Butler v. San Diego Dist. Attorney's Office
| Decision Date | 04 June 2004 |
| Docket Number | No. 02-57049.,02-57049. |
| Citation | 370 F.3d 956 |
| Parties | Stacy BUTLER; Darryl Bradshaw, an individual; Clifton Cunningham, an individual; Edric Jordan, an individual; Kevin Tandard, an individual; Kyle Winters, an individual, Plaintiffs-Appellees, v. SAN DIEGO DISTRICT ATTORNEY'S OFFICE, a municipal sub-agency of the County of San Diego, Defendant, and Edward Cervantes, an individual, Defendant-Appellant. Stacy Butler; Darryl Bradshaw, an individual; Clifton Cunningham, an individual; Edric Jordan, an individual; Kevin Standard, an individual; Kyle Winters, an individual, Plaintiffs-Appellees, v. San Diego District Attorney's Office, a municipal sub-agency of the County of San Diego; Edward Cervantes, an individual; City of San Diego; San Diego Police Department; Jim Kelly, an individual, Defendants, and Keith Burt, an individual, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Eugene G. Iredale, Douglas S. Gilliland, San Diego, CA, for the appellees.
John W. Wood, Wood & Wood, La Jolla, CA, for Appellant Edward Cervantes.
Morris G. Hill, Office of the County Counsel, San Diego, California, for Appellant Keith Burt.
Appeal from the United States District Court for the Southern District of California. Judith N. Keep, District Judge, Presiding. D.C. No. CV-01-02087-JNK.
Before: PREGERSON, COWEN,* and W. FLETCHER, Circuit Judges.
Plaintiffs are six black men who were tried in California state court for the felony-murder of a police officer who had been shot and killed while chasing a fleeing suspect through a San Diego park in 1988. Defendants-appellants are the prosecutor in the case, San Diego Deputy District Attorney Keith Burt, and his investigator, District Attorney Investigator Edward Cervantes. The trial took place in 1993-94. The star witness at trial was the then-incarcerated Darin Palmer, who had agreed to cooperate with the prosecution. Four of the six plaintiffs were found guilty, one pleaded guilty to a lesser charge, and one was acquitted. The five convicted defendants were sentenced to long prison terms.
In 1997, an article in the San Diego Union-Tribune described favors provided by Burt and Cervantes to Palmer while he was a cooperating witness against plaintiffs. Among other things, the Union-Tribune article stated that Burt and Cervantes repeatedly transferred Palmer from prison to the San Diego District Attorney's office for sexual trysts with his wife and other women. The Union-Tribune ran photographs of Palmer and his wife having sex in a place clearly recognizable as the interior of the District Attorney's office. The special favors granted to Palmer, the star witness, were not disclosed to plaintiffs, to the judge at their criminal trial, or to the jury at that trial.
After publication of the article in the Union-Tribune, the five convicted defendants filed habeas corpus petitions in California state court. The state court granted the petitions and vacated the convictions. Prior to the scheduled trial, the trial judge disqualified the San Diego District Attorney in favor of the California Attorney General. After reviewing the file, the Attorney General offered a plea bargain. The convicted defendants agreed to the plea bargain, pleaded guilty to voluntary manslaughter, received time served (which was by this time several years), and were immediately released.
Plaintiffs — the five convicted defendants and one acquitted defendant — then brought this § 1983 action against, inter alia, Burt and Cervantes. Following discovery, Burt and Cervantes moved separately for summary judgment based on absolute immunity. Their motions were granted in part and denied in part. Burt and Cervantes appeal that part of the district court's order denying summary judgment.
We hold that the district court applied an incorrect evidentiary standard in denying summary judgment. It incorrectly understood the law to require it to assume that factual allegations in a plaintiff's § 1983 complaint are true when a defendant moves for summary judgment based on official immunity. Based on that understanding of the law, the district court did not rule on the admissibility of evidence proffered by plaintiffs at summary judgment, but rather simply assumed that the factual allegations in the complaint were true without regard to whether they had evidentiary support.
The district court was misled by a brief (and incorrect) statement by this court in Fletcher v. Kalina, 93 F.3d 653, 654 (9th Cir.1996), and a repetition of that statement by the Supreme Court on review of our decision in Kalina v. Fletcher, 522 U.S. 118, 122, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). We hold that these brief statements were inadvertent and erroneous statements of the law. A correct statement of the law is that when a defendant makes a properly supported motion for summary judgment based on official immunity, the plaintiff has an obligation to produce evidence of his or her own. In such a case, the district court is not required (or even allowed) simply to assume the truth of challenged factual allegations in the complaint. In other words, a motion for summary judgment based on official immunity is governed by Federal Rule of Civil Procedure 56, just like all motions for summary judgment in civil suits in federal district court.
We vacate the portion of the district court's order from which defendants have appealed and remand for further proceedings.
The following narrative is drawn from the plaintiffs' first amended complaint. The complaint is largely based on the findings of the state court habeas referee after extensive evidentiary hearings, but because the factual accuracy of the complaint has not been tested in the district court, we express no view here as to its accuracy.
According to the complaint, shortly after midnight on January 9, 1988, two San Diego Police Department ("SDPD") officers chased a black man in a green jacket through Lincoln Park in southeastern San Diego. While in pursuit, Officer Jerry Hartless was shot and killed. His partner called for backup, and more than one hundred SDPD officers responded. Officer Hartless's partner yelled to his fellow officers, "Get the guy with the green jacket." A number of the officers went to a nearby house (the "La Paz" house), known to be a gathering place for black neighborhood youths. The officers found a black man with a green jacket at the La Paz house. That man, Willie Godine, turned out to be the brother of veteran SDPD Detective Jim Kelly. SDPD officers telephoned Detective Kelly, woke him up, and told him to meet Godine at their mother's house.
Another black man at the La Paz house was plaintiff Stacy Butler. Police found a green "New York Jets" sweatshirt (not jacket) in his closet, and Butler admitted owning it. Butler put on the Jets sweatshirt at a curbside lineup before Officer Hartless's partner. The partner did not think Butler was the killer because the Jets sweatshirt had "too much white on it" and because Butler "had too much meat on him." At dawn, Sergeant Tom Payne and his K-9 police dog searched the La Paz house and backyard, which was dominated by a single large lemon tree, but found nothing. Shortly thereafter, Detective Kelly called his supervisors from his mother's house and recounted that Godine had told him that the murder weapon was under the lemon tree in the backyard of the La Paz house. Police and K-9 dogs searched the backyard and under the lemon tree for a second time, but again came up empty.
An hour after these searches, Detective Kelly and his brother Godine arrived at the backyard of the La Paz house. Detective Kelly walked directly to the lemon tree, kneeled down, and stood up with a .22-caliber revolver and a. 38-caliber revolver. Both revolvers had been cleaned of fingerprints. The .22-caliber revolver was owned by Darin Palmer and would turn out to be the murder weapon. Police thereafter found a prescription pill bottle near the murder scene in the park, filled with.22 caliber bullets. The prescription on the bottle was made out to Palmer.
Detective Kelly recounted the following story to his supervisors, which he claimed his brother Godine had told him. According to Godine's story, as recounted by Detective Kelly, in the early hours of the morning, shortly before SDPD officers arrived at the La Paz house, Butler had gone to the house and given Godine the revolvers with instructions to hide them. Godine had taken both guns and thrown them under the lemon tree. When his supervisors asked Detective Kelly why he had not told them this during their prior telephone conversation, Kelly replied that it had slipped his mind. According to Godine's story, Lisa Johnson, a female companion, was present when Butler gave Godine the revolvers with instructions to hide them. SDPD officers questioned Johnson, but she did not corroborate the story. Rather, she told them that she had seen no guns the previous night and had not heard any discussions regarding guns. Butler was nonetheless arrested.
When Sergeant Payne learned how easily Detective Kelly had found the revolvers under the lemon tree, he told Burt and Cervantes, "You've got problems with your evidence." To drive his point home, Payne replicated the original dog searches of the La Paz backyard for Burt and Cervantes. A police dog found a test gun hidden under the lemon tree within thirty seconds, indicating that the revolvers found by Kelly may have been planted.
Because admitting that the revolver might have been planted by Detective Kelly would seriously weaken the case, Burt and Cervantes changed the course of their investigation. Cervantes visited Palmer, then in prison, and told him that unless he helped convict Butler he was likely to be accused of the murder of Officer Hartless because the ammunition in his pill bottle was the same as that used to kill Officer Hartless. Palmer agreed...
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