Donald Wige v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD WIGE , No. 10-56515

Plaintiff-Appellant,

D.C. No.

v. 2:09-cv-01369-

MMM-PLA

CITY OF LOS ANGELES; OFFICER

RYAN BELLOWS; LEONARD

MCKENSIE ; OFFICER JASON LEIKAM , OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

September 6, 2012—Pasadena, California

Filed April 16, 2013

Before: Alex Kozinski, Chief Judge, Paul J. Watford

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Watford

2 WIGE V . CITY OF LOS ANGELES

SUMMARY*

Civil Rights

Reversing the district court’s summary judgment and

remanding, the panel held that issue preclusion did not bar a

plaintiff from bringing a 42 U.S.C. § 1983 action for false

arrest, false imprisonment, and malicious prosecution.

The panel held that even though at a state court

preliminary hearing, a magistrate had found probable cause

to believe that plaintiff committed attempted murder, plaintiff

raised a genuine dispute in his § 1983 action as to whether the

lead detective on the case fabricated evidence by falsely

testifying at the hearing that the victim had identified plaintiff

as the shooter. The panel held that the identity-of-issues

requirement for issue preclusion was not met because the

evidence available and known to the detective was different

from the evidence presented to the court at the preliminary

hearing. At the preliminary hearing, the state court

determined only that a reasonable person could have believed

the detective. It did not (and did not have to) decide whether

the detective should be believed. Because that was the issue

that plaintiff sought to litigate in his § 1983 action, he was not

barred by the doctrine of issue preclusion from doing so.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WIGE V . CITY OF LOS ANGELES 3

COUNSEL

James S. Muller (argued), Law Offices of James Muller, and

Chris Ford, Law Office of Chris Ford, Los Angeles,

California, for Plaintiff-Appellant.

Amy Jo Field (argued), Deputy City Attorney, and Carmen A.

Trutanich, City Attorney, Los Angeles, California, for

Defendants-Appellees.

OPINION

WATFORD, Circuit Judge:

The State of California charged the plaintiff in this case,

Donald Wige, with attempted murder. A jury eventually

acquitted Wige, but not before he spent ten months in jail

awaiting trial. In this action, brought under 42 U.S.C. § 1983,

Wige sues several police officers and their employer, the City

of Los Angeles, for false arrest, false imprisonment, and

malicious prosecution.

The question before us is whether Wige’s action is barred

by the doctrine of issue preclusion. At Wige’s preliminary

hearing in state court, the magistrate judge found probable

cause to believe Wige had committed attempted murder. If

that finding is entitled to preclusive effect, Wige’s § 1983

claims are barred because each claim requires him to prove

that defendants lacked probable cause to arrest and prosecute

him for that offense. See Awabdy v. City of Adelanto,

368 F.3d 1062, 1066 (9th Cir. 2004); Cabrera v. City of

Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per

curiam).

4 WIGE V . CITY OF LOS ANGELES

We begin then with the events at Wige’s preliminary

hearing. No one disputed that the victim of the charged

offense, Carlos Torres, had been shot and struck in the leg by

an assailant firing from a moving car. The only issue was

whether probable cause existed to believe Wige was the

shooter. The State presented no physical evidence tying

Wige to the shooting. But the lead detective on the case,

Officer Ryan Bellows, testified that he and his partner

interviewed Torres shortly after the shooting; that he showed

Torres a photographic lineup which included Wige; and that

Torres circled Wige’s photograph to identify him as the

shooter.

Torres, however, told a different story. He testified that

he had never seen Wige before and that when the officers

showed him the photographic lineup, he told them the shooter

was not among those included. Torres further testified that he

circled Wige’s photograph and wrote a statement purporting

to identify Wige as the shooter only because the officers

pressured him into doing so after several hours of

interrogation. Officer Bellows denied having exerted any

pressure on Torres and suggested that Torres’s newfound

reluctance to finger Wige was the product of a recent death

threat from one of Wige’s fellow gang members.

At the conclusion of the preliminary hearing, Wige

moved to dismiss the attempted murder charge for lack of

probable cause. The state court rejected Wige’s arguments

and bound him over for trial, offering the following

explanation: “There are issues in the case. I think most of

the issues you addressed are really for the jury to decide; not

the Court at the preliminary hearing.” A jury subsequently

acquitted Wige of the attempted murder charge after hearing

testimony from Officer Bellows and from Torres, whose trial

WIGE V . CITY OF LOS ANGELES 5

testimony largely tracked what he said at the preliminary

hearing.

Now back to this action. The district court granted

summary judgment for defendants on the ground that the state

court’s probable cause finding is entitled to preclusive effect

and bars Wige from relitigating the issue of probable cause.

The court accepted defendants’ argument that, by finding

probable cause in the face of Officer Bellows’s and Torres’s

conflicting testimony, the state court necessarily found

Officer Bellows credible and Torres not credible. Neither the

district court nor defendants ever identified where in the

preliminary hearing record the state court purported to make

this credibility determination.

To assess whether the district court’s preclusion ruling is

correct, we look to state law. Federal courts must give

“preclusive effect to state-court judgments whenever the

courts of the State from which the judgments emerged would

do so.” Allen v. McCurry, 449 U.S. 90, 96 (1980); see

28 U.S.C. § 1738. In California, issue preclusion applies

when five requirements are met: (1) the issue sought to be

relitigated must be identical to the issue decided in the earlier

action; (2) the issue must have been actually litigated and

(3) necessarily decided in the earlier action; (4) the earlier

decision must be final and made on the merits; and (5) the

party against whom issue preclusion is asserted must have

been a party to the earlier action or in privity with such a

party. Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal.

1990). As a general rule, each of these requirements will be

met when courts are asked to give preclusive effect to

preliminary hearing probable cause findings in subsequent

civil actions for false arrest and malicious prosecution.

6 WIGE V . CITY OF LOS ANGELES

McCutchen v. City of Montclair, 87 Cal. Rptr. 2d 95, 99–101

(Ct. App. 1999).1

In particular, the identity-of-issues requirement will

generally be satisfied because in most cases the issue resolved

at the preliminary hearing is identical to the issue that must be

resolved in a false arrest or malicious prosecution

action—namely, whether the evidence supports a finding of

probable cause. “The quantum of evidence required to

support a warrantless arrest is the same as the quantum of

evidence required to hold the defendant to stand trial.” Id. at

100. The test in both instances is whether the available

evidence would lead a reasonable person to harbor a strong

suspicion of the accused’s guilt. See People v. Campa,

686 P.2d 634, 638 (Cal. 1984) (arrest); People v. Uhlemann,

511 P.2d 609, 612 (Cal. 1973) (preliminary hearing). Thus,

so long as the evidence known to the arresting officers is not

materially different from the evidence presented at the

preliminary hearing, “a finding of sufficiency of the evidence

to require the defendant to stand trial is a finding of probable

cause to arrest the defendant.” McCutchen, 87 Cal. Rptr. 2d

at 100; see Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir.

1994).

If the evidence known to the arresting officers is

materially different from the evidence presented at the

preliminary hearing, however, the identity-of-issues

1

In so holding, McCutchen relied on our decision in Haupt v. Dillard,

17 F.3d 285, 289 (9th Cir. 1994), which construed Nevada law to the same

effect. A more recent California Court of Appeal decision, Schmidlin v.

City of Palo Alto, 69 Cal. Rptr. 3d 365, 395–96 (Ct. App. 2008), has

questioned the soundness of McCutchen. Given our resolution of this

case, we need not resolve any conflict between McCutchen and Schmidlin.

WIGE V . CITY OF LOS ANGELES 7

requirement will not be met. That fact is reflected in two

exceptions California courts have recognized to the general

rule according preclusive effect to probable cause findings.

First, issue preclusion does not apply in false arrest actions

when additional evidence not available to the officers at the

time of arrest is presented at the preliminary hearing.

McCutchen, 87 Cal. Rptr. 2d at 100. A magistrate judge’s

finding of probable cause based on the testimony of two

witnesses, for example, obviously does not resolve whether

the officers had probable cause to arrest if only one witness

was available and known to them at the time of arrest. See id.

at 101; Haupt, 17 F.3d at 289.2

Second, issue preclusion should be denied “where the

plaintiff alleges that the arresting officer lied or fabricated

evidence presented at the preliminary hearing.” McCutchen,

87 Cal. Rptr. 2d at 101; see also Awabdy, 368 F.3d at 1068.

In that circumstance, too, the identity-of-issues requirement

will not be met because the evidence available and known to

the arresting officers is different from the evidence presented

to the court. That the court found probable cause based on

the set of facts presented at the preliminary hearing obviously

does not resolve whether the officers had probable cause

based on the true set of facts known to them. McCutchen’s

fabricated evidence exception allows plaintiffs who can

establish that an officer lied or fabricated evidence to

relitigate the issue of probable cause with the falsified

evidence removed from the equation or, in cases involving

2

W ige’s case does not fall within this exception. The evidence available

at the time of W ige’s arrest was no different from the evidence presented

at his preliminary hearing. At both junctures, the State grounded probable

cause almost entirely on Torres’s purported identification of W ige as the

shooter.

8 WIGE V . CITY OF LOS ANGELES

intentional concealment of exculpatory evidence, with the

undisclosed evidence added back into the equation. See

Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (similar

analysis in qualified immunity context).

In our view, Wige’s case potentially falls within this latter

exception, and the district court therefore erred in granting

summary judgment to defendants on issue preclusion

grounds. Wige has raised a “genuine dispute,” Fed. R. Civ.

P. 56(a), as to whether Officer Bellows fabricated evidence

at the preliminary hearing by falsely testifying that Torres had

identified Wige as the shooter. Wige does not rely on mere

speculation that Officer Bellows fabricated evidence; he

relies on testimony under oath from Torres himself that the

officers pressured him into making a false identification.

That alleged fabrication plainly meets the materiality

threshold for defeating summary judgment on the merits: All

agree that a valid identification by Torres would support a

finding of probable cause, but that without his identification

probable cause would be absent.

Whether Officer Bellows fabricated evidence at the

preliminary hearing is thus the key (and perhaps dispositive)

factual issue to be resolved in this action. Defendants

contend this issue was actually litigated and resolved against

Wige at the preliminary hearing as well, such that he should

be precluded from relitigating it here. According to

defendants, the state court must have determined that Officer

Bellows was telling the truth because otherwise it could not

have found probable cause to bind Wige over for trial.

Defendants are correct that in some circumstances a

probable cause finding necessarily entails a rejection of

challenges raised to the veracity of the arresting officer. See,

WIGE V . CITY OF LOS ANGELES 9

e.g., Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir.

1984). But in this case the state court never purported to find

either that Officer Bellows’s testimony was credible or that

Torres’s testimony was not. After hearing Wige’s arguments

against probable cause, the state court merely observed:

“There are issues in the case. I think most of the issues you

addressed are really for the jury to decide; not the Court at the

preliminary hearing.” Having heard the conflicting evidence,

the court did not decide whether Officer Bellows or Torres

was telling the truth; it decided only that a reasonable jury

could believe either one.

That was all the state court needed to decide in order to

find probable cause. At the preliminary hearing, a court’s

role “is limited to determining whether a reasonable person

could harbor a strong suspicion of the defendant’s guilt, i.e.,

whether such a person could reasonably weigh the evidence,

resolve conflicts, and give or withhold credence to particular

witnesses in favor of harboring such a suspicion.” Cooley v.

Superior Court, 57 P.3d 654, 668 (Cal. 2002) (second

emphasis added). The state court therefore determined only

that a reasonable person could have believed Officer Bellows.

It did not (and did not have to) decide whether Officer

Bellows should be believed. That is the issue Wige seeks to

litigate in this action, and he is not barred by the doctrine of

issue preclusion from doing so.

REVERSED and REMANDED.