Poppell v. City of San Diego

• Decision Date: 10 July 1998
• Docket Number: No. 96-56844,96-56844
• Citation: 149 F.3d 951
• Parties: 98 Cal. Daily Op. Serv. 5416, 98 Daily Journal D.A.R. 7587 Elbert B. POPPELL, Plaintiff-Appellee, v. CITY OF SAN DIEGO; Sharren Carr; Chris Larson; Donald Albright, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 951

149 F.3d 951

98 Cal. Daily Op. Serv. 5416, 98 Daily Journal

D.A.R. 7587

Elbert B. POPPELL, Plaintiff-Appellee, v. CITY OF SAN DIEGO; Sharren Carr; Chris Larson; Donald

Albright, Defendants-Appellants.

No. 96-56844.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 3, 1998.

Decided July 10, 1998.

Michael R. McGuinness, Deputy City Attorney, Office of City Attorney, San Diego, CA, for defendants-appellants.

Michael R. Marrinan, Law Offices of Adler & Marrinan, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding. D.C. No. CV-93-00100-JSR.

Before: WALLACE, TROTT and HAWKINS, Circuit Judges.

TROTT, Circuit Judge:

I

Overview

Elbert Poppell, the operator of a private membership nudist club, filed a civil rights action pursuant to 42 U.S.C. § 1983 coupled with supplemental state tort and constitutional claims against the City of San Diego and various of its employees. Poppell contended as the gravamen of his civil rights claims that Zoning Administrator Sharren Carr and the City of San Diego selectively, punitively, and maliciously had caused him on an earlier occasion to be prosecuted by the San Diego City Attorney for zoning code violations. As a result of this criminal prosecution, Poppell was convicted of the strict liability offense of operating and maintaining an adult entertainment establishment in an area not zoned for such use, and of related misdemeanors. Poppell's convictions were affirmed by the state appellate courts, but subsequently overturned on habeas corpus review by a federal district court. No federal appeal was taken by the City, and because his business was inactive, Poppell was not retried. The jury in Poppell's current civil rights case from which this appeal is taken found appellants to be liable and denied appellant Carr the defense of qualified immunity as to the § 1983 claim.

The district court had jurisdiction over Poppell's claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291. We reverse as to appellant Carr because we conclude that the jury's verdict was not supported by substantial evidence, and because she is entitled on this record to immunity under both state and federal law. We reverse also as to the City of San Diego.

II

Facts

A.

Because Poppell's motive-based constitutional claims that he was maliciously and selectively prosecuted depend entirely on inferences we begin our discussion of the facts of this case with a review of (1) what inferences are, (2) how they work in the realm of legal reasoning, (3) when an inference is valid, and (4) when it is not. As Justice Felix Frankfurter observed after twenty-three years on the bench, "Fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling." ¹ Thus, we shall array in detail the facts and circumstances of Poppell's case which are necessary to our ultimate conclusion that his main claims fail against Carr for a lack of supporting evidence.

An inference is a process in which one proposition (a conclusion) is arrived at and affirmed on the basis of one or more other propositions, which were accepted as the starting point of the process. Stebbing observes that inference "may be defined as a mental process in which a thinker passes from the apprehension of something given, the datum, to something, the conclusion, related in a certain way to the datum, and accepted only because the datum has been accepted." It is a process where the thinker passes from one proposition to another that is connected with the former in some way. But for the passage to be valid, it must be made according to the laws of logic that permit a reasonable movement from one proposition to another. Inference, then is "any passing from knowledge to new knowledge." The passage cannot be mere speculation, intuition or guessing. The key to a logical inference is the reasonable probability that the conclusion flows from the evidentiary datum because of past experiences in human affairs. A nickel-plated revolver was used in the bank holdup by a ski-masked robber who got away with $10,000 in marked money. A nickel-plated revolver, a ski-mask and $10,000 in marked money is found in the apartment of Dirty Dan, its sole occupant. The inference is permissible that our friend Dan was the bank robber. A moment is necessary to discuss the difference between inference and implication. These terms are obverse sides of the same coin. We infer a conclusion from the data; the data implies the conclusion. Professor Cooley explains: "When a series of statements is an instance of a valid form of inference, the conclusion will be said to follow from the premises, and the premises to imply the conclusion. If a set of premises implies a conclusion, then whenever the premises are accepted as true, the conclusion must be accepted as true also...." As [Joseph Gerard] Brennan put it, "In ordinary discourse, [implication] may mean 'to give a hint,' and [inference], 'to take a hint.' Thus when my hostess yawns and looks at her watch, I infer from her behavior that she would like me to go home. Her yawn and look imply that this is her desire." Drawing a proper inference is critical in the practice of law:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated [in Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943) ]: "The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." [Tose v. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir.1981).]

Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking 26-27 (3d ed.1997).

B.

Beginning in 1981, appellee Elbert Poppell operated a swingers' club called Thad's in various locations throughout San Diego. The relevant law regarded his club as an adult entertainment establishment. Poppell's establishment provided a place for heterosexual consenting adults to disrobe, socialize, and dance in the nude, and engage in sexual acts. Poppell interviewed potential members and charged an initial membership fee as well as a nightly admission fee. The core group of members were, like Poppell, in their sixties and seventies. In later years, the social club attracted adults of all ages.

Poppell operated his establishment at many locations in San Diego throughout the ten years of its existence. Local law permitted him to operate such an adult entertainment establishment, but required that it be conducted only under specified circumstances, i.e., in the correct zone and at a certain distance from churches, schools, other adult entertainment establishments, and residential areas.

Poppell became embroiled over the years in numerous zoning disputes with the City regarding the various locations of his social club. In 1988, while Poppell was operating from a location on Monroe Street, Zoning Administrator and now appellant Sharren Carr brought charges to prosecutors that he was conducting his business in the wrong zone. Poppell was criminally prosecuted and convicted for conducting his business in a residential area. In the current proceeding, he admitted he was conducting his business on Monroe Street in violation of zoning regulations, i.e., within one thousand feet of a high school and in a residential neighborhood. He was placed on three years probation.

After his conviction, Poppell eventually relocated his establishment in early 1990 to Sunrise Street in a light industrial zone, designated I-1. On his application for a transfer of his former business tax certificate, however, Poppell fudged the nature of his club's business activities. Although Poppell planned to use the location for nude social events, on the certificate he stated that he would use the location for "screening and introduction of potential club members and office use." When asked at trial why he did not describe his business as a sexual encounter center, his answer was, "No special reason." He conceded, however, that his omission was deliberate because he disagreed with Carr and previous court rulings that his business was an adult entertainment establishment. Nevertheless, Carr personally reviewed the Sunrise location, assured Poppell that he was in compliance with applicable regulations, and approved the application. At trial, Carr described this approval as a mistake based on staff investigation that reported to her that the area was "clear," indicating it was not known to be in an improper location. Poppell acknowledged at trial that the only way he was able to operate on Sunrise Street was because of Carr's mistake.

Without incident, Poppell operated on Sunrise for one year. In the words of his lawyer, "[h]e didn't have any hassle from zoning people, building code people, or police officers." When the building owner planned to sell the building, however, Poppell was forced to relocate to his final location at 3488 E Street, still in the same light I-1 industrial zone, but in a much smaller building a block distant from Sunrise. The only other residence on the street was the family home of Archie Moore and his daughter, Rena....