Harold Hall v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAROLD C. HALL, 

Plaintiff-Appellant,

v.

CITY OF LOS ANGELES; LOS No. 10-55770

ANGELES POLICE DEPARTMENT;

D.C. No.

DARYL F. GATES, individual

capacity; MARK ARNESON; KENNETH  2:05-CV-01977-

ABC-AJW

CROCKER,

Defendants-Appellees, OPINION

and

LIONEL ROBERT,

Defendant.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, Chief District Judge, Presiding

Argued and Submitted

December 9, 2011—Pasadena, California

Filed September 24, 2012

Before: Dorothy W. Nelson, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Nelson;

Dissent by Judge Ikuta

11737

HALL v. CITY OF LOS ANGELES 11741

COUNSEL

John Burton, The Law Offices of John Burton, Pasadena, Cal-

ifornia, for the plaintiff-appellant.

William J. Genego, Nasatir, Hirsch, Podberesky & Genego,

Santa Monica, California, for the plaintiff-appellant.

Lisa Berger, Deputy City Attorney, Office of the City Attor-

ney of Los Angeles, Los Angeles, California, for the

defendant-appellees.

OPINION

NELSON, Senior Circuit Judge:

Harold C. Hall appeals the district court’s order granting

summary judgment to the City of Los Angeles and individual

defendants Mark Arneson and Kenneth Crocker (collectively,

“Appellees”) in this action brought pursuant to 42 U.S.C.

§ 1983. We conclude that the district court properly granted

summary judgment to Appellees on Hall’s fabrication-of-

evidence claim, and we affirm on that basis. We reverse, how-

ever, the district court’s denial of Hall’s motion to amend his

complaint and remand to the district court with instructions to

allow Hall to plead an explicit Fifth Amendment violation.

The exceptional circumstances in this case persuade us that a

remand is necessary to avoid manifest injustice.

11742 HALL v. CITY OF LOS ANGELES

I. Background

Some might call Hall an unlucky fellow. In October 1984,

shortly after he turned 18, Hall witnessed a drive-by shooting

(“the 54th Street shooting”). Ten people suffered gunshot

wounds, five of whom died. Hall ended up with a broken nose

in the ensuing melee.

The police persuaded Hall, who had no gang affiliation, to

testify in the 54th Street murder case. The State needed Hall

to identify one of the triggermen, “Ace Capone,” an infamous

member of the Bloods gang. Hall’s cooperation with the

police put him in such serious danger that the police protected

his home every night for many months. Nevertheless, Hall

followed through and testified at the preliminary hearing.

Midway through his testimony, an attorney revealed Hall’s

home address. Hall abruptly left the stand, highly agitated and

nervous. He had to be persuaded to finish testifying.

Following the preliminary hearing, the police continued to

worry about Hall’s safety. Wayne Dufort, a detective on the

54th Street case, wanted to keep Hall safe both for Hall’s own

sake and to ensure his eyewitness testimony at trial. Dufort

urged Hall to move a number of times, to no avail. Dufort

always was worried about Hall and thought that “there just

didn’t seem to be enough protection.”

Between the preliminary hearing and Hall’s arrest for rob-

bery nine months later, Dufort visited Hall’s home regularly,

sometimes daily. Dufort and Hall met in person about 200

times during those months. These visits fostered a symbiotic

friendship of sorts between the two unlikely companions. In

addition to being concerned for Hall’s safety, Dufort grew to

care for and like Hall during that time. The detective wanted

to see Hall find a job, attain success and remain safe from any

harm he risked by testifying in the 54th Street murder case.

Dufort even recommended Hall for a job and gave him a char-

acter reference. For his part, Hall saw Dufort as a friend, and

HALL v. CITY OF LOS ANGELES 11743

maybe even as a father figure. Dufort gave Hall money,

helped him get a job and treated him with respect.

Meanwhile, someone murdered siblings Nola Duncan and

David Rainey in June 1985 (“the Duncan-Rainey murders”).

Hall, who lived near the crime scene, gathered with other

curious neighbors to try to see what had happened. The close

proximity of his home to where the police found Duncan’s

body appears to be Hall’s only connection, if one could call

it that, to the crime.

The police had reason to believe that Theadry Art Powell,

Jr. committed the murders. Powell had a motive: Duncan sold

Powell low-quality or doctored PCP hours before she died.

When Powell discovered what Duncan had done, a witness

overheard Powell exclaim, “I hate that bitch, go kill her!”

before three men left Powell’s house. When questioned by

police, Powell initially claimed that he had not seen Duncan

in three months, but later changed his story twice and admit-

ted he had seen her on the night she died. Powell ultimately

implicated two of his associates, Jerry Williams and Lonnie

Wardlow, suggesting that maybe one or both of them took

part in Duncan’s murder. A polygrapher determined that both

Powell and Wardlow falsely denied their involvement in Dun-

can’s killing. Despite these leads, the police did not investi-

gate Powell, Williams or Wardlow as suspects in Duncan’s

murder.

The police arrested Hall for robbery in August 1985, six

weeks after the Duncan-Rainey murders. Upon his arrest, Hall

reached out to Dufort, seeking protection inside the jail from

gang members who sought revenge for Hall’s testimony in the

54th Street shooting case. Dufort arranged for Hall to be

housed with other informants. While his segregation from the

general population may have helped protect Hall from physi-

cal attacks, he became a sitting duck for predatory informants.

Three experienced jailhouse informants, with cases pending,

discussed Duncan’s murder with Hall. Those informants then

11744 HALL v. CITY OF LOS ANGELES

falsely implicated Hall in the Duncan-Rainey murders by con-

cocting a story that Hall had confessed to the murders.

Detectives Arneson and Crocker, Appellees, worked on the

Duncan-Rainey case and received information from these jail-

house informants incriminating Hall. The first time Arneson

and Crocker interviewed Hall, they asked him what he had

heard about the Duncan-Rainey murders. Hall responded that

he “just heard some stuff” and that he was “just a witness.”

The officers did not read Hall his Miranda rights. The next

interview took place four days later and lasted about ten min-

utes. Two days later, on September 11, 1985, Arneson called

Dufort. Arneson said that he planned to interview Hall and

insisted that Dufort be there, but would not say why. Dufort

tried several times to avoid attending the interview because he

was too busy with other work, but ultimately agreed to meet

Arneson at the jail. Dufort arrived with his partner, Aaron

Martin. They met with Arneson and Crocker, as well as with

informant Cornelius Lee. Lee identified Hall as the driver in

the 54th Street shooting, suggesting that Hall was not, in fact,

an innocent witness as he had testified.

The police then interrogated Hall. First, Dufort and Martin

questioned Hall for several hours about the 54th Street shoot-

ing. Arneson and Crocker popped into the interview room to

ask if they could speak to Hall after Dufort and Martin were

finished. The police then moved Hall to a different booth

where all four detectives questioned him about the Duncan-

Rainey murders. The detectives did not advise Hall of his

Miranda rights. The detectives used a “we know more infor-

mation than you think we know” technique in questioning

him.

The police asked Hall whether, before the murder, he was

smoking dope at a beauty shop with Duncan, whether he had

sex with her and whether he had stabbed her. Hall denied

stabbing Duncan or having anything to do with her murder,

but the police persisted. Arneson falsely claimed that the

HALL v. CITY OF LOS ANGELES 11745

police had found Hall’s semen in Duncan’s mouth and his fin-

gerprints on her body. At this point, Hall became very afraid.

He asked for an attorney. Arneson asked Hall why he needed

an attorney if he was innocent and said that the only people

who need attorneys are guilty and trying to hide something.

Arneson then told Hall that the police had found his footprint

in the alley near Duncan’s body. Hall persisted in his denials.

Arneson then suggested that the police file charges against

Hall. Dufort warned Hall that if the police filed murder

charges against him and a jury convicted him, he would go to

prison with Ace Capone, the Bloods gang member he testified

against, and that Capone would kill him. Crocker added that,

if Hall ended up in state prison, all the Bloods would be after

him for testifying against Capone and that all the Crips, the

rival gang, would be after him for driving Capone to the 54th

Street shooting. Hall felt tired and hungry, but the detectives

kept berating him. The police continued to reject Hall’s

claims that he had nothing to do with the murders.

Fear took over. Hall worried that if he did not confess, the

police would file murder charges. If he was convicted of mur-

der, he would go to prison and be killed. He also worried that

if he did not cooperate, the police would remove him from

protective housing and put him in the general population,

where he would be in danger. Hall broke down and cried,

hoping his display of emotion would inspire mercy. It did not.

Hall gave in to desperation, fear and fatigue. The police fed

Hall the “facts” about what happened the night of the Duncan-

Rainey murder. Hall either acquiesced to each statement or

repeated it back to Arneson. Hall both initialed next to mis-

takes in the statement Crocker had handwritten and signed the

statement at the bottom, as the police directed. He did not

read the statement. This interrogation lasted somewhere

between two and six hours, and the police did not afford Hall

any food or bathroom breaks.

11746 HALL v. CITY OF LOS ANGELES

After Arneson and Crocker left, Dufort and Martin contin-

ued to interrogate Hall about the 54th Street shooting case

until the early morning. In all, Hall was questioned between

17 and 19 hours that day. Hall was handcuffed during the

interrogations and denied food.

The State charged Hall with the murders of Duncan and

Rainey. No physical or forensic evidence connected Hall to

the murders. The sole evidence admitted at trial comprised

Hall’s confession and two documents provided by jailhouse

informant Lee—the same Lee who implicated Hall as the

driver in the 54th Street shooting. Lee had the cell next to

Hall. Lee and Hall had passed sheets of paper back and forth

between their cells, with Lee sending over written questions

and Hall sending back written responses. Hall’s answers, gen-

erally innocuous taken by themselves, appeared to incriminate

him in the Duncan murder. Expert testimony at trial estab-

lished that the handwriting on the notes belonged to both Hall

and Lee. Many years after trial, Lee admitted that he had

erased and re-written the questions after Hall answered them,

making it look as though Hall had confessed to killing Dun-

can, when he had not in fact done so.

Hall was convicted of the Duncan-Rainey murders based

on the confession Crocker wrote and the falsified documents

Lee gave to the police. Hall spent nineteen years in prison.

We granted his habeas petition in 2004, upon determining that

Hall’s conviction was predicated on the documents Lee falsi-

fied, resulting in a denial of due process. Hall v. Dir. of Corr.,

343 F.3d 976 (9th Cir. 2003) (per curiam). The State did not

retry Hall, and he was released from custody in August 2004.

Hall now works full-time for the Los Angeles County Bar

Association coordinating the Indigent Criminal Defense

Appointments Program.

Following his release, Hall brought this action for damages

pursuant to 42 U.S.C. § 1983. The district court, with Judge

Schiavelli presiding, granted Appellees’ first summary judg-

HALL v. CITY OF LOS ANGELES 11747

ment motion. We reversed and remanded on two issues. First,

Hall based his claim against the individual detectives on

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en

banc), which held that defendants enjoy a constitutional right

to be free from prosecution based on deliberately fabricated

evidence. We held that the district court wrongly precluded

Hall’s claim based on Devereaux prong (2) that the individual

detectives used such abusive and coercive investigative tech-

niques that they knew or should have known that those tech-

niques would yield false information. In addition, we

disagreed with the district court that Hall had abandoned his

municipal liability claim. Hall v. City of Los Angeles, No. 07-

56853, 2009 U.S. App. LEXIS 15428 (9th Cir. July 13, 2009)

(unpublished).

On remand, the district court, with Chief Judge Collins pre-

siding, again granted summary judgment for Appellees. The

district court held that Hall’s coerced interrogation claim was

not cognizable under Devereaux prong (2) and concluded that

even if Devereaux applied, Hall had not raised triable issues

of fact to support his fabrication-of-evidence claim. The court

also granted qualified immunity to the officers. This timely

appeal followed.

II. Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo both the district court’s compliance with our

mandate, Snow-Erlin v. United States, 470 F.3d 804, 807 (9th

Cir. 2006), and its order granting summary judgment,

Bamonte v. City of Mesa, 598 F.3d 1217, 1220 (9th Cir.

2010). We view the evidence in the light most favorable to

Hall, the non-moving party, to determine whether any genuine

issues of material fact exist. Id., 598 F.3d at 1220. If not,

Appellees are entitled to judgment as a matter of law. Id.

11748 HALL v. CITY OF LOS ANGELES

III. Discussion

A. Fabrication-of-Evidence Claim

1. Law of the Case and the Rule of Mandate

At the outset we must determine whether the law of the

case or the rule of mandate precluded the district court from

determining the applicability of Devereaux prong (2) to Hall’s

coercive interrogation claim. They did not.

The law of the case doctrine, a judicial invention, aims to

promote the efficient operation of the courts. Milgard Tem-

pering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.

1990). It generally preludes a court from reconsidering an

issue decided previously by the same court or by a higher

court in the identical case. United States v. Lummi Indian

Tribe, 235 F.3d 443, 452 (9th Cir. 2000). The issue in ques-

tion must have been decided explicitly or by necessary impli-

cation in the previous disposition. Id. Application of the

doctrine is discretionary. We therefore review the district

court’s decision for abuse of discretion. See Milgard Temper-

ing, 902 F.2d at 715.

“The rule of mandate is similar to, but broader than, the law

of the case doctrine.” United States v. Cote, 51 F.3d 178, 181

(9th Cir. 1995). A district court that has received the mandate

of an appellate court cannot vary or examine that mandate for

any purpose other than executing it. Id. At the same time, the

rule of mandate allows a lower court to decide anything not

foreclosed by the mandate. Herrington v. County of Sonoma,

12 F.3d 901, 904 (9th Cir. 1993). A district court is limited

by our remand when the scope of the remand is clear.

Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir.

2006). Violation of the rule of mandate is a jurisdictional

error. United States v. Thrasher, 483 F.3d 977, 982 (9th Cir.

2007).

HALL v. CITY OF LOS ANGELES 11749

Here, the district court did not violate the law of the case.

The applicability of Devereaux prong (2) to Hall’s coercive

interrogation claim had never been considered or decided by

any court. Our prior decision remanding to the district court

stated only that the opinion granting Hall habeas relief did not

preclude his § 1983 claim for a Devereaux prong (2) viola-

tion. The decision did not then go on to analyze whether

Devereaux prong (2) applied to Hall’s coercive interrogation

claim. Hall, 2009 U.S. App. LEXIS 15428, *4-5.

Nor did the district court violate the rule of mandate, as it

was free to decide anything not foreclosed by the mandate.

See Herrington, 12 F.3d at 904. The mandate stated, “Because

the district court’s decision regarding collateral estoppel pre-

vented the court and the parties from discovering and consid-

ering the evidence relating to Devereaux prong (2), we

reverse the district court on its determination of prong (2).”

Hall, 2009 U.S. App. LEXIS 15428, at *5. We did not impose

clear limits on the scope of the remand. See Mendez-

Gutierrez, 444 F.3d at 1172. Moreover, when a court is con-

fronted with issues that the remanding court never considered,

the “mandate[ ] require[s] respect for what the higher court

decided, not for what it did not decide.” United States v. Kel-

lington, 217 F.3d 1084, 1093 (9th Cir. 2000) (emphasis

added) (internal quotation marks and citations omitted). The

district court properly considered whether Hall’s coercive

interrogation claim fell within the purview of Devereaux

prong (2).

2. Cognizability of Coercive Interrogation Claim

Next we turn to the merits of the summary judgment

motion granted below. We must consider the district court’s

conclusion that Hall could not proceed on the theory, pursuant

to Devereaux prong (2), that his interrogation constituted fab-

rication of evidence in violation of the Fourteenth Amend-

ment. The district court did not err.

11750 HALL v. CITY OF LOS ANGELES

[1] “Section 1983 creates a private right of action against

individuals who, acting under color of state law, violate fed-

eral constitutional or statutory rights.” Devereaux, 263 F.3d at

1074. Section 1983 “is not itself a source of substantive

rights, but merely provides a method for vindicating federal

rights elsewhere conferred.” Graham v. Connor, 490 U.S.

386, 393-94 (1989) (internal quotation marks and citations

omitted). Thus, the nature of a Section 1983 action requires

us to determine whether the right Hall identifies is in fact the

one that was allegedly infringed. See id. at 394.

[2] Hall asserts a Fourteenth Amendment due process

claim, predicated on Devereaux prong (2), that “there is a

clearly established constitutional due process right not to be

subjected to criminal charges on the basis of false evidence

that was deliberately fabricated by the government.”

Devereaux, 263 F.3d at 1074-75. We derived this right from

the Supreme Court’s holding in Pyle v. Kansas, 317 U.S. 213,

216 (1942), that “the knowing use by the prosecution of per-

jured testimony in order to secure a criminal conviction vio-

lates the Constitution.” Devereaux, 263 F.3d at 1075. To

support a Devereaux deliberate-fabrication-of-evidence claim,

a plaintiff:

must, at a minimum, point to evidence that supports

at least one of the following two propositions: (1)

Defendants continued their investigation of [plain-

tiff] despite the fact that they knew or should have

known that he was innocent; or (2) Defendants used

investigative techniques that were so coercive and

abusive that they knew or should have known that

those techniques would yield false information.

Id. at 1076. The only Devereaux issue before us relates to

prong (2). See Hall, 2009 U.S. App. LEXIS 15428, at *3-5.

We must determine whether Hall has put forth specific facts

showing that there is a genuine issue of material fact whether

Arneson and Crocker used techniques so coercive and abusive

HALL v. CITY OF LOS ANGELES 11751

in interrogating Hall that they knew or should have known

those techniques would generate false evidence. Devereaux,

263 F.3d at 1076.

[3] But it is the Fifth Amendment, not the Fourteenth

Amendment, that governs Hall’s claim. “Where a particular

Amendment provides an explicit textual source of constitu-

tional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of

substantive due process, must be the guide for analyzing such

a claim.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (inter-

nal quotations and citations omitted). The Fifth Amendment

provides that no person “shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V.

Using a coerced confession against the accused in a criminal

proceeding implicates this Fifth Amendment privilege. E.g.,

Crowe v. County of San Diego, 608 F.3d 406, 427-29 (9th Cir.

2010) (discussing Chavez v. Martinez, 538 U.S. 760, 765

(2003) (plurality). Here, Hall claims that the detectives

coerced his confession and then used that confession to secure

his conviction. Thus, the Fifth Amendment is the explicit con-

stitutional provision that governs Hall’s claim.

[4] Hall has not brought a Fifth Amendment claim regard-

ing his confession, however. While Hall did seek to amend his

complaint to add an explicit Fifth Amendment claim, Judge

Schiavelli denied that motion. This is where Devereaux prong

(2) comes into play. Most likely because Hall’s complaint

does not include a Fifth Amendment claim, Hall alleges that

Appellees violated his Fourteenth Amendment substantive

due process right not to suffer a conviction based on deliber-

ately fabricated evidence. He attempts mightily to make his

coerced confession claim fit within a fabrication-of-evidence

framework. However artful this argument may be, it comes to

nothing. As the district court held, Hall “cannot remedy his

inadequate pleading now by repackaging a Fifth Amendment

coerced interrogation claim as one for deliberate fabrication

of evidence arising under the Fourteenth Amendment.”

11752 HALL v. CITY OF LOS ANGELES

A survey of our caselaw confirms that Hall misses the mark

when he construes his coerced-confession claim as properly

cognizable under Devereaux prong (2). The facts in

Devereaux concerned the investigation of alleged sex abuse

involving lengthy and improper interviews of purported child

victims. 263 F.3d at 1073. These children did not endure

coerced interrogation techniques as suspects, but as third par-

ties. Moreover, in finding a right to be free from deliberately

fabricated evidence in Devereaux, we relied in part on Pyle.

That case involved perjured testimony, also furnished by third

parties. 317 U.S. at 214. In fact, all of our published cases that

follow Devereaux concern interview techniques used to elicit

evidence from third-party witnesses, not the coerced interro-

gation of a suspect. See, e.g., Stoot v. City of Everett, 582 F.3d

910, 919 n.9 (9th Cir. 2009) (discussing claim that detective

coerced child victim); Gausvik v. Perez, 345 F.3d 813, 816-17

(9th Cir. 2003) (discussing claim that police officer used

“overbearing tactics” in interviewing victims of alleged sex

abuse); Cunningham v. City of Wenatchee, 345 F.3d 802, 812

(9th Cir. 2003) (discussing claim that officers used coercive

tactics when interviewing suspect’s daughters). The one case

that did not involve third party witnesses also did not involve

the coercive interrogation of a suspect. See Costanich v. Dep’t

of Soc. & Health Servs., 627 F.3d 1101, 1111-14 (finding due

process right to be free from deliberately fabricated evidence

in a child abuse proceeding where plaintiff produced evidence

that a social worker deliberately falsified statements).

[5] There is no question that the interrogation tactics Hall

alleges trouble us, but we are bound by the law as it stands.

Hall’s coerced confession claim falls within the explicit lan-

guage of the Fifth Amendment and does not arise as a subset

of the substantive due process right set forth in Devereaux

prong (2). We have little choice but to affirm the grant of

summary judgment to Appellees. Because we affirm the con-

clusion below that Devereaux prong (2) does not apply to

Hall’s coerced confession claim, we have no occasion to con-

sider the district court’s holding that Hall did not create triable

HALL v. CITY OF LOS ANGELES 11753

issues of fact in support of his deliberate fabrication-of-

evidence claim.

3. Qualified Immunity

The district court did not err in granting qualified immunity

to Arneson and Crocker. They are entitled to qualified immu-

nity unless (1) Hall has alleged facts that make out a violation

of a constitutional right and (2) that constitutional right was

clearly established at the time of the officers’ alleged miscon-

duct. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)).

[6] As discussed, Hall’s right to be free from criminal

charges based on evidence deliberately fabricated by the gov-

ernment does not encompass Hall’s coerced confession claim.

Hall, therefore, has not alleged facts that would establish the

violation of his constitutional rights. The detectives therefore

enjoy qualified immunity as to this claim, and we need not

address whether the right Hall asserts was clearly established

at the time of his interrogation. See id. at 232-36.

4. Municipal Liability

Because Hall has not presented evidence creating a triable

issue of fact that Appellees violated his constitutional rights,

we need not reach the issue of municipal liability pursuant to

Monell v. Department of Social Services, 436 U.S. 658, 694

(1978). See Aguilera v. Baca, 510 F.3d 1161, 1174 (9th Cir.

2007).

B. Fifth Amendment Coerced Confession Claim

[7] At oral argument, we asked the parties whether we

have the authority to remand this matter to the district court

with instructions to allow Hall to amend his complaint to

allege an explicit Fifth Amendment coerced confession claim.

We also asked the parties whether, if we do in fact have the

11754 HALL v. CITY OF LOS ANGELES

authority to remand this case to the district court, we should

exercise our discretion to do so. To give the parties a full and

fair opportunity to address these questions, we also ordered

supplemental briefing.

1. Jurisdiction

Before considering the propriety of remanding this matter,

we must ensure that we have appellate jurisdiction to consider

sua sponte whether the district court erred in denying Hall’s

request to amend the complaint to incorporate an explicit

Fifth Amendment claim. See Rowe v. United States, 633 F.2d

799, 800 (9th Cir. 1980). We do.

“The courts of appeals . . . shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States . . . .” 28 U.S.C. § 1291. An order denying leave to

amend a complaint is not appealable. Bradshaw v. Zoological

Soc’y. of San Diego, 662 F.2d 1301, 1304 (9th Cir. 1981).

“Such orders, as a class, contemplate further proceedings in

the district court, and [we] ha[ve] previously held that review

is available after the final judgment, into which they merge.”

Id. Once a district court enters final judgment and a party

appeals, however, those earlier, non-final orders become

reviewable. Licthfield v. Spielberg, 736 F.2d 1352, 1355 (9th

Cir. 1984) (“An appeal from a final judgment draws in ques-

tion all earlier, non-final orders and rulings which produced

the judgment.”). This is so because the earlier non-final orders

merge with the judgment. Bradshaw, 662 F.2d at 1304.

[8] This case comes to us on a timely notice of appeal of

the district court’s summary judgment, a final order. By

appealing the final judgment, Hall implicitly brought all of the

district court’s subordinate orders within the jurisdiction of

our court. Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.

1994) (“When reviewing final judgments in civil proceedings

we have jurisdiction to review any interlocutory orders or

other rulings that may have affected the outcome below.”),

HALL v. CITY OF LOS ANGELES 11755

superseded on other grounds by 28 U.S.C. § 2253(c); U.S.

Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d

1099, 1103 (9th Cir. 1985) (“While we recognize the impor-

tance of correcting erroneous interlocutory rulings as early as

possible, the failure to challenge an erroneous interlocutory

ruling does not make the error appeal proof when the final

judgment comes before this court for review”), superseded on

other grounds by 28 U.S.C. § 2253(c); cf. Sackett v. Beaman,

399 F.2d 884, 889 n.6 (9th Cir. 1968) (“[T]he question of

whether there was an abuse of discretion in denying leave to

amend can be reviewed under the final judgment notwith-

standing the fact that such judgment makes no reference to

such denial. All interlocutory rulings merged in the final

judgement and are reviewable on appeal therefrom.”); see

also Atchison, T. & S.F. Ry. Co. v. Jackson, 235 F.2d 390,

392 (10th Cir. 1956) (“[F]or purposes of appeal, an interlocu-

tory action from which no direct appeal will lie becomes

merged into the final judgment and is open to review on

appeal from the final judgment”).

[9] Hall has satisfied the statutory requirements of jurisdic-

tion. Fed. R. App. P. 3(c)(1)(B); see also Smith v. Barry, 502

U.S. 244, 247-48 (“Courts will liberally construe the require-

ments of Rule 3.”); Ortberg v. Moody, 961 F.2d 135, 137 (9th

Cir. 1992) (“The purpose of Rule 3 is to ensure that the other

party is informed of the intent to appeal.”); Munoz v. Small

Bus. Admin., 644 F.2d 1361, 1364 (9th Cir. 1981) (holding

that “an appeal from the final judgment draws in question all

earlier non-final orders and all rulings which produced the

judgment” and also that a second judgment calls into question

the propriety of the first, giving the court jurisdiction over

both). We therefore have jurisdiction to review the district

court’s earlier denial of Hall’s motion to amend in connection

with our review of the final judgment now before us.

2. Manifest Injustice

[10] Having satisfied ourselves that we have jurisdiction,

we next ask whether we can and should remand for amend-

11756 HALL v. CITY OF LOS ANGELES

ment of the complaint. Ordinarily, we refrain from consider-

ing an issue that a party has failed to raise. Laboda v.

Calderon, 224 F.3d 972, 985 (9th Cir. 2000). We note, how-

ever, two exceptions to this general practice, both of which

have force here: We may consider an issue sua sponte if fail-

ure to do so would result in manifest injustice, or if the oppos-

ing party will not suffer prejudice. Id.; see also Kohler v.

Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir. 2001); United

States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).

[11] The extraordinary circumstances here convince us that

we must remand this matter for amendment of the complaint

in order to prevent a woefully unjust result. A jury convicted

Hall of murder, a crime he did not commit, based only on his

confession and falsified documents manufactured by a jail-

house informant. Hall served nineteen years in prison. Detec-

tives interrogated an eighteen-year-old Hall for up to six

hours, with no Miranda advisement. He was handcuffed and

denied food. When Hall asked for an attorney, Arneson asked

why Hall needed an attorney if he did not commit the crime.

Arneson also told Hall that only guilty people who were try-

ing to hide something needed attorneys. Dufort, the detective

Hall had grown to see as a trusted friend and father figure,

cautioned Hall that murder charges would lead to a convic-

tion, which would land Hall in prison with Ace Capone and

that Capone would kill him. Crocker then added that Hall

would find himself in serious danger if he ended up in state

prison because the Bloods would want revenge for his testi-

mony in the 54th Street case, and the Crips would want

revenge for Hall driving Capone during the 54th Street shoot-

ing. Hall—weary, hungry and terrified for his life and safety

—finally confessed to the crime with “facts” that Arneson

spoon-fed him. Hall initialed and signed the statement, but he

never read it. The police interrogated Hall, handcuffed, for

somewhere between 17 and 19 hours that day.

[12] Certainly, on these facts, Hall’s § 1983 counsel should

have pled a Fifth Amendment coerced confession claim in the

HALL v. CITY OF LOS ANGELES 11757

initial complaint. That error turned out to be unfortunate and,

without remand for amendment of the complaint, would prove

dire to Hall’s case. But we cannot escape the fact that justice

eluded Hall during his highly suspect, and constitutionally

questionable, interrogation. Justice eluded Hall when he suf-

fered a conviction based on that confession and the patently

false inculpatory evidence created by a jailhouse informant.

Justice eluded Hall when he served nineteen years in state

prison for a crime he did not commit. And justice will elude

Hall yet again without the opportunity to amend his complaint

and let a jury decide whether he deserves monetary compen-

sation for his unlawful incarceration. If ever there were an

exceptional case where we should exercise our discretionary

power to avoid manifest injustice, we believe this must be it.

See United States v. Atkinson, 297 U.S. 157, 160 (1936) (“In

exceptional circumstances, especially in criminal cases, appel-

late courts, in the public interest, may, of their own motion,

notice errors to which no exception has been taken, if the

errors are obvious, or if they otherwise seriously affect the

fairness, integrity, or public reputation of judicial proceed-

ings.”); cf. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.

1992) (finding manifest injustice despite defendant raising

claim only in reply brief).

3. Prejudice to Appellees

[13] We find Appellees’ contention that they had no fair

notice of Hall’s Fifth Amendment claim curious, if not disin-

genuous. While Hall did not identify an explicit Fifth Amend-

ment claim, his 2005 complaint alleged facts that form the

basis of a classic coerced confession claim. Hall claimed that

the detectives (1) did not give him a Miranda admonition any

of the times they interviewed or interrogated him, (2) told

Hall he would be murdered in prison if he did not confess and

(3) subjected him to combined interrogations totaling 17 to 19

hours. Moreover, we provided the parties the opportunity to

brief this issue. Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir.

2001) (citing United States v. Gamma Tech Indus., Inc., 265

11758 HALL v. CITY OF LOS ANGELES

F.3d 917, 930 (9th Cir. 2001)). On the record before us, we

cannot conclude that amendment of the complaint would

cause Appellees undue prejudice.

4. Denial of Request to Amend

We now consider whether the district court erred in deny-

ing Hall’s motion to amend. We review the denial of a motion

to amend for abuse of discretion. Jackson v. Bank of Haw.,

902 F.2d 1385, 1387 (9th Cir. 1990).

Two years after filing his complaint, Hall sought leave to

amend his complaint to add an explicit Fifth Amendment

claim. The district court denied this request upon a finding

that Hall failed to meet and confer and that amendment would

prejudice Appellees because of undue delay. District Court

Docket Nos. 85 (citing United States ex rel. Schumer v.

Hughes Aircraft Co., 63 F.3d 1512, 1527 (9th Cir. 1995)

(affirming denial of motion to amend where plaintiff waited

three years to amend, amendment would have required addi-

tional discovery and plaintiff had amended the complaint once

before)). The district court abused its discretion in prohibiting

amendment of the complaint.

[14] Federal Rule of Civil Procedure 15(a) provides that a

party may amend its pleading once as a matter of course

within certain time limits, or, in all other instances, with the

court’s leave. Fed. R. Civ. P. 15(a). Because the relevant time

period had elapsed for an amendment as a matter of course,

Hall sought the court’s permission to amend. When a party

requests to amend a pleading, “[t]he court should freely give

leave when justice so requires.” Id.; see also Wyshak v. City

Nat’l Bank, 607 F.2d 824, 826-27 (9th Cir. 1979) (per curiam)

(finding no abuse of discretion where district court allowed

amendment of answer to assert statute of limitations because

the defense existed at the time plaintiff sued). “[T]his mandate

is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962).

“If the underlying facts or circumstances relied upon by a

HALL v. CITY OF LOS ANGELES 11759

plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claim on the merits.” Id.

Moreover, “[i]n the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on

the part of the movant, . . . undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of

amendment, etc.—the leave sought should, as the rules

require, be ‘freely given.’ ” Id.

[15] Here, the district court’s reliance on Hall’s failure to

meet and confer falls outside the supportable bases for deny-

ing a motion to amend. The district court also found that

amendment would prejudice Appellees because Hall waited

two years from the filing of his initial complaint to add his

Fifth Amendment claim. As we have noted, however, the

complaint gave Appellees fair notice of the facts supporting

the coerced interrogation claim. Moreover, it is questionable

whether amendment would have required additional discov-

ery, given the extensive discovery the parties had conducted

already.

An ordinary case in which counsel neglected to allege an

obvious claim in a pleading would not warrant sua sponte

consideration of an issue, nor would we feel compelled to find

an abuse of discretion. But we are not called to consider an

ordinary case, but, rather, an extraordinary one involving an

unfortunate confluence of events—events not fit for a just and

fair society. We are reminded today that as jurists we hold the

power to protect individuals against arbitrary government

action and abuse of power. See, e.g., Daniels v. Williams, 474

U.S. 327, 331 (1986). In remanding this matter to the district

court, we intend to safeguard the fairness, integrity and repu-

tation of our courts, by making justice possible for Hall. See

Atkinson, 297 U.S. at 160.

IV. Conclusion

[16] We affirm the grant of summary judgment to Appel-

lees on Hall’s fabrication of evidence claim. We reverse the

11760 HALL v. CITY OF LOS ANGELES

denial of Hall’s motion for leave to amend his complaint and

remand to the district court to allow Hall to allege an explicit

coercive interrogation claim pursuant to the Fifth Amend-

ment.

AFFIRMED in part, REVERSED in part,

REMANDED. Each side shall bear its own costs.

IKUTA, Circuit Judge, dissenting:

Not content with our task, prescribed by Article III, of

deciding the controversies raised by the parties, the majority

has decided to ask and answer its own legal questions instead.

At oral argument, the majority sua sponte raised the possibil-

ity that instead of addressing Harold Hall’s sole argument on

appeal that the district court had erred in rejecting his Four-

teenth Amendment claim, we could revive and address an

unrelated and unappealed procedural issue: whether, over five

years earlier, the district court had erred in denying Hall’s

motion to amend his complaint to add a new Fifth Amend-

ment claim.

Today, the majority takes itself up on that offer. It begins

by creating a novel legal argument for Hall and then, having

concluded that its own argument has merit, it proceeds to

resolve the case on those grounds. Maj. Op. at III.B. In doing

so, the majority disregards the most basic principles of judi-

cial restraint, erroneously overturns a district court decision

that we have no jurisdiction to review, and gives Hall relief

that he never asked us to give. While the majority claims that

these imprudent steps are necessary to “safeguard the fairness,

integrity and reputation of our courts,” maj. op. at 11759, I

fear that they will have the exact opposite effect. I dissent.

I

Because the majority’s impassioned retelling of Hall’s

story is economical with the procedural facts relevant to this

appeal, I will begin by outlining them here.

HALL v. CITY OF LOS ANGELES 11761

A

In 2003, a split panel of this court granted Hall’s habeas

petition on the grounds that “false and material evidence was

admitted at Hall’s trial in violation of his due process rights,”

and the state court’s contrary ruling was an unreasonable

determination of the facts. Hall v. Dir. of Corrections, 343

F.3d 976, 985 (9th Cir. 2003) (Hall I). Hall I rejected Hall’s

other constitutional claims, including his Fifth Amendment

claims for violation of his Miranda rights and right against

self-incrimination, stating “[w]e have examined the record

and find that these claims are without merit.” Id. at 981 n.5.

In March 2005, Hall brought suit for money damages under

42 U.S.C. § 1983 against the City of Los Angeles, the Los

Angeles Police Department, and various police officers

involved in his prosecution. He alleged claims for relief based

on his unlawful arrest in violation of the Fourth Amendment

and the use of false evidence against him at trial in violation

of his Fourteenth Amendment due process rights.

Some two years later, in May 2007, after the close of dis-

covery and less than five months before the scheduled trial,

Hall moved to amend his complaint. The proposed amended

complaint dropped Hall’s Fourth Amendment claim, which

had become time-barred in light of a recent Supreme Court

case, and added an entirely new claim for violation of his

Fifth Amendment right against self-incrimination.1

1

Hall’s motion to amend asserts that “plaintiff is adding no new claim”

to the amended complaint, but this assertion is belied by the amended

complaint itself (attached to the motion), which provides a redlined com-

parison with the original complaint. For example, paragraph 37 of the

amended complaint begins:

Plaintiff has a right to be free from unreasonable seizures being

a witness against himself, as protected by the Fourth Fifth

Amendment. . . .”

11762 HALL v. CITY OF LOS ANGELES

The City objected to the proposed amendment. First, the

City asserted that, contrary to his declaration, Hall had failed

to follow local rules requiring the parties to meet and confer

prior to the filing of any motion to amend. See C.D. Cal.

Local Rule 7-3. Second, according to the City, Hall had

unduly delayed his attempt to amend the complaint: he knew

all the facts underlying his Fifth Amendment claim when he

originally filed suit in March 2005, yet he unreasonably

waited over two years to add that new claim. Further, the City

contended, this amendment would be prejudicial because it

would require the City to prepare for an entirely new constitu-

tional claim with only months to go before trial and without

the benefit of additional discovery. The district court agreed,

holding that Hall had failed to comply with the requirement

to meet and confer, and also that his undue delay in amending

his complaint would be prejudicial to the City. Accordingly,

on June 19, 2007, it denied Hall’s motion for leave to amend

his complaint.

The City then filed a motion for summary judgment on

Hall’s one remaining claim: that the City’s police officers vio-

lated his Fourteenth Amendment due process rights by using

interrogation techniques so coercive that they knew the inter-

rogation would generate false evidence. The district court

granted summary judgment to the City on this claim, partly

because it concluded that Hall I’s determination that Hall’s

self-incrimination claim was “without merit,” Hall I, 343 F.3d

at 981 n.5, had a preclusive effect on Hall’s Fourteenth

Amendment false evidence claim, which also focused on the

police officers’ allegedly coercive interrogation tactics.

In December 2007, Hall filed a notice of appeal stating his

intent to appeal the district court’s order granting the City’s

summary judgment motion. Neither the notice of appeal nor

Hall’s appellate briefing made any mention of the district

court’s June 2007 denial of his motion to amend his com-

plaint. Instead, Hall challenged the district court’s determina-

tion that Hall I precluded his Fourteenth Amendment claim,

HALL v. CITY OF LOS ANGELES 11763

and reiterated his argument that his Fourteenth Amendment

right to be free from prosecution based on false evidence had

been violated. In July 2009, a different panel of this court

reversed the district court’s conclusion that Hall I had a pre-

clusive effect, and remanded for further consideration of

Hall’s Fourteenth Amendment false evidence claim. Hall v.

City of Los Angeles, 2009 WL 2020851 (9th Cir. 2009) (Hall

II).

On remand, the district court again granted summary judg-

ment to the City. First, the court held that Hall’s claim was

not cognizable under the Fourteenth Amendment, but should

have been raised as a violation of his Fifth Amendment right

against self-incrimination. Second, the district court ruled that

even if Hall’s claim was cognizable under the Fourteenth

Amendment, there was no genuine issue of material fact that

the City’s police officers had generated false evidence. Hall

filed a notice of appeal challenging the district court’s order

granting the City summary judgment.

B

This second appeal is now before us. As in his first appeal,

Hall advances no argument that the district court erred in June

2007 when it denied his motion to add a Fifth Amendment

claim to his complaint. In fact, the gist of Hall’s argument is

that the district court erred in holding that his claim was cog-

nizable only under the Fifth Amendment for the simple reason

that he was not bringing a Fifth Amendment claim. Rather, he

was bringing a broader Fourteenth Amendment claim that the

officers “fabricated the evidence (including but not limited to

the false confession)” that was used to prosecute him. The

City’s briefing responds to Hall’s Fourteenth Amendment

arguments.

Thus, on appeal, we should address the question Hall actu-

ally raised: whether his Fourteenth Amendment false evi-

dence claim survives summary judgment. Hall relies on our

11764 HALL v. CITY OF LOS ANGELES

en banc decision in Devereaux v. Abbey, 263 F.3d 1070 (9th

Cir. 2001) (en banc), to argue that his due process rights were

violated because the City’s police officers used “investigative

techniques that were so coercive and abusive that they knew

or should have known that those techniques would yield false

information.” Id. at 1076. But, as the majority explains, we

have never applied Devereaux’s prohibition against the fabri-

cation of evidence to adjudicate claims involving the coercive

interrogation of a suspect. Maj. Op. at 11752. Whereas

Devereaux relies on the “scarce and open-ended” guideposts

of substantive due process, Collins v. City of Harker Heights,

Tex., 503 U.S. 115, 125 (1992), the “explicit textual source”

of the Fifth Amendment protects a suspect from coercive

interrogation, Albright v. Oliver, 510 U.S. 266, 273 (1994).

Accordingly, Hall’s claim that the City used his coerced con-

fession to convict him is cognizable under the Fifth Amend-

ment, not the Fourteenth Amendment. See Albright, 510 U.S.

at 273. Because Hall has not brought a Fifth Amendment

claim, we must affirm the district court’s grant of summary

judgment to the City on Hall’s Fourteenth Amendment claim.2

The majority agrees with this Fourteenth Amendment analysis

and thus, it correctly affirms the district court’s grant of sum-

mary judgment to the City on Hall’s Fourteenth Amendment

claims. That ruling should end this case. It is all that the par-

ties asked us to decide.

II

But that is not all the majority wants to decide. After reject-

ing Hall’s argument as a failed “repackaging [of] a Fifth

Amendment coerced interrogation claim as one for deliberate

fabrication of evidence arising under the Fourteenth Amend-

ment,” maj. op. at 11751, the majority then proceeds sua

sponte to offer Hall a different, unasked for, package of relief:

a second chance to add a Fifth Amendment claim to his com-

2

For similar reasons, we must also affirm the district court’s grant of

qualified immunity to the City’s police officers.

HALL v. CITY OF LOS ANGELES 11765

plaint, five years, two summary judgments, and two notices

of appeal after the fact. To do so, the majority posits an appeal

(one not actually brought by Hall) from the district court’s

June 2007 order denying Hall’s motion to amend his com-

plaint; asserts appellate jurisdiction over this theoretical

appeal; posits an argument (one not actually raised by Hall)

for why the district court abused its discretion by denying

Hall’s motion to amend his complaint; and relies on that argu-

ment to conclude that the district court did abuse its discre-

tion. This enterprise has no basis in precedent and disregards

many of our long-standing jurisdictional and procedural limi-

tations.

A

The majority begins by skipping over the most important

limitation on a federal court: our jurisdiction. Here, we are

simply without authority to review this “appeal” of the district

court’s long-forgotten denial of Hall’s motion to amend. It is

a basic requirement of appellate jurisdiction that “[t]he notice

of appeal must . . . designate the judgment, order or part

thereof being appealed from.” Fed. R. App. Proc. 3(c);3 see

Smith v. Barry, 502 U.S. 244, 248 (1992) (“[N]oncompliance

[with Rule 3] is fatal to an appeal.”); Torres v. Oakland Scav-

enger Co., 487 U.S. 312, 317 n.3 (1988) (refusing to waive

a noncompliant notice of appeal because “a litigant’s failure

to clear a jurisdictional hurdle can never be ‘harmless’ or

waived by a court.”). Hall’s notice of appeal identifies only

3

Rule 3(c)(1) provides that

The notice of appeal must:

(A) specify the party or parties taking the appeal by naming

each one in the caption or body of the notice . . .

(B) designate the judgment, order, or part thereof being

appealed; and

(C) name the court to which the appeal is taken.

Fed. R. App. P. 3(c)(1).

11766 HALL v. CITY OF LOS ANGELES

the second summary judgment; he does not designate the dis-

trict court’s June 2007 denial of leave to amend his complaint

as a subject of appeal, nor does he provide any indication of

an intent to challenge that order in his briefing or argument

to this court. Cf. Shapiro ex rel. Shapiro v. Paradise Valley

Unified School Dist. No. 69, 374 F.3d 857, 863-64 (9th Cir.

2004) (holding that an insufficient notice of appeal was reme-

died by sufficient appellate briefing).

The majority claims it has jurisdiction because “earlier,

non-final orders become reviewable” once a district court

enters a final judgment. Maj. Op. at 11754. While the major-

ity is correct in explaining when an interlocutory order satis-

fies the finality requirements of 28 U.S.C. § 1291, the

majority ignores the separate jurisdictional bar provided by

Rule 3. Even if an interlocutory order becomes sufficiently

final by merging with a later final judgment, the appellant

must still identify the prior order in the notice of appeal or

discuss it in its appellate briefing in order to demonstrate

some intent to appeal it. See Lynn v. Sheet Metal Workers’

Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986). That was not

done here.4 Accordingly, we lack jurisdiction to consider the

district court’s June 2007 order denying Hall leave to amend

his complaint to add a Fifth Amendment claim. See, e.g.,

Johnson v. Smithsonian, Inst., 189 F.3d 180, 185 n.2 (2d Cir.

4

The majority does not just liberally construe Rule 3’s requirements, it

ignores them entirely: the notice of appeal here raises no inference of an

intent to appeal the district court’s June 2007 order. Cf. Munoz v. Small

Bus. Admin., 644 F.2d 1361, 1364 (9th Cir. 1981) (holding that “the rule

is well settled that a mistake in designating the judgment appealed from

should not result in loss of the appeal as long as the intent to appeal from

a specific judgment can be fairly inferred from the notice and the appellee

is not misled by the mistake.”) (emphasis added). But liberally applying

a jurisdictional requirement is not the same as eliminating it, which the

majority has effectively done here. See Smith, 502 U.S. at 248 (“This prin-

ciple of liberal construction does not, however, excuse noncompliance

with [Rule 3].”); Torres, 487 U.S. at 315-16 (“Permitting imperfect but

substantial compliance with a technical requirement is not the same as

waiving the requirement altogether as a jurisdictional threshold.”).

HALL v. CITY OF LOS ANGELES 11767

1999) (dismissing an appeal of an order denying leave to

amend a complaint for lack of compliance with Rule 3(c));

Capital Parks, Inc. v. Southeastern Ad. and Sales Sys., Inc.,

30 F.3d 627, 630 (5th Cir. 1994) (same).

B

Even if we could set aside this jurisdictional issue, the

majority should not have abandoned the long-standing proce-

dural rules we have developed to maintain judicial restraint.

First, it is hornbook law that “[w]e need not and do not con-

sider a new contention that could have been but was not

raised on the prior appeal.” Munoz v. Imperial Cnty., 667 F.2d

811, 817 (9th Cir. 1982); see also Jimenez v. Franklin, 680

F.3d 1096, 1099-1100 (9th Cir. 2012). As described above,

Hall could have challenged the district court’s June 2007

order denying him leave to amend when he appealed that

court’s first summary judgment order to a prior panel of this

court. Because he “failed to do so,” he “cannot relitigate the

issue here.” Jimenez, 680 F.3d at 1100.

Second, it is also well established that “[w]e will not ordi-

narily consider matters on appeal that are not specifically and

distinctly argued in appellant’s opening brief.” United States

v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (internal quotation

marks omitted). The majority concedes that such waiver

occurred here, but it nevertheless considers Hall’s forfeited

argument because the failure to consider it here would result

in a manifest injustice and Hall’s failure to raise the issue

properly did not prejudice the City’s defense. See id.; Maj.

Op. at 11755-57.

Both conclusions are incorrect. As a general matter, we

have reached unbriefed issues to avoid “manifest injustice”

only in criminal or deportation cases, where the deprivation

of rights resulting from a waiver are most severe. All the

cases cited by the majority to support its “manifest injustice”

reasoning are consistent with this pattern. Maj. Op. at

11768 HALL v. CITY OF LOS ANGELES

11756-57. See, e.g., United States v. Atkinson, 297 U.S. 157,

160 (1936) (noting that such “exceptional circumstances”

arise “especially in criminal cases”); Ullah, 976 F.2d at 514

(“[I]t is ‘manifestly unjust’ to reverse the conviction of one

co-defendant but to uphold the conviction of another co-

defendant when the same error affected both defendants.”).

The majority fails to point to a single case holding there was

“manifest injustice” where the only thing at stake was the loss

of civil damages, as is the case here.

The majority also errs in concluding that our consideration

of Hall’s waived argument regarding amending his complaint

would not prejudice the City because it had fair notice of

Hall’s Fifth Amendment claim. Maj. Op. at 11757-58. While

this was certainly true when Hall attempted to amend his

complaint in 2007, the district court denied such an amend-

ment and Hall chose not to appeal that denial. At that point,

it was reasonable for the City to conclude that the Fifth

Amendment claim was gone. Now, five years and two appeals

later, the majority both resurrects and resolves the question

whether the district court abused its discretion in denying

Hall’s motion to amend his complaint. As a result, the City is

on the losing end of an argument it never had a chance to

refute.

C

Even if we overlooked our jurisdictional limits, turned back

the clock, and pretended that Hall had actually appealed the

district court’s denial of leave to amend, the majority is still

wrong in reversing the district court. We have repeatedly held

that a district court does not abuse its discretion in denying a

motion to amend a complaint “where the movant presents no

new facts but only new theories and provides no satisfactory

explanation for his failure to fully develop his contentions

originally.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

1995); Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th

Cir. 1990); Vincent v. Trend W. Technical Corp., 828 F.2d

HALL v. CITY OF LOS ANGELES 11769

563, 570-71 (9th Cir. 1987); Stein v. United Artists Corp., 691

F.2d 885, 898 (9th Cir. 1982). That principle squarely governs

this case. Despite his disingenuous statement that he was “ad-

ding no new claim” to the proposed amended complaint,

Hall’s excerpts from the redline he attached to his motion to

amend show otherwise:

The individual defendants, while acting under color

of law, deprived plaintiff of his civil rights by violat-

ing his right under the Fourth Amendment to be free

from unreasonable seizures and his right under the

Fifth and Fourteenth Amendment to due process of

law in that they seized plaintiff or caused plaintiff to

be seized and imprisoned, for approximately 19

years, without a warrant or probable cause to believe

that he was involved in criminal activity, by

knowingly using false and fabricated evidence upon

which, including confessions extracted in violation

of the Fifth and Fourteenth Amendments, to convict

plaintiff. . . .

“Plaintiff has a right to be free from unreasonable

seizures being a witness against himself, as pro-

tected by the Fourth Fifth Amendment . . . .”

These proposed changes demonstrate that the amended

complaint merely substitutes a “new theory” (under the Fifth

Amendment) for an old one (under the Fourth Amendment).

Given that, in the majority’s view, Hall’s original complaint

gave rise to a “classic [Fifth Amendment] coerced confession

claim,” maj. op. at 11757, Hall has provided no explanation,

much less a “satisfactory” one, for why it took him nearly two

years to make this change. See Allen, 911 F.2d at 374. The

district court’s determinations that Hall had failed to comply

with local rules, that there had been undue delay in amending

the complaint, and that such a delay prejudiced the City’s

defense are not “illogical, implausible, or without support in

inferences that may be drawn from the record.” United States

11770 HALL v. CITY OF LOS ANGELES

v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

Accordingly, the district court did not abuse its discretion by

denying Hall leave to amend.

III

As should be obvious by now, this case is not about apply-

ing the law to answer the questions raised, briefed, and argued

by the parties. Rather, for the majority, this case is about a

“confluence of events [ ] not fit for a just and fair society.”

Maj. Op. at 11759. It is about “protect[ing] individuals against

arbitrary government action and abuse of power.” Maj. Op. at

11759. And above all, it is about “prevent[ing] a woefully

unjust result.” Maj. Op. at 11756. Thus, as the majority tells

us, this is not “an ordinary case” involving a district court’s

grant of summary judgment in a civil action, “but, rather, an

extraordinary one.” Maj. Op. at 11759.

These equitable concerns carry the majority beyond what

the Constitution empowers us to do. Article III gives us the

authority to decide cases and controversies, provided to us

through the “proper adversarial clash” between litigants.

Ingalls Shipbuilding, Inc. v. Dir., Office of Workers’ Compen-

sation Prog., Dep’t of Labor, 519 U.S. 248, 266 (1997). A

fundamental premise of this adversarial system is “that appel-

late courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions

presented and argued by the parties before them.” NASA v.

Nelson, 131 S. Ct. 746, 756 n.10 (2011) (quoting Carducci v.

Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)).

These limitations are imposed on the judiciary to “ensure

that its desire to do good will not tempt it into abandoning its

limited role in our constitutional Government.” Missouri v.

Jenkins, 515 U.S. 70, 136 (1995) (Thomas, J., concurring). By

reaching beyond our jurisdiction and beyond the questions

“presented and argued by the parties before” us, Nelson, 131

S. Ct. at 756 n.10, the majority unwisely turns its back on

HALL v. CITY OF LOS ANGELES 11771

these fundamental principles of judicial restraint and in doing

so, undermines the very principles of fairness and integrity it

purports to advance.

I dissent.