Paine v. City of Lompoc

• Decision Date: 13 September 2001
• Docket Number: DEFENDANTS-APPELLANTS,PLAINTIFF-APPELLEE,No. 99-56347,99-56347
• Parties: (9th Cir. 2001) SHANNON PAINE,, v. CITY OF LOMPOC, DEFENDANT, AND DANIEL P. AST INDIVIDUALLY AND AS OPINION A PEACE OFFICER; TIMOTHY E. TIETJEN, INDIVDUALLY AND AS A PEACE OFFICER,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 975

265 F.3d 975 (9th Cir. 2001)

SHANNON PAINE, PLAINTIFF-APPELLEE, v. CITY OF LOMPOC, DEFENDANT, AND DANIEL P. AST INDIVIDUALLY AND AS OPINION A PEACE OFFICER; TIMOTHY E. TIETJEN, INDIVDUALLY AND AS A PEACE OFFICER, DEFENDANTS-APPELLANTS.

No. 99-56347

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 8, 2001

Filed September 13, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Karen K. Peabody, Carrington & Nye, Santa Barbara, California, for the defendants-appellants.

Thomas E. Beck, Los Angeles, California, for the plaintiffappellee.

Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding D.C. No. CV-96-09037-JSL

Before: Stephen S. Trott, Sidney R. Thomas and Marsha S. Berzon, Circuit Judges.

Berzon, Circuit Judge

Opinion by Judge Berzon

Shannon Paine was arrested on July 4, 1993, in Pismo Beach, California, by police officers from the Cities of Pismo Beach and Lompoc. He was charged with resisting arrest and with battery on a police officer. The prosecutor later dropped the charges.

In a § 1983 suit against the municipalities and several individual police officers ("Paine I"), Paine claimed that he was subjected to excessive force during the arrest. In particular, Paine contended that Pismo Beach police officer Robert Jones, who knew and disliked him, injured his legs. Daniel Ast and Timothy Tietjen, both Lompoc police officers and individual defendants in Paine I, testified that they helped restrain Paine during his arrest, but denied knowing who, if anyone, had restrained Paine's legs. Other witnesses testified that Jones did not take part in restraining Paine. The jury returned a verdict for the defendants, upheld by this court on appeal. See Paine v. City of Lompoc, 160 F.3d 562 (9th Cir. 1998).

In this lawsuit ("Paine II"), Paine alleges that Ast and Tietjen participated in a conspiracy to suppress and fabricate evidence pertinent to Paine I about Jones' role in the arrest. Specifically, Paine claims that Ast and Tietjen helped keep secret the possible testimony of Pismo Beach police officers Mark Stewart and John Underhill. Both Stewart and Underhill, Paine maintains, would have contradicted Ast's and Tietjen's trial and deposition testimony in Paine I regarding Jones' role, provided evidence supporting the contention that Jones had personal reasons to arrest and attack Paine, and given testimony from which a jury could conclude that the defendants in Paine I purposely kept evidence of Jones's involvement from Paine and from the jury. Paine also claims that Ast and Tietjen hid the identities of civilian eyewitnesses to Paine's arrest, and that those eyewitnesses also would have supported Paine's version of the events surrounding the arrest.

The parties had full opportunity to conduct discovery in Paine II. After discovery closed, Ast, Tietjen, and the City of Lompoc sought summary judgment on the grounds that Paine failed to state a cognizable §§ 1983 cause of action for a coverup in Paine I. Ast and Tietjen also sought summary judgment on the additional ground that, under Briscoe v. LaHue, 460 U.S. 325 (1983), they were entitled to absolute immunity from liability because of their role as witnesses in the earlier lawsuit. In his response to appellants' motion for summary judgment, Paine offered the depositions of Underhill, Stewart, and civilian eyewitness John Carranza.

Underhill testified as follows in his deposition: He was present at the arrest. Jones and another Pismo Beach police officer, both of whom knew Paine, had long planned to fabricate criminal charges against him. Further, shortly after the July 4 incident, Underhill was summoned to meet with other Pismo Beach officers. Those officers suggested that Underhill might be the officer whose legs were shown in a photograph of Paine's arrest, stating that it would be better if that officer were not Jones. The inquiring officers asked Underhill to bring in the shoes he had worn that day, but the shoes he first brought in did not match those of the officer in the photograph. Underhill then brought in a second pair he had possibly worn that day. Those shoes were never returned to him, despite his inquiries, and he never learned whether or not they matched the shoes in the photograph.

Stewart said in his deposition: He was on duty at the pier the night of the incident and observed the incidents underlying Paine I. Jones, who, according to Stewart, had a "longstanding dislike" of Paine, instigated himself into the arrest incident despite orders to stay at his post and used force upon Paine. Moreover, members of the Pismo Beach Police Department knew that Jones, in other circumstances, had been untruthful about probable cause for arrest and had used excessive force. Further, after the July 4 incident, several Pismo Beach officers joked about spraying pepper spray directly in Paine's face, contrary to their testimony in Paine I. Finally, Stewart was known within the Department for resisting participation in fabrication and misrepresentation concerning incidents potentially embarrassing to the Department. Despite his presence at the scene, he was never contacted in connection with the Department's internal investigation of the Paine incident.

Carranza's testimony was that he had been present in the crowd at Paine's arrest, that he thought the police had tried to keep the crowd from seeing the police restrain Paine, and that an officer told him to keep back "if he knew what was good for him." He also said that the officers present took no statements from any of the hundreds of civilian eyewitnesses.

The district court denied the defendants' summary judgment motion without explanation. When Ast and Tietjen (but not the city) appealed, this court remanded for a statement of reasons as to the basis for denying summary judgment.

The district court thereupon issued a lengthy written opinion, explaining that Paine's case could go forward because there was evidence to support the conclusion that"[t]he conspiracy alleged by plaintiff was formulated and complete as to some or all of the defendants at the scene of plaintiff's arrest or shortly thereafter" and that the defendants "acted in official capacities, outside of court, to assure that favorable testimony given by some witnesses would not be impeached by others." There was also evidence that the defendants accomplished this goal, said the district court, by, among other things, "conceal[ing] the involvement of Jones in the arrest . . . , produc[ing] the appearance that independent investigations conducted in good faith . . . had resulted in findings that no wrongdoing had occurred . . . , and conceal[ing] the fact that there were police observers of the relevant events who, if called as witnesses, would materially contradict the testimony of other officers." The district court recognized, that "the proof that . . . evidence was withheld pursuant to a conspiracy in which any individual defendant participated is less [clear]," but declined to review the evidence concerning individual defendants' participation in the alleged conspiracy on summary judgment. The district court also held that, aside from the immunity issues, Paine had stated a viable§§ 1983 cause of action in Paine II and presented sufficient evidence to survive defendants' substantive motion for summary judgment.

I. Appellate Jurisdiction

This appeal is from a denial of a motion for summary judgment based in part on immunity grounds. We are therefore faced first with the question whether we have jurisdiction over the appeal, given that only final judgments are ordinarily appealable, 28 U.S.C. §§ 1291, and that none of the express exceptions to the finality rule are applicable. See 28 U.S.C. §§ 1292.

As a general matter, appeals from denials on summary judgment of claims of absolute immunity come within the collateral issue doctrine first recognized in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (because "the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action, " "the denial of a substantial claim of absolute immunity is an order appealable before final judgment"); In re Montgomery County, 215 F.3d 367, 374-75 (3d Cir. 2000).

Witnesses, including police witnesses, are accorded absolute immunity from liability for their testimony in judicial proceedings.¹ The purpose of such immunity is to encourage witnesses to come forward and speak freely in court by relieving the potential defendant of any fear that he will later have the burden of litigating the propriety of his conduct as a witness. Briscoe, 460 U.S. at 335-36. Denying that immunity on summary judgment compromises the reasons for the protection accorded court appearances, by subjecting the defendant to the rigors and distractions of standing trial even if he or she is ultimately found not liable on testimonial immunity grounds.

As we have indicated, albeit implicitly, before, see Cunningham v. Gates, 229 F.3d 1271, 1291 (9th Cir. 2000) (reviewing the denial of a summary judgment motion based on absolute witness immunity), denial of the absolute immunity accorded witnesses and participants in alleged conspiracies to testify falsely, Franklin v. Terr, 201 F.3d 1098, 1101 (9th Cir. 2000), like denials of other forms of absolute immunity, can be a collateral order that is appealable in the absence of a final order.

In this case, although denying summary judgment, the district court left open the possibility of a later determination that appellants are in fact absolutely immune. This decision thus compelled the defendants to stand trial for their conduct, thereby denying them one of the benefits of any immunity to which they might be entitled as effectively as if the district court had finally...