Conner v. Heiman

• Decision Date: 09 March 2012
• Docket Number: No. 10–17545.,10–17545.
• Citation: 12 Cal. Daily Op. Serv. 2859,2012 Daily Journal D.A.R. 3200,672 F.3d 1126
• Parties: William H. CONNER, Plaintiff–Appellee, v. Steve HEIMAN and Russ Neil, Defendants–Appellants,andHarrah's Operating Company, Inc., Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2859

2012 Daily Journal D.A.R. 3200

672 F.3d 1126

William H. CONNER, Plaintiff–Appellee,

v.Steve HEIMAN and Russ Neil, Defendants–Appellants,andHarrah's Operating Company, Inc., Defendant.

No. 10–17545.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 2012.Filed March 9, 2012.

John S. Michela, Senior Deputy Attorney General of Nevada, Reno, NV, for the defendants-appellants.

Jeffrey A. Dickerson, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 3:08–cv–00633–RCJ–RAM.Before: JOHN T. NOONAN and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF, Senior District Judge.^*

OPINION

RAKOFF, Senior District Judge:

Plaintiff–Appellee William H. Conner sues Steve Heiman and Russ Neil, two Nevada Gaming Control Board agents, under 42 U.S.C. § 1983. Conner claims that Heiman and Neil violated his rights under the Fourth Amendment by arresting him without probable cause to believe that he had committed a crime. Conner also alleges that Heiman and Neil conspired with Harrah's Operating Company (“Harrah's”) to violate his rights. On October 20, 2010, the district court denied Heiman's and Neil's motion for summary judgment based on the defense of qualified immunity. Heiman and Neil now appeal from that decision.

We hold that the district court erred when it reserved the issue of whether Heiman and Neil had qualified immunity for the jury even though the parties did not materially dispute what facts Heiman and Neil knew when they arrested Conner. We further hold that Heiman and Neil did not violate clearly established rights by arresting Conner. Accordingly, Heiman and Neil are entitled to qualified immunity, and we reverse the district court's denial of their motion for summary judgment.

BACKGROUND

At summary judgment, the undisputed evidence showed the following. On July 19, 2008, Conner played baccarat at Harrah's casino. Conner made more than one bet at a first baccarat table, one bet at a second table, and many bets at a third table. While Conner was playing at the third table, two Harrah's employees, Sang Lee and Linda Coffee, separately indicated that they wished to speak with him. Conner declined to speak to Lee. A few minutes later, Coffee stopped the game Conner was playing and advised Conner that the dealer at the second baccarat table had overpaid him on his wager.

It was Lee who discovered the overpayment when he heard that Conner had won $2,850 on a single bet at the second table, whereas, because that table had a wager limit, Conner could have won at most $1,900 on a single wager. To confirm that Conner had received an overpayment, Lee called the casino's surveillance department, which confirmed the overpayment. Coffee then asked Conner to return the overpayment. Conner refused to do so, inquiring into the basis for Harrah's belief that he had received an overpayment. According to a statement provided by Lee, Conner yelled and responded rudely. According to a similar statement provided by Coffee, Conner was “extremely defensive” and “upset.” Instead of returning the overpayment, Conner made an appointment to speak with one of Harrah's games managers.

The next day, Conner met with Jim Webbert, a Harrah's games manager, who reiterated that Harrah's had overpaid Conner and stated that this had been confirmed on videotape. Webbert refused, however, to show Conner the video of the overpayment, and Conner, in turn, continued to refuse to return the overpayment. On July 23, 2008, Webbert reported the incident to the State Gaming Control Board. Heiman, who responded to the report, informed Webbert that, if Conner refused to return the overpayment after Harrah's informed him of its mistake, then the Gaming Control Board could investigate the incident as a criminal matter.

When, on August 3, 2008, Heiman received further notification from Webbert that Conner still refused to return the overpayment, Heiman opened an investigation. Heiman reviewed the surveillance video to confirm that the overpayment had, in fact, occurred. Heiman also reviewed the voluntary statements made by Lee and Coffee, which described how Lee had learned that Conner had received an overpayment and what had happened when Coffee requested that Conner return the overpayment.

On August 4, 2008, Heiman called Conner. Over the phone, Heiman informed Conner that, while Conner had committed no crime by accepting the overpayment, retaining the overpayment at this point would constitute theft under Nevada law. Conner, however, refused to return the overpayment unless he could see the evidence confirming that he had received it. Conner also asked if Heiman was in Harrah's “back pocket” and whether he did the casino's “dirty work.” After this conversation, Heiman concluded that he had probable cause to arrest Conner for theft. Heiman briefed his supervisor, Senior Agent Russ Neil, on his investigation, showing him the videotape of the overpayment. Neil agreed with Heiman's conclusions.

On August 6, 2008, Conner appeared at the Gaming Control Board Office of his own volition and requested to speak with Dave Andrews, who was Neil's and Heiman's supervisor, about the phone call he had received from Heiman. Neil informed Conner that Andrews was not available. Neil then frisked Conner. According to Conner, Neil was “dominant and controlling,” and the search he conducted offended and unsettled Conner. In his deposition, Conner stated that Heiman and Neil informed him that, if he did not pay Harrah's $950, they would charge him with a felony and take him to jail. Neil and Heiman did not let Conner view the video of the overpayment, instead informing him that they would present it only as required by the legal process. When Conner asked to go to Harrah's in his own car, Heiman and Neil refused, placing him under arrest. Heiman and Neil then drove Conner to Harrah's, where Conner returned the overpayment to Webbert. As Neil left Harrah's, he said, “I'll call you later, buddy,” to Webbert. Then, Heiman and Neil returned Conner to his car, and the parties separated.

On this record, the district court concluded that, although “there is no question of fact that a reasonable officer could have believed Conner had committed the requisite actus reus for theft, a reasonable jury could find that there was no probable cause to believe that Plaintiff had the requisite mens rea for theft.” Specifically, the court concluded that Conner's “behavior was consistent with a person who is accidentally overpaid, does not realize it, has no way to confirm or deny it when confronted ... who is understandably defensive when accused of theft, and who is understandably suspicious when his accuser refuses to show him alleged evidence it possesses.” Based on this conclusion, the district court denied Neil's and Heiman's motion for summary judgment on Conner's Fourth Amendment claim. With respect to the § 1983 conspiracy claims, the district court again denied the appellants' motion for summary judgment, concluding that “there remains a dispute as to whether the Defendants cooperated when Harrah's reported a crime and the State Defendants then investigated it, arrested Conner on probable cause, and facilitated the return of Harrah's money (a civil debt) via the threat of criminal prosecution.”

Neil and Heiman appeal from the district court's decision. The Court has jurisdiction to hear this appeal because “a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).¹ We review a district court's denial of a qualified immunity defense de novo. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).

DISCUSSION

A. Whether the District Court Erred by Reserving the Question of Qualified Immunity for the Jury

Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original). Thus, “[w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). While this Court at one time was of the view that district courts should not decide the issue of qualified immunity unless a rational jury could reach only one conclusion, the Supreme Court, in Hunter v. Bryant, rejected that approach for two reasons. 502 U.S. 224, 227–28, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); see also Act Up!/Portland, 988 F.2d at 872. First, the Supreme Court found that such an approach too often failed to protect defendants from the expenses of trial. Hunter, 502 U.S. at 228, 112 S.Ct. 534. Second, the Supreme Court noted that the question is “whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed.” Id.

After Hunter, this Court altered its approach to resolving questions of qualified immunity. See Act Up!/Portland, 988 F.2d at 873. Under the current approach, a district court should decide the issue of qualified immunity as a matter of law when “the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts.” Peng, 335 F.3d at 979–80. Only where “historical facts material to the qualified immunity determination are in dispute” should the district court submit the issue to a jury. Torres v....