738 F.2d 1005 (9th Cir. 1984), 82-5499, McKenzie v. Lamb

Docket Nº:82-5499.
Citation:738 F.2d 1005
Party Name:Jerry McKENZIE and Thomas Herndon, Plaintiffs-Appellants, v. Ralph LAMB, Sheriff of Clark County, Detective Gary Barlow, Detective J. McGuckin, Detective Herbert Barrett, Detective Chuck Lee, Detective B. Avants, Sgt. Frank Jergovic, Detective M.J. Maddock, Detective Al Leavitt, and Clifford Hazelton, Defendants-Appellees.
Case Date:July 24, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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738 F.2d 1005 (9th Cir. 1984)

Jerry McKENZIE and Thomas Herndon, Plaintiffs-Appellants,

v.

Ralph LAMB, Sheriff of Clark County, Detective Gary Barlow,

Detective J. McGuckin, Detective Herbert Barrett, Detective

Chuck Lee, Detective B. Avants, Sgt. Frank Jergovic,

Detective M.J. Maddock, Detective Al Leavitt, and Clifford

Hazelton, Defendants-Appellees.

No. 82-5499.

United States Court of Appeals, Ninth Circuit

July 24, 1984

Submission Vacated May 17, 1984. Argued and Submitted Jan. 11, 1983.

Submission Vacated May 17, 1984.

Resubmitted May 17, 1984. *

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Charles W. Daniels, Freedman, Boyd, Daniels, Albuquerque, N.M., for plaintiffs-appellants.

Dana Jonathan Nitz, Barker, Gillock & Perry, Las Vegas, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before GOODWIN, KENNEDY, and POOLE, Circuit Judges.

KENNEDY, Circuit Judge:

Appellants Jerry McKenzie and Thomas Herndon sued officers of the Las Vegas, Nevada, police department under 42 U.S.C. Sec. 1983. The substance of their complaint was that the police officers, in their zeal to solve a brutal murder and robbery that had occurred five months previously, made mistaken arrests and then tried to cover-up their errors, all in violation of the appellants' rights under the fourteenth amendment and under state law.

McKenzie and Herndon are businessmen from Albuquerque, New Mexico. Both were involved in the turquoise jewelry trade. In early 1976, McKenzie, Herndon, and one Michael Hazelton devised a business plan to sell high quality turquoise jewelry to wealthy entertainers. The sales were to be made at private showings arranged

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through Hazelton's father, Clifford. Clifford Hazelton had recently moved to Las Vegas from Hollywood, where he had been a screenwriter and supposedly had numerous contacts within the entertainment community.

On April 2, 1976, Michael Hazelton called his father in Las Vegas and discussed the venture. Clifford, skeptical of the plan, was concerned that his son's partners might not be legitimate businessmen. He contacted the Las Vegas police to express his doubts and seek advice.

The Las Vegas police were particularly interested in the report of a plan to sell expensive turquoise jewelry at private showings. In November 1975, a substantial amount of turquoise jewelry had been stolen from a shop owned by Al and Beth Edwards, who were brutally murdered. The police thought Clifford Hazelton's call might be a lead in the case.

In order to pursue the possibility of solving the Edwards murder and robbery case, the police concocted a plan: Wayne Newton, an entertainer acquainted with one of the officers, would feign interest in the appellants' jewelry and request them to show their merchandise in Las Vegas. The Las Vegas police, posing as members of Newton's party, would be able to observe both the jewelry and the appellants.

Pursuant to the police plan, a showing took place on April 9, 1976 at Newton's hotel. A witness from the Edwards' case signaled to the officers that he could not identify the appellants or their jewelry. The appellants were arrested nevertheless, and their merchandise was seized. Appellants allege that during the course of the arrests, the officers, all in plain-clothes, refused to identify themselves and used unwarranted physical intimidation. Appellants were charged with receiving stolen property, a felony, and doing business without an occupational license, a misdemeanor. The felony charge was never prosecuted. On the misdemeanor charge, appellants were acquitted by a jury.

McKenzie and Herndon brought this suit in federal district court, alleging civil rights violations based on unlawful arrest, unlawful seizure of their property, excessive use of force, and conspiracy to deprive them of their civil rights, as well as related state tort claims. The district court granted summary judgment to the defendants on all claims for relief. The district court found as a matter of law that probable cause existed for both the felony and misdemeanor arrests, and that no excessive force was used. In addition, the district court found that Clifford Hazelton did not cause appellants arrest. McKenzie and Herndon appeal. We reverse the summary judgment granted in favor of the officers; we affirm that part of the summary judgment granted in favor of Clifford Hazelton.

Under Sec. 1983 "[e]very person who, under color of [state law], ... [deprives] any citizen of the United States ... of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...." 42 U.S.C. Sec. 1983. The fourth amendment to the United States Constitution, applicable to the states through the fourteenth amendment, prohibits arrests without probable cause. Beck v. Ohio, 379 U.S. 89, 90-91, 85 S.Ct. 223, 225-226, 13 L.Ed.2d 142 (1964). Arrests without probable cause thus give rise to a cause of action for damages. Gilker v. Baker, 576 F.2d 245 (9th Cir.1978) (Sec. 1983 action); see Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971) (constitutional damage action for unlawful arrest under color of federal law).

Appellants allege that their arrests on both the felony and misdemeanor charges were without probable cause. Summary judgment is proper only if no material facts are in dispute and one party is entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c). Our task in determining whether probable cause to arrest existed as a matter of law in this Sec. 1983 action is slightly different from a similar determination in the context of a direct review of a criminal arrest. In the latter situation, we

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are called upon to review both law and fact and to draw the line as to what is and is not reasonable behavior. We are not always in agreement as to its location, but a line must be drawn. By contrast, in a Sec. 1983 action the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury, see Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir.1981), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982)...

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