Smiddy v. Varney

• Decision Date: 21 December 1981
• Docket Number: Nos. 79-3078,79-3480,s. 79-3078
• Citation: 665 F.2d 261
• Parties: Gary D. SMIDDY, Plaintiff-Appellee, v. Dudley D. VARNEY, Sidney J. Nuckles, Raymond D. Inglin, Gaston Herrera, Jesus C. Aguilar, the City of Los Angeles, California, a Chartered City, and the County of Los Angeles, California, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 261

665 F.2d 261

Gary D. SMIDDY, Plaintiff-Appellee, v. Dudley D. VARNEY, Sidney J. Nuckles, Raymond D. Inglin Gaston Herrera, Jesus C. Aguilar, the City of Los Angeles California, a Chartered City, and the County of Los Angeles California, Defendants-Appellants.

Nos. 79-3078, 79-3480.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1981.

Decided Aug. 7, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 21, 1981.

Michael Lightfoot, Los Angeles, Cal., for Smiddy; Carla M. Woehrle, Talcott, Vandevelde & Woehrle, Los Angeles, Cal., John H. Bisbee, Bisbee & Nagan, Macomb, Ill., on brief.

Tom Todd, Kentfield, Cal., for Varney, etc.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and SNEED, Circuit Judges, and CLAIBORNE ^*, District Judge.

SNEED, Circuit Judge:

Gary Smiddy was arrested in 1973 and charged with the murder of Linda Miller. After the charge was dropped for insufficient evidence, he brought suit under 42 U.S.C. § 1983 against employees of the Los Angeles Police Department. After trial, the district court entered judgment on a jury verdict awarding him $250,000. The district court added $250,000 in attorney's fees. The appellants, two sergeants and a polygraph examiner, challenge the judgment on numerous grounds. We reject their arguments that the district court should have directed a verdict in their favor and that the jury instructions were improper. But we conclude that the district court erred in refusing to hold that they were not liable for damages incurred after a district attorney, exercising his independent judgment, filed charges. We therefore reverse and remand for a new trial on the issue of damages. On remand, a reconsideration of the amount of the attorney's fees also will be necessary.

I. FACTS AND BACKGROUND

Linda Miller's body was found on Friday morning, October 19, 1973, at approximately 7:30 a. m., in the storage room of a construction site in the Venice area of Los Angeles. She had been strangled. She was last seen alive in public at about 5:00 a. m. Thursday morning, when she left a coffee shop with Gary Smiddy. Smiddy claims they went from the coffee shop to his apartment in separate cars, where they stayed until she left on Thursday afternoon. Smiddy was with friends from about 5:00 p. m. Thursday until Miller's body was discovered.

Defendants Varney and Nuckles, experienced homicide investigators, arrested Smiddy on November 15, 1973. At that time they knew that Miller had last been seen with Smiddy, that she had not reported to her job as a waitress on Thursday evening, and that she was found dead wearing the same clothes she had on when she left the coffee shop. They thought Smiddy might have murdered Miller after leaving the coffee shop at 5:00 a. m. Thursday morning and before workmen arrived at the construction site at 7:30 a. m. that day. A coroner, Dr. Gaston Herrara, said that she could have been dead for 30 hours before her body was discovered. Other information pointing toward Smiddy was that a neighbor had reported that Miller's car was parked near the construction site for a few days before it was found, a sergeant who observed the body at the construction site told Varney and Nuckles that the smell indicated that she had been dead for about a day, and a construction foreman said the body could have been in the storage room Thursday without being discovered. In addition, they had been told that Miller referred to Smiddy as "John" at the coffee shop, which was significant because she had told a number of persons that she was afraid of a man named John with whom she had lived and who she said had threatened her. Also, although the police officers had been told that Smiddy knew they would like to speak with him, he had not contacted them.

The plaintiff produced an array of evidence at trial designed to show that it was unlikely that he killed Miller and that Varney and Nuckles conducted their inquiry negligently. For example, the autopsy revealed that Miller had eaten spaghetti shortly before her death, but no one at the coffee shop remembered her eating spaghetti before she left with Smiddy. Her car was parked illegally and received a ticket on Friday morning but none on Thursday, making it unlikely that her car had been parked near the construction site that day. A construction worker told them it was inconceivable that Miller's body was in the storage room all day Thursday. And someone who was shown Miller's picture thought she had been in a bar Thursday night. The plaintiff also argued that Varney and Nuckles should have examined scientific evidence such as blood found in the storage room and seminal fluid found in Miller's vagina more carefully.

Perhaps most persuasively, the plaintiff argued that Varney and Nuckles failed to investigate other suspects adequately, including two former boyfriends named John. Miller had moved out of her apartment because a former boyfriend was harassing her, and she had told a number of friends that the former boyfriend had said that if he could not have her then no one could. The plaintiff presented evidence at trial that a man named John Cook, whom Varney and Nuckles never contacted, made that statement. The plaintiff also argued that the investigation of John Scroggin was deficient. Miller had lived with Scroggin in San Luis Obispo, and he had reportedly beat her and followed her to Los Angeles. Varney and Nuckles did investigate Ronald Varella, who had also lived with Miller and reportedly beat her. Smiddy complained because Varney and Nuckles dropped their investigation of Varella after they arrested him.

The plaintiff also suggested at trial that the police officers should have investigated Steve Dunne, who might have had a date scheduled with Miller on the night before her body was found, and Andy Rawn, with whom Miller had engaged in oral sexual relations at lunchtime on the Wednesday before her death, more carefully. The plaintiff argued that Dunne had lied to the police officers and that Miller may have attempted to blackmail Rawn, warranting further investigation of each.

The day after Varney and Nuckles arrested Smiddy, defendant Inglin administered a polygraph examination of him. Inglin was the president of the California Association of Polygraph Examiners at that time. A deal had been struck such that the police would release Smiddy if he passed the test, but Inglin concluded that Smiddy responded to his questions deceptively. In response to complaints about his examination of Smiddy, Inglin appointed a committee of past presidents of the Association in 1974 to evaluate the examination. The committee concluded that the test was administered deficiently, and the Association subsequently censured Inglin for the way he tested Smiddy.

On November 19, 1973, four days after the arrest, the district attorney filed a criminal complaint charging Smiddy with the murder of Linda Miller. A preliminary hearing was held in municipal court, and Smiddy was bound over to the superior court on December 14. The superior court dismissed the complaint for insufficient evidence on January 23, 1974.

Smiddy filed this section 1983 suit in 1976, alleging that the arrest and incarceration violated his civil rights. Following a lengthy jury trial in 1978, he was awarded $250,000 in damages from Varney, Nuckles and Inglin. The jury found that the coroner, Dr. Herrera, was not liable to Smiddy. ¹ The district court awarded the plaintiff $250,000 in attorney's fees under the Civil Rights Attorney's Fees Act of 1976, which amended 42 U.S.C. § 1988 to permit courts to award reasonable attorney's fees to the prevailing party in section 1983 actions. Varney, Nuckles and Inglin appeal.

II.

THE MOTIONS FOR DIRECTED VERDICT AND JUDGMENT

NOTWITHSTANDING THE VERDICT

Varney and Nuckles requested a directed verdict in their favor at the close of evidence, arguing that the evidence showed that probable cause existed for Smiddy's arrest as a matter of law. Inglin requested a directed verdict on the theory that his polygraph examination was not a proximate cause of Smiddy's damages. These requests were renewed in motions for judgment notwithstanding the verdict. We hold that the district court correctly denied these motions.

Whether probable cause existed for Smiddy's arrest is a close issue. But in reviewing the denial of a directed verdict in favor of a defendant, we must view the evidence in a light most favorable to the plaintiff. Maheu v. Hughes Tool Co., 569 F.2d 459, 464 (9th Cir. 1977). Giving the plaintiff the benefit of all reasonable inferences that may be drawn from the evidence presented during the course of the twenty-three day trial, sufficient evidence existed to support the jury's conclusion that there was no probable cause for the arrest.

It is not possible to summarize concisely all of the evidence presented on this issue since much of the trial was devoted to the issue of whether probable cause existed. But, as indicated above, there was conflicting evidence about what the police officers knew and what other leads they should have pursued. In Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978), we stated that if "reasonable persons might reach different conclusions about the facts, the establishment of those facts is for the jury, and the existence of probable cause is likewise for the jury, upon a proper instruction about the law." Id. at 247. The district court was correct under this standard in submitting the issue to the jury, which decided the issue in favor of Smiddy. We will not upset that decision.

Nor can we say that there was not sufficient evidence to conclude that Inglin's polygraph examination was a proximate cause of Smiddy's damages. Inglin argues that even if his examination had been conducted properly the results would have been inconclusive. But it is not clear what Varney and Nuckles would have done...