Conner v. Heiman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM H. CONNER, 

Plaintiff-Appellee,

v. No. 10-17545

STEVE HEIMAN and RUSS NEIL, D.C. No.

Defendants-Appellants,  3:08-cv-00633-

and RCJ-RAM

HARRAH’S OPERATING COMPANY, OPINION

INC.,

Defendant.



Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

January 11, 2012—San Francisco, California

Filed March 9, 2012

Before: John T. Noonan and Milan D. Smith, Jr.,

Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Rakoff

*The Honorable Jed S. Rakoff, Senior District Judge for the U.S. Dis-

trict Court for Southern New York, sitting by designation.

2747

2750 CONNER v. HEIMAN

COUNSEL

John S. Michela, Senior Deputy Attorney General of Nevada,

Reno, Nevada, for the defendants-appellants.

Jeffrey A. Dickerson, Reno, Nevada, for the plain-

tiff-appellee.

OPINION

RAKOFF, Senior District Judge:

Plaintiff-Appellee William H. Conner sues Steve Heiman

and Russ Neil, two Nevada Gaming Control Board agents,

under 42 U.S.C. § 1983. Conner claims that Heiman and Neil

violated his rights under the Fourth Amendment by arresting

him without probable cause to believe that he had committed

a crime. Conner also alleges that Heiman and Neil conspired

with Harrah’s Operating Company (“Harrah’s”) to violate his

rights. On October 20, 2010, the district court denied Hei-

man’s and Neil’s motion for summary judgment based on the

defense of qualified immunity. Heiman and Neil now appeal

from that decision.

We hold that the district court erred when it reserved the

issue of whether Heiman and Neil had qualified immunity for

the jury even though the parties did not materially dispute

what facts Heiman and Neil knew when they arrested Conner.

We further hold that Heiman and Neil did not violate clearly

established rights by arresting Conner. Accordingly, Heiman

and Neil are entitled to qualified immunity, and we reverse

the district court’s denial of their motion for summary judg-

ment.

CONNER v. HEIMAN 2751

BACKGROUND

At summary judgment, the undisputed evidence showed the

following. On July 19, 2008, Conner played baccarat at Har-

rah’s casino. Conner made more than one bet at a first bacca-

rat table, one bet at a second table, and many bets at a third

table. While Conner was playing at the third table, two Har-

rah’s employees, Sang Lee and Linda Coffee, separately indi-

cated that they wished to speak with him. Conner declined to

speak to Lee. A few minutes later, Coffee stopped the game

Conner was playing and advised Conner that the dealer at the

second baccarat table had overpaid him on his wager.

It was Lee who discovered the overpayment when he heard

that Conner had won $2,850 on a single bet at the second

table, whereas, because that table had a wager limit, Conner

could have won at most $1,900 on a single wager. To confirm

that Conner had received an overpayment, Lee called the casi-

no’s surveillance department, which confirmed the overpay-

ment. Coffee then asked Conner to return the overpayment.

Conner refused to do so, inquiring into the basis for Harrah’s

belief that he had received an overpayment. According to a

statement provided by Lee, Conner yelled and responded

rudely. According to a similar statement provided by Coffee,

Conner was “extremely defensive” and “upset.” Instead of

returning the overpayment, Conner made an appointment to

speak with one of Harrah’s games managers.

The next day, Conner met with Jim Webbert, a Harrah’s

games manager, who reiterated that Harrah’s had overpaid

Conner and stated that this had been confirmed on videotape.

Webbert refused, however, to show Conner the video of the

overpayment, and Conner, in turn, continued to refuse to

return the overpayment. On July 23, 2008, Webbert reported

the incident to the State Gaming Control Board. Heiman, who

responded to the report, informed Webbert that, if Conner

refused to return the overpayment after Harrah’s informed

2752 CONNER v. HEIMAN

him of its mistake, then the Gaming Control Board could

investigate the incident as a criminal matter.

When, on August 3, 2008, Heiman received further notifi-

cation from Webbert that Conner still refused to return the

overpayment, Heiman opened an investigation. Heiman

reviewed the surveillance video to confirm that the overpay-

ment had, in fact, occurred. Heiman also reviewed the volun-

tary statements made by Lee and Coffee, which described

how Lee had learned that Conner had received an overpay-

ment and what had happened when Coffee requested that

Conner return the overpayment.

On August 4, 2008, Heiman called Conner. Over the

phone, Heiman informed Conner that, while Conner had com-

mitted no crime by accepting the overpayment, retaining the

overpayment at this point would constitute theft under Nevada

law. Conner, however, refused to return the overpayment

unless he could see the evidence confirming that he had

received it. Conner also asked if Heiman was in Harrah’s

“back pocket” and whether he did the casino’s “dirty work.”

After this conversation, Heiman concluded that he had proba-

ble cause to arrest Conner for theft. Heiman briefed his super-

visor, Senior Agent Russ Neil, on his investigation, showing

him the videotape of the overpayment. Neil agreed with Hei-

man’s conclusions.

On August 6, 2008, Conner appeared at the Gaming Con-

trol Board Office of his own volition and requested to speak

with Dave Andrews, who was Neil’s and Heiman’s supervi-

sor, about the phone call he had received from Heiman. Neil

informed Conner that Andrews was not available. Neil then

frisked Conner. According to Conner, Neil was “dominant

and controlling,” and the search he conducted offended and

unsettled Conner. In his deposition, Conner stated that Hei-

man and Neil informed him that, if he did not pay Harrah’s

$950, they would charge him with a felony and take him to

jail. Neil and Heiman did not let Conner view the video of the

CONNER v. HEIMAN 2753

overpayment, instead informing him that they would present

it only as required by the legal process. When Conner asked

to go to Harrah’s in his own car, Heiman and Neil refused,

placing him under arrest. Heiman and Neil then drove Conner

to Harrah’s, where Conner returned the overpayment to Web-

bert. As Neil left Harrah’s, he said, “I’ll call you later,

buddy,” to Webbert. Then, Heiman and Neil returned Conner

to his car, and the parties separated.

On this record, the district court concluded that, although

“there is no question of fact that a reasonable officer could

have believed Conner had committed the requisite actus reus

for theft, a reasonable jury could find that there was no proba-

ble cause to believe that Plaintiff had the requisite mens rea

for theft.” Specifically, the court concluded that Conner’s “be-

havior was consistent with a person who is accidentally over-

paid, does not realize it, has no way to confirm or deny it

when confronted . . . who is understandably defensive when

accused of theft, and who is understandably suspicious when

his accuser refuses to show him alleged evidence it possess-

es.” Based on this conclusion, the district court denied Neil’s

and Heiman’s motion for summary judgment on Conner’s

Fourth Amendment claim. With respect to the § 1983 conspir-

acy claims, the district court again denied the appellants’

motion for summary judgment, concluding that “there

remains a dispute as to whether the Defendants cooperated

when Harrah’s reported a crime and the State Defendants then

investigated it, arrested Conner on probable cause, and facili-

tated the return of Harrah’s money (a civil debt) via the threat

of criminal prosecution.”

Neil and Heiman appeal from the district court’s decision.

The Court has jurisdiction to hear this appeal because “a dis-

trict court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwith-

standing the absence of a final judgment.” Mitchell v. Forsyth,

2754 CONNER v. HEIMAN

472 U.S. 511, 530 (1985).1 We review a district court’s denial

of a qualified immunity defense de novo. Act Up!/Portland v.

Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

DISCUSSION

A. Whether the District Court Erred by Reserving the

Question of Qualified Immunity for the Jury

Qualified immunity is “an immunity from suit rather than a

mere defense to liability.” Mitchell, 472 U.S. at 526 (empha-

sis in original). Thus, “[w]here 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.” Saucier v. Katz, 533 U.S.

194, 200 (2001), overruled in part on other grounds by Pear-

son v. Callahan, 555 U.S. 223 (2009). While this Court at one

time was of the view that district courts should not decide the

issue of qualified immunity unless a rational jury could reach

only one conclusion, the Supreme Court, in Hunter v. Bryant,

rejected that approach for two reasons. 502 U.S. 224, 227-28

(1991); see also Act Up!/Portland, 988 F.2d at 872. First, the

Supreme Court found that such an approach too often failed

to protect defendants from the expenses of trial. Hunter, 502

U.S. at 228. Second, the Supreme Court noted that the ques-

tion is “whether the agents acted reasonably under settled law

1

Conner argues that the Court lacks jurisdiction over this appeal because

the district court’s denial of Heiman’s and Neil’s qualified immunity

defense turned upon an issue of fact rather than of law. See Johnson v.

Jones, 515 U.S. 304, 319-20 (1995). But even though the district court

posited the existence of a “question of material fact,” its analysis focused

on whether the inferences Heiman and Neil could reasonably have drawn

were “consistent” with their knowledge of the facts. As discussed below,

where “the only disputes involve what inferences properly may be drawn

from . . . historical facts” that are not in dispute, a qualified immunity

claim turns on a legal question that a court must resolve. Peng v. Mei Chin

Penghu, 335 F.3d 970, 979-80 (9th Cir. 2003). Accordingly, the Court has

jurisdiction under Mitchell v. Forsyth.

CONNER v. HEIMAN 2755

in the circumstances, not whether another reasonable, or more

reasonable, interpretation of the events can be constructed.”

Id.

[1] After Hunter, this Court altered its approach to resolv-

ing questions of qualified immunity. See Act Up!/Portland,

988 F.2d at 873. Under the current approach, a district court

should decide the issue of qualified immunity as a matter of

law when “the material, historical facts are not in dispute, and

the only disputes involve what inferences properly may be

drawn from those historical facts.” Peng, 335 F.3d at 979-80.

Only where “historical facts material to the qualified immu-

nity determination are in dispute” should the district court

submit the issue to a jury. Torres v. City of Los Angeles, 548

F.3d 1197, 1211 (9th Cir. 2008).2

[2] Here, the district court found that a “reasonable jury

could find a lack of probable cause at this stage,” not because

2

While certain language in Torres might suggest that a jury should

decide what inferences a reasonable officer may draw from certain evi-

dence, close analysis of the decision refutes such an interpretation. In Tor-

res, the Court refused to decide the issue of qualified immunity because

questions of fact existed regarding (1) whether a witness had “positively

identified” the suspect, (2) whether a different witness had informed the

officers that the suspect had recently joined a gang, and (3) whether the

officers could have reasonably believed “that in [a] group photo [the sus-

pect] was making a gang sign despite the fact that only one of [his] fingers

[was] visible in the photo.” Id. While the Court’s discussion of what offi-

cers could have reasonably believed about the photo might have suggested

that the jury would decide which inferences the officers could draw, the

context of this discussion clarifies that the reasonableness of the officers’

interpretation of the photograph turned upon resolution of the factual dis-

putes, i.e., determination of what the witnesses had told the officers. Thus,

Torres stands for the principle that the district court should submit the

question of qualified immunity to the jury only if the parties materially

dispute what officers knew at the time they arrested a suspect. Put another

way, while determining the facts is the jury’s job (where the facts are in

dispute), determining what objectively reasonable inferences may be

drawn from such facts may be determined by the court as a matter of logic

and law.

2756 CONNER v. HEIMAN

the parties disputed what Heiman and Neil knew about Con-

ner’s actions, but instead because, in the court’s view, those

actions were “consistent” with the inference that Conner had

committed no crime. In doing so, the Court implicitly

acknowledged that no material dispute existed concerning

what facts Heiman and Neil knew. Instead, the only material

disputes concerned “what inferences properly may [have]

be[en] drawn from those historical facts.” Peng, 335 F.3d at

979-80. Accordingly, under Peng, the district court should

have decided “whether probable cause existed” when Neil and

Heiman arrested Conner, and reserving this question for the

jury was error. Id.

B. Whether Neil and Heiman Had Probable Cause to

Arrest, and Thus Qualified Immunity

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their con-

duct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.’ ” Pearson, 555 U.S. at 231 (quoting Harlow v. Fitz-

gerald, 457 U.S. 800, 818 (1982)). Thus, in order to deter-

mine whether qualified immunity protects a government

official, a court must decide, first, whether a plaintiff has pro-

duced evidence showing that the official violated a constitu-

tional right and, second, whether that right was “clearly

established” at the time of the alleged misconduct. Id. at 232.

[3] In the Fourth Amendment context, “an arrest is lawful

. . . only if it is accompanied by probable cause to believe that

the arrestee has committed, or is committing, an offense.”

Torres, 548 F.3d at 1207 n.7. Probable cause exists “if, ‘under

the totality of circumstances known to the arresting officers,

a prudent person would have concluded that there was a fair

probability that [the defendant] had committed a crime.’ ”

Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004)

(quoting Grant v. City of Long Beach, 315 F.3d 1081, 1085

(9th Cir. 2002)). While the requirement of probable cause is

CONNER v. HEIMAN 2757

clearly established, the Supreme Court has specified that the

application of that requirement must be clearly established in

a particularized context. Saucier, 533 U.S. at 202. Thus,

whether a right is clearly established turns on “whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id.

[4] Here, Heiman and Neil argue that, based on all the

facts known to them, they could have reasonably concluded

that a “fair probability” existed that Conner had committed

theft in violation of Nevada Revised Statute § 205.0832(1)(a).

Section 205.0832(1)(a) criminalizes “knowingly . . .

[c]ontrol[ing] any property of another person with the intent

to deprive that person of the property.” The district court con-

cluded that, while there was “no question” that Heiman and

Neil had probable cause to believe that Conner had committed

the actus reus of theft, “a reasonable jury could find that there

was no probable cause to believe that Plaintiff had the requi-

site mens rea for theft,” presumably because Conner’s behav-

ior was “consistent” with that of an innocent person. The fact

that reasonable people could draw different conclusions based

on Conner’s behavior, however, is irrelevant to the probable

cause analysis. See Hunter, 502 U.S. at 228 (“[T]he court

should ask whether the agents acted reasonably under settled

law in the circumstances, not whether another reasonable, or

more reasonable, interpretation of the events can be con-

structed . . . .”). The only question is whether Neil and Hei-

man could have reasonably concluded, under the totality of

the circumstances, that a “fair probability” existed that Con-

ner knew that he controlled Harrah’s property and intended to

deprive Harrah’s of that property.3 Whether the opposite con-

3

Neil and Heiman invite the Court to find that they did not need to have

probable cause concerning Conner’s mens rea. Cf. Rodis v. City, County

of San Francisco, 558 F.3d 964, 970 (9th Cir. 2009) (noting that, in the

unique context of counterfeiting, other circuits have found that knowledge

that a suspect passed a counterfeit note generates probable cause to arrest

the suspect). Because we find that Neil and Heiman could have reasonably

concluded that they had probable cause to believe that Conner had the req-

uisite mens rea, we need not reach the question of whether probable cause

concerning his mens rea was required for an arrest.

2758 CONNER v. HEIMAN

clusion was also reasonable, or even more reasonable, does

not matter so long as the Neil’s and Heiman’s conclusion was

itself reasonable.

[5] We think Neil and Heiman could have reasonably con-

cluded that they had probable cause to believe that Conner

knowingly controlled Harrah’s property and intended to

deprive Harrah’s of that property. Heiman not only personally

reviewed the available evidence, including the videotape, but

also asked Neil to review his findings. The evidence they

reviewed showed that Conner had received an overpayment

and that the nature of the overpayment—payment of $950

more than Conner could have won on the maximum bet—was

one that would have been obvious to most players. Moreover,

Neil and Heiman knew that multiple Harrah’s employees had

informed—or attempted to inform—Conner of the overpay-

ment, and that, when confronted by Lee and Coffee, Conner

responded rudely and defensively. On the basis of this evi-

dence, Neil and Heiman could have reasonably concluded that

a fair probability existed that Conner knew that Harrah’s had

overpaid him. They could have reasonably suspected, for

example, that Conner cynically hoped to keep the money or

that he did not want to accede to Harrah’s demands simply

because he felt offended by the manner in which Harrah’s

employees confronted him. Thus, a reasonable officer would

not find it “clear” that Neil and Heiman violated the Fourth

Amendment when they concluded that they had probable

cause to arrest Conner.

[6] Because Neil and Heiman did not violate clearly estab-

lished Fourth Amendment rights, qualified immunity protects

them from Conner’s claims under § 1983, and they are enti-

tled to summary judgment on those claims. The finding that

Neil and Heiman have qualified immunity also bars Conner’s

§ 1983 conspiracy claim. As this Court noted in Haldeman v.

Golden, a § 1983 conspiracy claim “is not a means of holding

state actors liable on claims from which they are otherwise

immune.” 359 F. App’x 777, 780 (9th Cir. 2009). Accord-

CONNER v. HEIMAN 2759

ingly, Neil and Heiman are also entitled to summary judgment

on Conner’s § 1983 conspiracy claim.

CONCLUSION

[7] For the foregoing reasons, we find that the district court

erred when it reserved the question of appellants’ qualified

immunity defense for the jury. We further find that, because

Neil and Heiman could have reasonably concluded that they

had probable cause to believe that Conner committed theft in

violation of Nevada Revised Statute § 205.0832(1)(a), quali-

fied immunity entitles them to summary judgment on all of

Conner’s claims. Accordingly, we reverse the decision of the

district court and direct it to enter judgment dismissing all

claims against Heiman and Neil.

REVERSED.