Smith v. Almada

• Decision Date: 21 March 2011
• Docket Number: Nos. 09–55334,09–55346.,s. 09–55334
• Citation: 11 Cal. Daily Op. Serv. 3378,2011 Daily Journal D.A.R. 4087,640 F.3d 931
• Parties: Anthony W. SMITH; Theresa Smith, Plaintiffs–Appellants,v.Robert ALMADA, Santa Monica Police Sergeant, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

640 F.3d 931

11 Cal. Daily Op. Serv. 3378

2011 Daily Journal D.A.R. 4087

Anthony W. SMITH; Theresa Smith, Plaintiffs–Appellants,

v.Robert ALMADA, Santa Monica Police Sergeant, Defendant–Appellee.

Nos. 09–55334

09–55346.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2010.Filed March 21, 2011.

Brett J. Vottero, Springfield, MA, for the appellants.Anthony P. Serritella, Deputy City Attorney, Santa Monica, CA, for the appellee.On Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. No. 2:06–cv–1626–AHM.Before: D.W. NELSON and RONALD M. GOULD, Circuit Judges, and JAMES S. GWIN, District Judge.^*Opinion by Judge GWIN; Concurrence by Judge GOULD; Concurrence by Judge GWIN; Dissent by Judge D.W. NELSON.

ORDER

The opinion and dissent in the above-captioned matter filed on October 19, 2010, and published at 623 F.3d 1078, is WITHDRAWN. The superseding opinion, dissent, and concurrences shall be filed concurrently with this order.

The parties shall have fourteen (14) days from entry of the superseding opinion to file petitions for rehearing or petitions for rehearing en banc in the above-captioned matter.

IT IS SO ORDERED.

GWIN, District Judge:

OPINION

Plaintiffs Anthony Smith and his wife Theresa Smith appeal the district court's grant of summary judgment to Defendant Santa Monica Police Sergeant Robert Almada on Smith's claims for false arrest, malicious prosecution, and suppression of exculpatory evidence and on Theresa Smith's substantive due process claim for deprivation of familial relations.¹ In support of his action against Almada, Smith claims that Sergeant Almada failed to disclose materially exculpatory evidence in Smith's criminal arson trial—including a false identification by a key witness that Smith was gloating at the arson scene in the months following the fire. Although Smith's first trial resulted in a mistrial after the jury was unable to reach a verdict, he says that access to the exculpatory evidence would have caused the judge not to issue an arrest warrant or would have resulted in an acquittal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm after finding that the arguably non-disclosed evidence would not have resulted in a different outcome.

I

In the early morning hours of February 13, 2003, a fire started inside Simply Sofas, a furniture store owned by Marilyn Nelson. The fire and smoke largely destroyed the store's inventory, causing more than $2.8 million in damage.

After investigating, fire inspectors determined that an arsonist used three five-gallon water bottles filled with gasoline and stuffed with rolled-up periodicals, newspapers, and other gasoline-soaked mail as “firebombs” to start the fire. Under the melted remains of one bottle, the investigators also found an irregularly shaped piece of asphalt that matched a hole in the alley across the street from the furniture store. The investigators concluded that the arsonist broke the store window, likely with the asphalt, and placed the gasoline-filled bottles on a table just inside the window. They believed the arsonist then ignited the fires.

The gasoline-soaked papers that the investigators found inside the melted bottles included numerous pieces of mail addressed to Appellant Smith's residence over a five-year period, including: a July 1997 U.S. News magazine addressed to Anthony Smith, a December 1999 U.S. News magazine addressed to Anthony Smith, a January 2000 Motorcycle Rider magazine addressed to Anthony Smith, a 2002 tenant notice issued by Smith's apartment complex, a 2002 express mail envelope signed for by Anthony Smith, a Fall/Winter 2002 JCPenney catalog addressed to “Aundrea Smith,” a University of Alabama envelope addressed to Anthony Smith, a March of Dimes envelope addressed to Anthony Smith, a handwritten greeting card addressed to “the beloved Smith family,” a Rochester Clothing catalog addressed to Theresa Smith, a Los Angeles Music Center mailer addressed to Anthony Smith, and a Mark Taper Forum mailer addressed to Anthony Smith. The bottle did not include mail from any other individuals. The investigators also found the burnt business card of a Beverly Hills woman who worked for Smith.

Soon after the fire was under control, Defendant Santa Monica Police Sergeant Robert Almada took over the investigation. Almada had investigated four previous fires set in dumpsters behind 2408 Lincoln Boulevard in October and November 2002. Simply Sofas stood at 2314 Lincoln Avenue. With regards to one of the dumpster fires, Almada reported that the “fire source” might be a “possible chemical based incendiary device in a plastic container.” Witnesses to those earlier fires (including store owner Nelson) described different suspects, none resembling Smith.

In his investigation of the February 2003 fire, Sergeant Almada interviewed Nelson, who said that she, her daughter and son-in-law (both business partners in the store with Nelson), and a clerk had keys to the store. Nelson told Sergeant Almada that she and her son-in-law closed the store early the evening of the fire and that her son-in-law locked all of the doors.

According to Nelson, her business was in healthy financial condition: Annual sales were approximately $3 million, with profits around $400,000. The store had almost no debt. Nelson had never made a business- or fire-related insurance claim. Nelson did, however, receive insurance proceeds for the February 2003 fire.

At the time of the initial interview, Sergeant Almada asked Nelson if she could think of anyone with a motive for the arson. Nelson mentioned a former employee whom she had recently fired and a few other names, but not Smith.

Nevertheless, Sergeant Almada began to focus his investigation on Smith because Smith's mail—pieces received over a long period of time and from a variety of sources—had been used as a wick to start the fire at Simply Sofas. Almada questioned Smith, who described selling items on consignment through Nelson's store and stated that he and Nelson had a “minor issue” in January 2003 arising out of a broken item and a stop-payment order that Nelson had placed on a check paid to Smith.

Sergeant Almada then circled back to speak with Nelson. After Almada told Nelson that Smith was a suspect, Nelson described an “uncomfortable and tense” January 2003 dispute with Smith. The dispute centered over whether a consigned item was damaged before or after being sold to Nelson. Nelson said that when Smith dropped by her store to pick up payment for his consignment items, she told Smith that one of his consignment items had been broken before Smith delivered it to Nelson's store, and that she would not pay him the full amount for the item. But Smith claimed that one of Nelson's employees broke the item and demanded that Nelson pay for it. Nelson said that Smith's demeanor during their argument was threatening and frightening and that he stuck his finger in her face. To end the dispute, Nelson promised to give Smith an additional check for the broken item. Smith's assistant later called Nelson and said that Smith had lost the first check, so Nelson wrote Smith a second check for the value of the original consignment check plus the value of the broken item. After learning that Smith had not lost the first check, but instead had cashed it, Nelson stopped payment on the second check. Nelson said she felt that Smith was trying to intimidate her into paying more than she owed him.

In addition—and central to Smith's claims against Sergeant Almada—Nelson claimed to have seen Smith in front of her boarded-up store on the afternoon of June 28, 2003, “laughing and smiling” as he pointed to the area of the fire's origin. However, Sergeant Almada's investigation ultimately showed that Nelson's statement was false: Sergeant Almada viewed a security tape from Smith's apartment building showing that Smith was at home on June 28, 2003, the day Nelson claimed to have seen him.

Sergeant Almada confronted Smith with the evidence against him, especially the evidence that letters and mailings to Smith had been used as a wick for the firebombs. According to Sergeant Almada, upon learning of the scale of the fire and the evidence against him, Smith slumped over, began to cry, and apologized repeatedly. Smith recalls the conversation differently, claiming that Sergeant Almada told him that firefighters were fatally injured in the fire and that he cried and said he was sorry for their death but never said that he was involved. Smith gave no explanation for how his mail from over a five-year period ended up in the firebombs, but continued to deny involvement in the fire. Sergeant Almada did not arrest Smith at that time.

Instead, Sergeant Almada met with deputy district attorney Jean Daly to discuss the case against Smith. Daly does not recall discussing the prior dumpster fires behind Nelson's store, Sergeant Almada claims that he mentioned the previous fires to prosecutor Daly but and said he doubted that they were related to the February 2003 fire. Sergeant Almada did not tell Daly about Nelson's false report of Smith's gloating. After hearing Sergeant Almada's account of the evidence against Smith, prosecutor Daly recommended that Sergeant Almada obtain a warrant for Smith's arrest.

Consequently, Sergeant Almada sought an arrest warrant from Los Angeles Superior Court Judge Richard Neidorf, who authorized the warrant. Sergeant Almada then arrested Smith, and prosecutor Daly filed a criminal complaint charging Smith with arson. Smith did not make bail after his arrest and remained in jail through his first trial in June 2004.

At Smith's first trial, Nelson testified that her January 2003 dispute with Smith “shocked” and “intimidated” her. She said that Smith looked at her in a “very threatening” manner and “pushed his finger and almost to my face,” and that as a result she was “frightened...