Thomas Goldstein v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS LEE GOLDSTEIN, No. 10-56787

Plaintiff-Appellant,

D.C. No.

v. 2:04-cv-09692-

AHM-E

CITY OF LONG BEACH; JOHN HENRY

MILLER, in his individual and

official capacity; WILLIAM OPINION

COLLETTE, in his individual and

official capacity; LOGAN WREN, in

his individual and official capacity;

WILLIAM MACLYMAN, in his

individual and official capacity,

Defendants,

and

COUNTY OF LOS ANGELES,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

November 8, 2012—Pasadena, California

Filed May 8, 2013

2 GOLDSTEIN V. CITY OF LONG BEACH

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit

Judges, and Gloria M. Navarro, District Judge.*

Opinion by Judge Thomas;

Concurrence by Judge Reinhardt

SUMMARY**

Civil Rights

The panel reversed the district court’s grant of a motion

for judgment on the pleadings, entered following a decision

by the United States Supreme Court, and held that the County

of Los Angeles could be liable pursuant to 42 U.S.C. § 1983

because the district attorney acted as final policymaker for the

County when adopting and implementing internal polices and

procedures related to the use of jailhouse informants.

Plaintiff spent 24 years in prison after being convicted for

murder based largely upon the perjured testimony of

unreliable jailhouse informant Edward Fink. He was released

after the district court determined that Fink had lied and that

it might have made a difference if the prosecution had told

plaintiff’s lawyer that Fink had received prior rewards in

return for favorable testimony. Subsequently, in plaintiff’s

§ 1983 case, the Supreme Court held that the Los Angeles

*

The Honorable Gloria M. Navarro, District Judge for the U.S. District

Court for the District of Nevada, sitting by designation.

**

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

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

GOLDSTEIN V. CITY OF LONG BEACH 3

County district attorney and chief deputy district attorney

were absolutely immune from plaintiff’s claims that the

prosecution failed to disclose impeachment material due to a

failure to properly train prosecutors, failed to properly

supervise prosecutors, and failed to establish an information

system containing potential impeachment material about

informants. Van de Kamp v Goldstein, 555 U.S. 335, 339

(2009). On remand, the district court, among other things,

granted the County’s motion for judgment on the pleadings.

Reversing the district court, the panel held that the Los

Angeles County District Attorney represents the County

when establishing administrative policies and training related

to the general operation of the district attorney’s office,

including the establishment of an index containing

information regarding the use of jailhouse informants.

Therefore, a cause of action may lie against the County under

§ 1983.

Judge Reinhardt concurred with the opinion and wrote

separately to emphasize the problems related to the

eponymous and notorious Edward Fink and to explain why he

found unpersuasive the California Supreme Court’s reasoning

in Pitts v. County of Kern, 949 P.2d 920, 923 (Cal. 1998)

(holding that the district attorney represents the state, not the

county, when preparing to prosecute and when prosecuting

crimes, and when establishing policy and training employees

in these areas).

4 GOLDSTEIN V. CITY OF LONG BEACH

COUNSEL

Barrett S. Litt and Lindsay B. Battles, Litt, Estuar & Kitson,

LLP, Los Angeles, California, for Plaintiff-Appellant.

Tomas A. Guterres and Catherine M. Mathers, Collins

Collins Muir + Stewart LLP, South Pasadena, California;

Timothy T. Coates and Cynthia E. Tobisman, Greines,

Martin, Stein & Richland LLP, Los Angeles, California, for

Defendant-Appellee.

OPINION

THOMAS, Circuit Judge:

We consider in this case whether a district attorney acts

as a local or a state official when establishing policy and

training related to the use of jailhouse informants. We find

that, as to the policies at issue here, the district attorney was

acting as a final policymaker for the County of Los Angeles.

We thus reverse the district court’s grant of the motion for

judgment on the pleadings and remand the case.1

I

Thomas Goldstein spent 24 years in prison after being

convicted for murder based largely upon the perjured

testimony of an unreliable jailhouse informant, the

aptronymic Edward Fink. Van de Kamp v Goldstein,

555 U.S. 335, 339 (2009); see also Thompson v. Calderon,

1

Appellant’s motion for judicial notice is GRANTED.

GOLDSTEIN V. CITY OF LONG BEACH 5

120 F.3d 1045, 1053-1054 (9th Cir. 1997) (describing Fink as

a “perennial informant,” and describing his exploits in some

detail), rev’d, 523 U.S. 538 (1998).

Fink was a heroin addict and convicted felon who had

previously received reduced sentences by testifying in other

cases and received a reduced sentence in exchange for his

testimony against Goldstein. Goldstein v. Superior Court,

195 P.3d 588, 590 (Cal. 2008). Some prosecutors in the Los

Angeles County District Attorney’s office allegedly knew

about Fink’s history, but failed to inform the prosecutors

trying Goldstein’s case or Goldstein’s counsel that Fink had

testified before or that he received a benefit for testifying

against Goldstein, and Fink lied on the stand when he was

asked about previous assistance given or benefits received.

Van de Kamp, 555 U.S. at 339.

Goldstein was convicted almost solely on the basis of

Fink’s testimony. The California Supreme Court explained

the evidence against Goldstein:

In 1979 Goldstein was an engineering student

and Marine Corps veteran with no criminal

history. He became a murder suspect after an

eyewitness to an unrelated shooting saw the

gunman enter Goldstein’s apartment building.

No witness or forensic evidence connected

Goldstein with the murder victim, but Long

Beach police detectives showed Goldstein’s

photograph, among others, to Loran

Campbell, an eyewitness to the homicide.

Campbell did not recognize anyone in the

photo lineup, and Goldstein did not match

Campbell’s description of the suspect.

6 GOLDSTEIN V. CITY OF LONG BEACH

However, a detective asked if Goldstein could

have been the person Campbell saw running

from the scene. Campbell said it was

possible, though he was not certain.

Goldstein was arrested and placed in a jail cell

with Edward Floyd Fink, a heroin addict and

convicted felon. At Goldstein’s trial, Fink

testified that Goldstein said he was in jail

because he shot a man in a dispute over

money.

Goldstein v. Superior Court, 195 P.3d 588, 590 (Cal. 2008).

Campbell later recanted his identification of Goldstein,

leaving Fink’s testimony as the basis for the conviction. Id.

In 1998, Goldstein filed a habeas petition in the Central

District of California. Van de Kamp, 555 U.S. at 339. At an

evidentiary hearing, the district court agreed that Fink had

lied and that it might have made a difference “if the

prosecution had told Goldstein’s lawyer that Fink had

received prior rewards in return for favorable testimony[.]”

Id. at 339. The court ordered the state to grant Goldstein a

new trial or release him, and the Court of Appeals affirmed.

Id. The state decided to release Goldstein, who had already

served 24 years of his sentence. Id.

Goldstein then filed this action under 42 U.S.C. § 1983.

Id. at 340. As relevant here, Goldstein claims that the Los

Angeles County District Attorney’s Office failed to create

any system for the Deputy District Attorneys handling

criminal cases to access information pertaining to the benefits

provided to jailhouse informants and other impeachment

information, and failed to train Deputy District Attorneys to

GOLDSTEIN V. CITY OF LONG BEACH 7

disseminate this information. Goldstein explains that the

district attorney’s office was on notice that jailhouse

informants were falsely testifying and considered the creation

of a system to track benefits provided jailhouse informants

and other impeachment information, but failed to create any

system.

In 2009, the United States Supreme Court addressed

whether the Los Angeles County district attorney and chief

deputy district attorney had absolute immunity from suit for

Goldstein’s claims. While the Supreme Court “agree[d] with

Goldstein that, in making these claims, he attack[ed] the

office’s administrative procedures,” it concluded that “[t]hose

claims focus upon a certain kind of administrative

obligation—a kind that itself is directly connected with the

conduct of a trial.” Van de Kamp, 555 U.S. at 344.

Therefore, the Court held that the Los Angeles County district

attorney and chief deputy district attorney were absolutely

immune from Goldstein’s claims that the prosecution failed

to disclose impeachment material due to a failure to properly

train prosecutors, failed to properly supervise prosecutors,

and failed to establish an information system containing

potential impeachment material about informants. Id. at 339.

On remand, the district court entered judgment in favor of

Los Angeles County district attorney John Van de Kamp and

chief deputy district attorney Curt Livesay.2 As to the County

of Los Angeles’ motion for judgment on the pleadings, the

district court explained that this Court has not had occasion

2

The district court had also dismissed with prejudice claims against

Long Beach, California defendants the City of Long Beach, John Henry

Miller, William Collette, and William MacLyman based on a settlement

between those parties and Goldstein.

8 GOLDSTEIN V. CITY OF LONG BEACH

to address the claims at issue here, but “reluctantly

concluded” that the district attorney acts on behalf of the

state, rather than the county, in setting policy related to

jailhouse informants “in light of Weiner [v. San Diego

County, 210 F.3d 1025 (9th Cir. 2000)] and the two decisions

of [the Northern District of California] construing it.”

Therefore, the district court granted the County of Los

Angeles’ motion for judgment on the pleadings.

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

we review an order granting a motion for judgment on the

pleadings de novo. Harris v. Cnty. of Orange, 682 F.3d 1126,

1131 (9th Cir. 2012). For purposes of our review, “[a]ll

material allegations in a complaint must be taken as true and

viewed in the light most favorable to the plaintiff.” Geraci v.

Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003).

II

“Pursuant to 42 U.S.C. § 1983, a local government may

be liable for constitutional torts committed by its officials

according to municipal policy, practice, or custom.” Weiner

v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91

(1978)). “To hold a local government liable for an official’s

conduct, a plaintiff must first establish that the official (1) had

final policymaking authority concerning the action . . . at

issue and (2) was the policymaker for the local governing

body for the purposes of the particular act.” Id. at 1028

(citing McMillian v. Monroe Cnty., 520 U.S. 781, 785

(1997)). States and state officials acting in their official

capacities cannot be sued for damages under Section 1983.

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

GOLDSTEIN V. CITY OF LONG BEACH 9

see Ceballos v. Garcetti, 361 F.3d 1168, 1183 n.11 (9th Cir.

2004).

Here, all parties agree that the district attorney is the

relevant policymaker. Thus, the viability of Goldstein’s

claim turns on whether the Los Angeles District Attorney

acted here as a policymaker for the state or for the county.

This determination is made on a function-by-function

approach by analyzing under state law the organizational

structure and control over the district attorney. See

McMillian v. Monroe Cnty., 520 U.S. 781, 785–86 (1997).

A

In McMillian, the Supreme Court first set out the

procedure to determine whether a policymaker acts on behalf

of the state or local government. The case involved the

sheriff of Monroe County, Alabama, and the Court sought to

determine whether he acted as a state or local official when

intimidating a witness into making false statements and

suppressing exculpatory evidence. 520 U.S. at 784. The

Court was clear that the inquiry is not undertaken in a

“categorical, ‘all or nothing’ manner,” but rather that the

“cases on the liability of local governments under § 1983

instruct us to ask whether governmental officials are final

policymakers for the local government in a particular area, or

on a particular issue.” Id. at 785 (citations omitted).

The Court explained that the “inquiry is dependent on an

analysis of state law.” Id. at 786. It looked first to the

Alabama Constitution, and concluded that “the constitutional

provisions concerning sheriffs, the historical development of

those provisions, and the interpretation given them by the

Alabama Supreme Court strongly support Monroe County’s

10 GOLDSTEIN V. CITY OF LONG BEACH

contention that sheriffs represent the State, at least for some

purposes.” Id. at 787. Alabama had taken specific steps both

in its Constitution and statutes to increase state control over

sheriffs and move the authority to impeach sheriffs “from the

county courts to the State Supreme Court, because of the

failure of county courts to punish officers for neglect of

duty.” Id. at 788 (citation and alterations omitted).

When looking to Alabama’s statutes, the Supreme Court

explained that sheriffs must “attend upon” state courts in the

county, “obey the lawful orders and directions” of state

courts, and “execute and return the process and orders of any

state court, even those outside his county.” Id. at 789

(internal quotation marks and citation omitted). “[T]he

presiding circuit judge exercise[s] a general supervision over

the county sheriffs in his circuit, just as if the sheriffs are

normal court [i.e., state] employees.” Id. at 790 (alterations

in original) (internal quotation marks and citation omitted).

“[M]ost importantly,” the Court explained, “sheriffs are given

complete authority to enforce the state criminal law in their

counties” and must report evidence of crimes to the district

attorney (who is, in Alabama, a state official), while the

counties have no powers of law enforcement. Id. The

governor and attorney general can “direct the sheriff to

investigate any alleged violation of law in their counties,” and

the sheriff must “promptly” complete the investigation and

write a report to the state official. Id. at 791 (internal

quotation marks and citations omitted). Finally, the Court

noted that “the salaries of all sheriffs are set by the state

legislature, not by the county commissions.” Id. (citation

omitted).

GOLDSTEIN V. CITY OF LONG BEACH 11

On the other hand, the Supreme Court explained that “the

sheriff’s salary is paid out of the county treasury,”3 “the

county provides the sheriff with equipment (including

cruisers),” “the sheriff’s jurisdiction is limited to the borders

of his county,” and “the sheriff is elected locally by the voters

in his county.” Id. (internal quotation marks and citation

omitted). The Court noted but found “little merit” in the fact

that the county coroner fills temporary vacancies in the

sheriff’s office, the sheriff is indicated in the code among

“county officials” or “county employees,” and that the

Monroe County Commission’s insurance policy may cover

“some, but not all” of the claims against the Sheriff in this

case. Id. at 792 n.7. The Court “d[id] not find these

provisions sufficient to tip the balance in favor of petitioner”

because the county commission’s influence over the sheriff’s

operations was only “attenuated and indirect.” Id. at 792.

Therefore, the Supreme Court concluded that “the weight

of the evidence is strongly on the side of the conclusion” that

“Alabama sheriffs, when executing their law enforcement

duties, represent the State of Alabama, not their counties.”

Id. at 793.

B

Based on our analysis of the relevant California

constitutional and statutory provisions, we conclude that

California district attorneys act as local policymakers when

3

The county was not able to change the sheriff’s salary or refuse to pay

him, though it could “deny funds . . . beyond what is reasonably

necessary.” McMillian, 520 U.S. at 791 (internal quotation marks and

citation omitted).

12 GOLDSTEIN V. CITY OF LONG BEACH

adopting and implementing internal policies and procedures

related to the use of jailhouse informants.

We begin by examining district attorneys’ place within

the structure of government, and then by looking at the

constitutional and statutory provisions relevant to power and

duties of district attorneys within their counties, as well as the

control the California Attorney General and the county boards

of supervisors exercise over them. Our task, of course, is not

merely to weigh the amount of control that the Attorney

General and county board of supervisors possess over a

district attorney; instead, we must decide whether the district

attorney was acting on behalf of the state or the county.

As to governmental structure, “[t]he officers of a county

[include] [a] district attorney.” Cal. Gov. Code § 24000.

This is also reflected in Article XI of the California

Constitution, “Local Government,” under which “[t]he

Legislature shall provide for county powers, an elected

county sheriff, an elected district attorney, an elected

assessor, and an elected governing body in each county.”

Cal. Const. art. XI, § 1(b). Additionally, a district attorney

must be a registered voter of the county in which he or she is

elected, Cal. Gov. Code § 24001, and is elected by the voters

of the county, Cal. Gov. Code § 24009. A district attorney

may be removed from office by the same procedure as for

other city and county officials. Cal. Gov. Code § 3073.

Though these structural provisions provide a helpful

starting point for our analysis, the state’s label of the district

attorney as a county official informs but of course cannot

determine the result of our functional inquiry. See

McMillian, 520 U.S. at 792 n.7 (finding “little merit” in the

fact that the sheriff is indicated in the code among “county

GOLDSTEIN V. CITY OF LONG BEACH 13

officials” or “county employees”). For our more specific

inquiry, we focus on district attorneys’ roles vis-a-vis the

state Attorney General and the county board of supervisors.

First, Article V, Section 13 of the California Constitution

states:

Subject to the powers and duties of the

Governor, the Attorney General shall be the

chief law officer of the State. It shall be the

duty of the Attorney General to see that the

laws of the State are uniformly and adequately

enforced. The Attorney General shall have

direct supervision over every district attorney

and sheriff and over such other law

enforcement officers as may be designated by

law, in all matters pertaining to the duties of

their respective offices, and may require any

of said officers to make reports concerning the

investigation, detection, prosecution, and

punishment of crime in their respective

jurisdictions as to the Attorney General may

seem advisable. Whenever in the opinion of

the Attorney General any law of the State is

not being adequately enforced in any county,

it shall be the duty of the Attorney General to

prosecute any violations of law of which the

superior court shall have jurisdiction, and in

such cases the Attorney General shall have all

the powers of a district attorney. When

required by the public interest or directed by

14 GOLDSTEIN V. CITY OF LONG BEACH

the Governor, the Attorney General shall

assist any district attorney in the discharge of

the duties of that office.

Cal. Const. art. V, § 13.

We have already analyzed Article V, Section 13 of the

California Constitution as it relates to sheriffs’ supervision by

the Attorney General, and concluded that despite this

provision, sheriffs are county officers for the purposes of

investigation. Brewster v. Shasta Cnty., 275 F.3d 803, 805

(9th Cir. 2001). We cautioned that significant “reliance on

Article V, section 13, would prove too much.” Id. at 809.

“Under this provision, if taken to its logical extreme, all local

law enforcement agencies in California would be immune

from prosecution for civil rights violation, thereby rendering

meaningless the decision in Monell, which preserves § 1983

actions against local governments.” Bishop Paiute Tribe v.

Cnty. of Inyo, 291 F.3d 549 (9th Cir. 2002), vacated on other

grounds by Inyo Cnty. v. Paiute-Shoshone Indians, 538 U.S.

701 (2003). Instead, “[s]uch general law enforcement

authority ‘does not contemplate absolute control and

direction’ of the officials subject to the Attorney General’s

supervision.” Brewster, 275 F.3d at 809 (citing People v.

Brophy, 120 P.2d 946, 953 (Cal. Ct. App. 1942) (“[I]t is at

once evident that “supervision” does not contemplate control

. . . .”)); see also Pitts v. Cnty. of Kern, 949 P.2d 920, 939

(Cal. 1998) (Mosk, J., dissenting) (explaining that Brophy’s

analysis of the California Constitutional provision “is still

good law”).4

4

A contrary conclusion here that the district attorney here acts on behalf

of the state would be in tension with Brewster, given our conclusion there

that the sheriff acts on behalf of the county when conducting

GOLDSTEIN V. CITY OF LONG BEACH 15

Though the Attorney General “shall have direct

supervision over every district attorney and sheriff,” the

Attorney General’s control over the district attorney is quite

limited: he or she is limited to requiring a district attorney to

“make reports.” Cal. Const. art V, § 13; see Cal. Gov. Code

§ 12550. The Attorney General may also “call into

conference the district attorneys” “for the purpose of

discussing the duties of their respective offices.” Cal. Gov.

Code § 12524. This falls far short of a power to dictate

policy to district attorneys statewide, and is in contrast to the

sheriffs’ role in McMillian in which the governor and

attorney general could “direct the sheriff to investigate any

alleged violation of law in their counties,” and the sheriff had

to“promptly” complete the investigation and write a report to

the state official. McMillian, 520 U.S. at 791 (internal

quotation marks and citations omitted).

Further, unlike in McMillian, there was no significant

constitutional or statutory change that makes clear a trend to

place district attorneys under state control. See id. at 788.

Instead, when Article V, Section 13 was proposed in 1934, it

had as its goal efficiency and horizontal coordination, rather

investigations even though the Attorney General has much greater

supervisory power over sheriffs than district attorneys. Compare Cal.

Gov. Code § 12560 (“Whenever [the Attorney General] deems it

necessary in the public interest he shall direct the activities of any sheriff

relative to the investigation or detection of crime within the jurisdiction of

the sheriff. . . .” (emphasis added)) with Cal. Gov. Code § 12550 (“When

[the Attorney General] deems it advisable or necessary in the public

interest, or when directed to do so by the Governor, he shall assist any

district attorney in the discharge of his duties . . . .” (emphasis added)).

This is in contrast to the many provisions of the California Code that treat

sheriffs and district attorneys identically. See, e.g., Cal. Gov. Code

§§ 12524, 24000, 24001, 25300, 25303, 29601.

16 GOLDSTEIN V. CITY OF LONG BEACH

than a desire to weaken district attorneys or give the Attorney

General additional power. See 1934 Proposed Amendments

to Constitution, Propositions and Proposed Laws at 9 (“[T]he

manner in which the Dillingers, the ‘Baby Face’ Nelsons, the

Machine Gun Kellys, the Tuohys [sic] and numerous other

criminal gangs have been playing hide and seek with the

public authorities has truly became [sic] a National

disgrace.”). Additionally, district attorneys were added to the

list of county officials in a 1986 Amendment, which shows

that the most recent trend in California is to confirm the

district attorney’s place as a county officer. See Cal. Const.

Art. XI, § 1(b), historical notes.

If the Attorney General believes a district attorney is not

adequately prosecuting crime, the Attorney General is not

given the power to force a district attorney to act or adopt a

particular policy, but instead may step in and “prosecute any

violations of law” himself or herself. Cal. Const. art V, § 13;

see Cal. Gov. Code § 12550. The Attorney General may also,

“with or without the concurrence of the district attorney,

direct the grand jury to convene” and “may take full charge

of the presentation of the matters to the grand jury . . . .” Cal.

Penal Code § 923(a). The power to act in place of a district

attorney is undoubtedly less than if the Attorney General

could force a district attorney to use his or her own time and

resources to act.

If the Attorney General does step in to conduct a

prosecution, “in such cases the Attorney General shall have

all the powers of a district attorney,” Cal. Const. art V, § 13,

which suggests that the Attorney General does not have those

powers unless and until he or she steps in to conduct a

particular prosecution himself or herself. Finally, the

Attorney General is given the power to “assist the district

GOLDSTEIN V. CITY OF LONG BEACH 17

attorney in the discharge of the duties of that office,” Cal.

Const. art V, § 13, but this similarly does not suggest control

over or the power to mandate that a district attorney adopt a

particular policy.

Outside of conducting criminal prosecutions, the Attorney

General’s power is even more attenuated: California

authority indicates that district attorneys act on behalf of the

county and are under the general control of the county board

of supervisors. “The board of supervisors shall supervise the

official conduct of all county officers,” including the district

attorney, and the district attorney’s use of public funds. Cal.

Gov. Code § 25303. As did the state in McMillian, the

county board of supervisors “exercise[s] a general

supervision over the” district attorney, and for most purposes,

district attorneys are treated as “normal” county employees.

See McMillian, 520 U.S. at 790 (alterations in original).

The fact that the board of supervisors’ control “shall not

be construed to affect the independent and constitutionally

and statutorily designated investigative and prosecutorial

functions of the sheriff and district attorney of a county,” Cal.

Gov. Code § 25303, does not change this conclusion. As we

have previously explained when analyzing this provision as

to the sheriff, this limitation seeks to insulate the sheriff and

district attorney “from political pressure.” Brewster,

275 F.3d at 809. “The provision thus is akin to a separation

of powers provision, and as such has no obvious bearing on

whether [they] should be understood to act for the state or the

county. . . . Merely because a county official exercises certain

functions independently of other political entities within the

county does not mean that he does not act for the county.” Id.

at 810. Therefore, even though the board of supervisors does

not exercise complete control over the district attorney, that

18 GOLDSTEIN V. CITY OF LONG BEACH

does not mean that the district attorney was not acting on

behalf of the county here.

Other provisions indicating that the district attorney here

acts on behalf of the county include that the district attorney

is paid “out of the county treasury,” Cal. Gov. Code § 28000,

and the board of supervisors “shall prescribe the

compensation” of the district attorney, Cal. Gov. Code

§ 25300; cf. McMillian, 520 U.S. at 791 (“[T]he salaries of all

sheriffs are set by the state legislature, not by the county

commissions.”). Necessary expenses incurred “in the

prosecution of criminal cases” are “county charges,” Cal.

Gov. Code § 29601, the district attorney must “account for all

money received by him in his official capacity and pay it over

to the treasurer” of the county board of supervisors. “The

district attorney shall render legal services to the county

without fee,” Cal. Gov. Code § 26520; is the “legal adviser”

for the county if there is no county counsel, Cal. Gov. Code

§ 26526; cannot “in any way advocate” against the county,

Cal. Gov. Code § 26527; and may defend the county against

the State of California in a state eminent domain proceeding,

Cal. Gov. Code § 26541.

Finally, counties are required to defend and indemnify the

district attorney in an action for damages. Cal. Gov. Code

§§ 815.2, 825. The county’s obligation to defend and

indemnify the district attorney in an action for damages is a

“crucial factor [that] weighs heavily[.]” Streit v. Cnty. of Los

Angeles, 236 F.3d 552, 562 (9th Cir. 2001) (citation omitted).

In McMillian, the Court explained that the state’s

responsibility for judgments against the sheriff was “critical”

for the case and “strong evidence in favor of the . . .

conclusion that sheriffs act on behalf of the State.”

McMillian, 520 U.S. at 789.

GOLDSTEIN V. CITY OF LONG BEACH 19

C

In addition to constitutional and statutory provisions, the

practical treatment of the policies Goldstein addresses

supports the conclusion that this is a local, not statewide,

determination. In 1988, a jailed informant demonstrated on

60 Minutes how easy it was to concoct a plausible

“confession” to a crime by a prisoner he had never even met;

in part because of this demonstration, a Los Angeles County

Grand Jury convened to conduct “intensive investigation” and

heard testimony from 120 witnesses about the use of

jailhouse informants in Los Angeles County. Report of the

1989–90 Los Angeles County Grand Jury, Investigation of

the Involvement of Jail House Informants in the Criminal

Justice System in Los Angeles County 1–2 (1990), available

at http://www.ccfaj.org/documents/reports/jailhouse/expert/

1 9 8 9-1 99 0 %20LA%20 C o u n t y% 2 0 G r a n d % 2 0 J u r y

%20Report.pdf.

The report it issued in 1990 recommended that the Los

Angeles County “District Attorney’s Office should maintain

a central file which contains all relevant information

regarding the informant,” id. at 149, which that District

Attorney’s Office has now done. See Steve Cooley, Los

Angeles County District Attorney’s Office, Legal

Policies Manual 188 (April 2005), available at

http://www.ccfaj.org/documents/reports/jailhouse/expert/

LACountyDApolicies.pdf.

In 2004, a California State Senate Resolution created the

California Commission on the Fair Administration of Justice,

which was asked to “make any recommendations and

proposals designed to further ensure that the application and

administration of criminal justice in California is just, fair,

20 GOLDSTEIN V. CITY OF LONG BEACH

and accurate[.]” California Commission on the Fair

Administration of Justice, Final Report 186 (2008), available

at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf.

The Commission issued its final report in 2008 and made

individualized recommendations about informant testimony

for the legislature, police agencies, prosecutors, judges, and

defense lawyers. Id. at 13–14. The report specifically

recommended that “California District Attorney Offices adopt

a written internal policy, wherever feasible, to govern the use

of in-custody informants. The policy should provide [for] the

maintenance of a central file preserving all records relating to

contacts with in-custody informants, whether they are used as

witnesses or not.” Id. It is instructive that the Committee,

with significant expertise with both district attorneys offices

and state office,5 specifically recommended that “California

District Attorney Offices” should maintain the central file of

informants, and did not include this among its separate

recommendations for the legislature or suggest that the

Attorney General promulgate a rule. The Commission also

conducted a survey of California county district attorneys,

and of the nine responses the Commission received, only two

offices had a “policy [that] requires the maintenance of a

central file of all informant information.” Id. at 47. This

similarly suggests that, at least up to this point, district

5

For example, the Chair of the Commission was John K. Van de Kamp,

the Los Angeles County District Attorney at the time Goldstein was

tried and later a two-term Attorney General for the State of California.

See California Commission on the Fair Administration of Justice,

Final Report 1 (2008), available at http://www.ccfaj.org/documents/

CCFAJFinalReport.pdf.

GOLDSTEIN V. CITY OF LONG BEACH 21

attorney office policies related to informants have been

addressed by the individual offices rather than by the state.6

D

Taking all of these provisions together, it is clear that the

district attorney acts on behalf of the state when conducting

prosecutions, but that the local administrative policies

challenged by Goldstein are distinct from the prosecutorial

act. Most significant is the contrast between the steps that

were taken in Alabama to increase the state’s control over the

sheriff in McMillian and the contrary California trend to

categorize district attorneys as county officials; the fact that

“[t]he board of supervisors shall supervise the official

conduct of all county officers,” Cal. Gov. Code § 25303; and

the fact that the county must defend and indemnify the

district attorney in an action for damages, which the Supreme

6

We do recognize that the fact that the Attorney General has not

required all district attorney offices to adopt a policy creating a central file

for informants does not mean that she lacks the power to do so, but we do

note that Los Angeles County contends that the Attorney General has

much greater power than has ever been exercised. At oral argument, for

example, the County explained that the Attorney General has the power

to make the decision that no death penalty cases will be prosecuted in the

state of California, to require district attorneys offices statewide to

maintain an “open-file” policy, or to require that a centralized database for

jailhouse informants be adopted. The County offered neither authority for

nor examples of an Attorney General establishing policy in this way. The

County was also unable to offer and we have been unable to find any

example of the Attorney General stepping in to take over a prosecution or

dictating any sort of policy to a district attorney’s office without a request

from the district attorney’s office that he or she do so.

22 GOLDSTEIN V. CITY OF LONG BEACH

Court deemed “critical” in McMillian, 520 U.S. at 789; see

Cal. Gov. Code §§ 815.2, 825. Even taking into account the

control and supervisory powers of the Attorney General, the

Los Angeles County District Attorney represents the county

when establishing administrative policies and training related

to the general operation of the district attorney’s office,

including the establishment of an index containing

information regarding the use of jailhouse informants.

III

The County raises additional arguments. However, on

close examination, none is persuasive.

The County’s contention that the Supreme Court’s

conclusion in Van de Kamp determines the outcome of this

case is incorrect. Though the inquiries of prosecutorial

immunity and state or local policymaking may be related,

they are separate. The prosecutorial immunity inquiry

focuses on “policy considerations which compel civil

immunity,” Imbler v. Pachtman, 424 U.S. 409, 429 (1976),

and is a federal question that will have a consistent answer

nationwide. See Howlett v. Rose, 496 U.S. 356, 383 (1990).

The state-local determination under Section 1983, although

also a federal question ultimately, depends on a careful and

thorough analysis of state constitutional and statutory

provisions, and will vary “from region to region, and from

State to State.” McMillian v. Monroe Cnty., 520 U.S. 781,

795 (1997). In Van de Kamp, the Supreme Court did not look

to or examine California law, but focused on common-law

traditions and policy implications in determining that the

district attorney was entitled to absolute immunity.

GOLDSTEIN V. CITY OF LONG BEACH 23

The County similarly asserts, without citation, that

California law conflates the two analyses: district attorneys

act as State officials in the same instances that they are

protected by absolute prosecutorial immunity. However, the

California Supreme Court has explained that it is incorrect to

“assume[] that the functions for which a prosecutor may

obtain absolute, as opposed to qualified, immunity parallel

those for which a district attorney represents the state, as

opposed to the county.” Pitts, 949 P.2d at 935. “[T]hese are

in fact separate inquiries.” Id.; see also Pembaur v. City of

Cincinnati, 475 U.S. 469, 474 n.2 (1986) (holding county

liable for prosecutor’s actions after petitioner had conceded

that prosecutor was absolutely immune).

Contrary to the County’s argument, our decision in

Weiner has no bearing on this case. In Weiner, we held that

a “district attorney act[s] on behalf of the state, not the

county, in deciding to prosecute” a person for a crime, but

acknowledged that “this is not to say that district attorneys in

California are state officers for all purposes. To the contrary,

California law suggests that a district attorney is a county

officer for some purposes.” Weiner, 210 F.3d at 1026, 1031.

Weiner challenged the prosecutor’s decision to retry him for

murder after he was granted a new trial. Id. at 1027. In

concluding that “a county district attorney acts as a state

official when deciding whether to prosecute an individual,”

we focused on the fact that, under California law, “[i]n the

prosecution of criminal cases [the district attorney] acts by

the authority and in the name of the people of the state.” Id.

at 1030 (citations omitted); see also Cal. Gov. Code § 26500.

Because we do not address the decision to prosecute an

individual, the analysis in Weiner does not resolve the

question before us today.

24 GOLDSTEIN V. CITY OF LONG BEACH

Similarly, the County is incorrect that we are bound by

the California Supreme Court’s determination in Pitts that the

district attorney acts on behalf of the state for some purposes.

Though we must look at the relevant state law and state

courts’ characterizations of that law, the final determination

under 42 U.S.C. § 1983 is a federal law statutory

interpretation question; no deference is due to the ultimate

conclusion of the California court that the provisions, taken

as a whole, indicate the district attorney was a state actor

under Section 1983 for any particular function. See Weiner,

210 F.3d at 1025. “Although we must consider the state’s

legal characterization of the government entities which are

parties to these actions, federal law provides the rule of

decision in section 1983 actions.” Streit v. Cnty. of Los

Angeles, 236 F.3d 552, 560 (9th Cir. 2001) (citations

omitted). “State law does not control our interpretation of a

federal statute.” Id.; see also Cortez v. Cnty. of Los Angeles,

294 F.3d 1186, 1191 (9th Cir. 2002); Brewster, 275 F.3d at

811.

Nonetheless, we need not disrupt the California Supreme

Court’s conclusion because Pitts addressed a district attorney

function different than the one we confront today. In Pitts,

the California Supreme Court concluded that “the district

attorney represents the state, not the county, when preparing

to prosecute and when prosecuting crimes, and when

establishing policy and training employees in these areas.”

Pitts v. Cnty. of Kern, 949 P.2d 920, 923 (Cal. 1998). Pitts

alleged that the County and district attorney “established a

pattern, custom, and practice of procuring false statements

and testimony by threat, . . . bribery, and coercion of

witnesses” that “failed to provide adequate training,

procedures, guidelines, rules, and regulations to prevent such

conduct . . . .” Id. at 927. The court noted that it was “not

GOLDSTEIN V. CITY OF LONG BEACH 25

seeking to make a characterization of [California district

attorneys] that will hold true for every type of official activity

they engage in,” but instead focused on the district attorney’s

function “when preparing to prosecute and when prosecuting

criminal violations of state law, and when training and

developing policies for employees engaged in these

activities.” Id. at 928.

The California Supreme Court analyzed the provisions of

the California Constitution and the statutes discussed above,

and based on these considerations, it concluded that “when

preparing to prosecute and when prosecuting criminal

violations of state law, a district attorney represents the state

and is not a policymaker for the county.” Id. at 934. That

determination is not implicated by Goldstein’s claims.

As to training and supervising staff, the California

Supreme Court said that based on its conclusion that the

district attorney represents the state “when preparing to

prosecute and when prosecuting criminal violations of state

law,” it “further concludes it logically follows that he or she

also represents the state, and not the county, when training

and developing policy in these areas. No meaningful

analytical distinction can be made between these two

functions.” Id. at 935. Separating these two functions would

“require impossibly precise distinctions” and would lead to

“nonsensical,” “arbitrary” results. Id.

The Pitts Court examined the training and policies that

“failed to . . . prevent” the use of “threat, . . . bribery, and

coercion of witnesses,” id. at 927, and the challenged policies

were part of the training for district attorneys’ preparation of

individual witness for particular trials. In Pitts, child

witnesses were coerced into testifying falsely that the

26 GOLDSTEIN V. CITY OF LONG BEACH

defendants, their acquaintances or relatives, had sexually

abused them. Id. at 923. Coerced testimony from the alleged

victim of a crime is inextricably linked to the prosecution of

that crime.

The function at issue here, on the other hand, is

distinguishable from the question confronted by the

California Supreme Court because Goldstein challenges

administrative policy and accompanying training, rather than

prosecutorial training and policy. Goldstein’s challenge

focuses on the failure to create an index that includes

information about benefits provided to jailhouse informants

and other previous knowledge about the informants’

reliability, and the failure to train prosecutors to use that

index. Goldstein alleges that it was the lack of an index that

allowed Fink to lie about the benefits he received for

testifying against Goldstein, prevented prosecutors in

Goldstein’s case from knowing Fink’s history, and prevented

Goldstein’s counsel from impeaching Fink.

The conduct at issue here does not involve prosecutorial

strategy, but rather administrative oversight of systems used

to help prosecutors comply with their constitutional duties.

See Van de Kamp, 555 U.S. at 344 (“We agree with Goldstein

that, in making these claims, he attacks the office’s

administrative procedures.”); Pitts, 949 P.2d at 935 (“Our

conclusion as to which entity the district attorney represents

might differ were plaintiffs challenging . . . some other

administrative function . . . .”). In Pitts, there was no

administrative function involved. There can be a

“meaningful analytical distinction” between policies and

training relating to prosecutorial functions and an index made

and maintained as an administrative matter.

GOLDSTEIN V. CITY OF LONG BEACH 27

IV

In sum, we conclude that the policies challenged by

Goldstein are distinct from the acts the district attorney

undertakes on behalf of the state. Even taking into account

the control and supervisory powers of the Attorney General,

the Los Angeles County District Attorney represents the

county when establishing policy and training related to the

use of jailhouse informants. Therefore, a cause of action may

lie against the County under 42 U.S.C. § 1983. We reverse

the judgment of the district court.

REVERSED AND REMANDED.

REINHARDT, Circuit Judge, concurring:

I concur fully in Judge Thomas’s opinion and write

separately to make two points, one brief and one less so.

I.

Judge Thomas understates the problem with the

eponymous and notorious Edward Fink, if that is possible. In

the case that Judge Thomas cites, Thompson v. Calderon,

120 F.3d 1045 (9th Cir. 1997) (en banc), rev’d, 523 U.S. 538

(1998), Thomas Thompson was executed on the basis of

Fink’s perjured testimony. It is unlikely that Thompson was

death-eligible for his part in the crime, if he was guilty at all

of any offense. See generally Stephen Reinhardt, The

Anatomy of an Execution: Fairness vs. “Process”, 74 N.Y.U.

L. Rev. 313, 322–26 (1999). At Thompson’s trial, the

prosecutor committed prosecutorial misconduct that

28 GOLDSTEIN V. CITY OF LONG BEACH

constituted a constitutional violation and required reversal.

See Thompson, 120 F.3d at 1055. Additionally, Thompson’s

lawyer provided woefully inadequate representation, which

constituted another constitutional violation that required

reversal. See id. at 1053–54.

Despite a request to reverse Thompson’s conviction by

seven California prosecutors with extensive death penalty

experience, including the author of California’s death penalty

statute, the Supreme Court refused to consider Fink’s

perjured testimony or any of the constitutional violations, on

the dubious ground that our court abused its discretion in

recalling the mandate, on a basis that the Court had never

before recognized. Calderon v. Thompson, 523 U.S. 538

(1998).

Although Thompson was executed as a result of Fink’s

perjury (as well as the other unfortunate judicial matters

described above), the innocent Mr. Goldstein was fortunate

enough to avoid that fate. See Goldstein v. Harris, 82 F.

App’x 592, 593 (9th Cir. 2003) (affirming the district court’s

grant of habeas relief). He now seeks civil damages for

spending twenty-four years of his life in prison, as a result of

the Los Angeles County District Attorney’s Office’s failure

to adopt necessary and reasonable internal administrative

policies and procedures. I agree that he is entitled to pursue

his claim.

II.

One of the principal arguments on which the County

relies is the California Supreme Court’s decision in Pitts v.

County of Kern, 949 P.2d 920, 923 (Cal. 1998), in which that

court held that “the district attorney represents the state, not

GOLDSTEIN V. CITY OF LONG BEACH 29

the county, when preparing to prosecute and when

prosecuting crimes, and when establishing policy and training

employees in these areas.” I agree with Judge Thomas that we

are not bound by Pitts and that the policy at issue in Pitts

differs in kind from the administrative procedure that the

District Attorney failed to implement in this case. I write

separately, however, to explain why I find the reasoning in

Pitts to be unpersuasive. In short, the California Supreme

Court’s reasoning in Pitts is imprecise on a question that

demands precision.

To begin, the California Supreme Court never clearly

states the scope of its holding. On multiple occasions, the

state court writes that the setting of policy and training of

employees “in these areas” is a state function. E.g., Pitts,

949 P.2d at 923; id. at 934. I can only presume that “in these

areas” refers to the prosecution of crimes. The problem is that

virtually every “policy” in a district attorney’s office has

some relationship to the prosecution of crimes. Some policies

are directly related to the prosecutorial function—e.g., a

policy that prosecutors must instruct their witnesses to tell the

truth at all times when testifying. Some procedures are

indirectly related, if at all—e.g., a procedure governing the

disposal of confidential material in the office. I would call the

latter category of procedures “administrative.” The real

question then is whether the matter at issue is prosecutorial or

administrative. If prosecutorial, then the district

attorney—under the circumstances present in Pitts—serves as

a state actor. If administrative, then the district attorney—as

Judge Thomas’s opinion for the court explains—serves as a

county actor.

The California Supreme Court in large part avoided this

question in Pitts. It stated that drawing lines would “require

30 GOLDSTEIN V. CITY OF LONG BEACH

impossibly precise distinctions.” Pitts, 949 P.2d at 935. It

further declared that “no meaningful analytical distinction can

be made between” individual prosecutions and the setting of

policy and training of employees. Id. Thus, it suggested that

the establishing of all policies (including dress codes and the

like) and the training of all employees (presumably including

secretaries and janitors) is a state function, as well as the

prosecution of all cases.

I find the California Supreme Court’s imprecise answer

unpersuasive, for three reasons. First, the California Supreme

Court failed to follow the process set forth in McMillian,

which is for courts to make an independent determination

“whether governmental officials are final policymakers for

the local government in a particular area or on a particular

issue.” McMillian v. Monroe County, 520 U.S. 781, 785

(1997) (emphasis added). In Pitts, however, the California

Supreme Court made no function-specific determination.

Rather, it relied primarily on its conclusion that a district

attorney is a state actor when conducting individual

prosecutions and asserted that it “logically follow[ed]” that a

district attorney was also a state actor when setting policy or

training employees. Pitts, 949 P.2d at 934–35.1 In contrast, in

our opinion for the court, we conduct a close examination of

the relevant constitutional and statutory provisions and

conclude that the “Los Angeles County District Attorney

represents the county when establishing administrative

policies and training related to the general operation of the

district attorney’s office, including the establishment of an

1

It made only a passing reference to one provision of the California

Constitution, Article V, Section 13, which is not specific to the function

at issue in Pitts or in this case. See Maj. Op. at 13–17.

GOLDSTEIN V. CITY OF LONG BEACH 31

index containing information regarding the use of jailhouse

informants.” Maj. Op. at 22.

Second, the California Supreme Court’s discussion is not

internally consistent. Despite asserting that distinguishing

policy and training decisions from individual prosecutorial

decisions would require “impossibly precise distinctions.”

Pitts, 949 P.2d at 935, the state court stated that its conclusion

“might differ were plaintiffs challenging a district attorney’s

alleged action or inaction related to hiring or firing an

employee . . . or some other administrative function.” Pitts,

949 P.2d at 935. This distinction eludes me. The training of

employees is no more related to individual prosecutions than

the hiring, firing, or disciplining of those employees. If “no

meaningful analytical difference” exists between individual

prosecutions and employee training, then it should not exist

between individual prosecutions and employee hiring or

firing; yet the California Supreme Court suggested that the

latter might yield a different conclusion. A better explanation

for the California Supreme Court’s inconsistency is that it

must have recognized that its conclusion would otherwise call

into question a vast swath of Section 1983 jurisprudence, in

which counties are generally held liable for failure to hire or

fire decisions. See Bd. of Cnty. Comm’rs v. Brown, 520 U.S.

397 (1997). Unlike the California Supreme Court, we reach

a consistent conclusion here: counties should be held liable

for their administrative policies and procedures, including the

training of their employees and the hiring and firing of those

employees. See, e.g., Connick v. Thompson, 131 S. Ct. 1350,

1359 (2011).

Third, the California Supreme Court was simply incorrect

when it stated that its conclusion follows as a matter of

“logic.” The entirety of our opinion contradicts this assertion

32 GOLDSTEIN V. CITY OF LONG BEACH

of logical inference. As we have demonstrated through a

close examination of the various constitutional and statutory

provisions, a district attorney may act on behalf of the state

when making prosecutorial decisions but act on behalf of the

county when setting administrative policy or training

employees. See Maj. Op. at 11–22. I therefore agree with the

highly respected California Supreme Court Justice Stanley

Mosk who wrote:

[T]here is no insurmountable analytical

difficulty to concluding that a county cannot

be held liable under section 1983 when the

district attorney or one of his or her deputies,

as an agent of the state, commits prosecutorial

misconduct, but can be held liable when the

district attorney’s hiring, training and

supervision program, which the district

attorney undertakes as a local policymaker,

results in injury to a person’s civil rights.

Pitts, 949 P.2d at 940 (Mosk, J., dissenting). Indeed, several

circuits have come to the same conclusion that we reach here,

that district attorneys act as county officers when deciding

administrative policy and procedures related to training or

supervision, even though they act as state officers when

conducting prosecutions. E.g., Walker v. City of New York,

974 F.2d 293, 296 (2d Cir.1992); Carter v. City of

Philadelphia, 181 F.3d 339, 352 (3d Cir. 1999); Esteves v.

Brock, 106 F.3d 674, 678 (5th Cir.1997); Owens v. Fulton

County, 877 F.2d 947, 952 (11th Cir. 1989). Thus, I believe

that there can be and is a “meaningful analytical distinction”

between prosecutorial decisions and the creation of

administrative policy or the training of employees.

GOLDSTEIN V. CITY OF LONG BEACH 33

I do not suggest that it is always easy to distinguish

between policies that are prosecutorial in nature and

procedures that are administrative in nature. That point

notwithstanding, it is the proper inquiry. Line drawing is

frequently a difficult task for jurists. It is, however, one we

perform regularly. As Justice Oliver Wendell Holmes wrote

almost a century ago:

Neither are we troubled by the question where

to draw the line. That is the question in pretty

much everything worth arguing in the law.

Day and night, youth and age are only types.

Irwin v. Gavit, 268 U.S. 161, 168 (1925) (internal citation

omitted); see also Dominion Hotel v. State of Arizona,

249 U.S. 265, 269 (1919) (Holmes, J., for the court) (“[T]he

constant business of the law is to draw such lines.”). Nor is he

the only jurist of the Supreme Court to recognize this point.2

2

10 E. 40th St. Bldg. v. Callus, 325 U.S. 578, 584-85 (1945)

(Frankfurter, J., for the court) (“On the terms in which Congress drew the

legislation we cannot escape the duty of drawing lines. And when lines

have to be drawn they are bound to appear arbitrary when judged solely

by bordering cases. To speak of drawing lines in adjudication is to express

figuratively the task of keeping in mind the considerations relevant to a

problem and the duty of coming down on the side of the considerations

having controlling weight. Lines are not the worse for being narrow if they

are drawn on rational considerations. ”); Rosenberger v. Rector & Visitors

of Univ. of Virginia, 515 U.S. 819, 847 (1995) (O’Connor, J., concurring)

(“Reliance on categorical platitudes is unavailing. Resolution instead

depends on the hard task of judging—sifting through the details and

determining whether the challenged program offends . . . . Such judgment

requires courts to draw lines, sometimes quite fine, based on the particular

facts of each case.”). These are but a handful of the examples in which

Justices of the Supreme Court have recognized that line-drawing is

inherent in the task of judging.

34 GOLDSTEIN V. CITY OF LONG BEACH

The Pitts court abdicated its judicial function by adopting a

rule that avoids a case-by-case inquiry into whether a

particular function at issue is prosecutorial or administrative.