use the witness in question to supply evidence

at trial “unless the failure was substantially justified or is

harmless.” Fed. R. Civ. P. 37(c)(1) (emphasis added). Based

on this Rule, Defendants contend that Officer Peters could

testify without providing an expert report because Plaintiffs

failed to articulate how they would be prejudiced without

such a report. This contention also fails. Rule 37(c)(1) pro-

vides a sanction for failure to comply with the disclosure

requirements of Rule 26(a). See Fed R. Civ. P. 37 advisory

committee’s note, 1993 Amendments. In determining whether

this sanction should be imposed, the burden is on the party

facing the sanction—i.e., Defendants—to demonstrate that the

failure to comply with Rule 26(a) is substantially justified or

harmless. See Yeti by Molly, Ltd., 259 F.3d at 1107 (“Implicit

in Rule 37(c)(1) is that the burden is on the party facing sanc-

tions to prove harmlessness.”). Thus, Plaintiffs were not

required to articulate how they would be prejudiced by Defen-

dants’ failure to provide an expert report. Because the district

court denied Plaintiffs’ motion in limine without explanation,

there is no basis for us to conclude that the failure to provide

an expert report was substantially justified or harmless for

purposes of Rule 37(c)(1).

[16] Therefore, we conclude that the district court abused

its discretion in denying Plaintiffs’ in limine motion. We

instruct the court, on remand and upon proper motion by

Plaintiffs, to require that Defendants, pursuant to Rule

TORRES v. CITY OF LOS ANGELES 11749

26(a)(2)(B), provide Plaintiffs with an expert report prepared

by Officer Peters if they wish to call him as an expert witness.

However, we do not reach the same conclusion with respect

to Detective Giroud. While Defendants concede that Detec-

tive Giroud was an expert witness, not all expert witnesses

must provide an expert report. By exclusion, Rule 26(a)(2)(B)

contemplates that individuals who are employed by a party

and whose duties do not regularly involve giving expert testi-

mony need not provide an expert report. See, e.g., Watson v.

United States, 485 F.3d 1100, 1107 (10th Cir. 2007); Bank of

China, New York Branch v. NBM LLC, 359 F.3d 171, 182

n.13 (2d Cir. 2004). We have found no evidence in the record

that the duties of Detective Giroud, who was employed by the

LAPD, regularly involved giving expert testimony. Accord-

ingly, on this record, we cannot determine whether Rule

26(a)(2)(B) applied to him. We therefore leave it to the dis-

trict court, on remand, to determine whether Rule 26(a)(2)(B)

requires Defendants to provide Plaintiffs with an expert report

prepared by Detective Giroud.11

IV.

We affirm the district court’s dismissal of Plaintiffs’ case

against Detective Hickman and of Plaintiffs § 1983 claim

11

Keeping in mind that the inquiry is whether objectively the officers

reasonably believed they had probable cause, we also agree with Plaintiffs

that the district court abused its discretion in denying their motion in

limine seeking to bar Defendants’ witnesses from testify as to their own

opinion about whether there was probable cause to arrest Torres. See Stu-

art v. United States, 23 F.3d 1483, 1487 (9th Cir. 1994) (upholding district

court’s ruling that barred plaintiff’s expert from opining as to whether

probable cause existed on the ground that the jury was more suited than

the expert to answer the question); see also Peterson v. City of Plymouth,

60 F.3d 469, 476 n.10 (8th Cir. 1995); Estes v. Moore, 993 F.2d 161, 163

(8th Cir. 1998). Defendants did not address this issue in their brief and

effectively conceded the issue at oral argument. Accordingly, we instruct

the district court, on remand, to bar Defendants’ witnesses from testifying

as to their opinion that they had probable cause to arrest Torres.

11750 TORRES v. CITY OF LOS ANGELES

against Detective Rains.12 We reverse the grant of judgment

as a matter of law as to Detectives Roberts and Park. We

reverse in part the denial of Plaintiffs’ in limine motions.

[17] Plaintiffs are awarded costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.

12

Because we conclude that a reasonable jury could have found that all

Defendants, including Detective Rains, lacked probable cause to arrest

Torres, Plaintiffs’ California law claims against Detective Rains, which

are not affected by our conclusion that Rains is protected by qualified

immunity, should not have been dismissed. See Blankenhorn, 485 F.3d at

489 (Berzon, J., concurring in part and dissenting in part); Brown v. Li,

308 F.3d 939, 955 (9th Cir. 2002).