Cunningham v. City of Wenatchee

Decision Date03 October 2003
Docket NumberNo. 02-35792.,02-35792.
Citation345 F.3d 802
PartiesHenry H. Cunningham, Plaintiff-Appellee, v. City of Wenatchee, Defendant, and Robert R. Perez, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Patrick McMahon, Carlson, McMahon & Sealby, Wenatchee, Washington, for the defendant-appellant.

Michael Pierson, Riddell Williams, Seattle, Washington; Glenn S. Draper, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Chief District Judge, Presiding, John C. Coughenour, District Judge, Presiding. D.C. Nos. CV-01-00058-WFN, CV-00-01640-JCC.

Before: Donald P. Lay,* Warren J. Ferguson, and Ronald M. Gould, Circuit Judges.


LAY, Circuit Judge:

Henry Cunningham brought suit in federal district court alleging Robert Perez, a police officer with the City of Wenatchee, Washington, and other government officials, violated his civil rights during a sex abuse investigation.1 The district court denied Perez's motion for summary judgment based on qualified immunity. This appeal followed, and we reverse.

I. Background

Cunningham lived in Wenatchee with his wife, Connie, and three of his four children, Jennifer, Sarah, and Jessica. In May 1994, Cunningham's youngest daughter, Jessica, experienced behavioral and drug problems, which led to her stay at Pinecrest Hospital. While receiving treatment, Jessica claimed her father sexually abused her. After hearing Jessica's claim, a Pinecrest employee contacted Child Protective Services (CPS) in Wenatchee. CPS notified the Wenatchee Police Department of Jessica's disclosures.

After Cunningham learned about his daughter's claims, he went to the Wenatchee Police Department. Detective Perez gave Cunningham his Miranda rights, and Cunningham signed a valid waiver of those rights. Perez then interrogated him. Cunningham initially claimed he did not sexually abuse Jessica. Perez called Cunningham a liar and said he knew that Cunningham committed the offense. Perez told Cunningham that his daughters would be forced to testify if he refused to confess.

Cunningham, who was taking medication for a bi-polar disorder, asked to call his therapist, but Perez denied the request. Perez told Cunningham that he had put people in the Washington State Penitentiary, but that Cunningham could receive treatment instead of serving time in prison if he confessed. The interrogation lasted for eight hours. Cunningham did not request a break for food or water. Perez, at times, raised his voice, but never yelled or used physical violence. At the end of the interrogation, Cunningham signed a confession admitting to abusing all of his daughters. Perez arrested Cunningham.

After the arrest, Perez interviewed Jennifer and Sarah. Both failed to confirm their father's alleged abuse. Perez also interviewed Mrs. Cunningham, who proclaimed her husband's innocence. Perez did not create a record of these interviews. Perez then interviewed Jessica at Pinecrest. She denied being abused by her father. Perez continued to question her and allegedly told her that she would have to stay at Pinecrest until she disclosed her father's abuse. After a number of hours, Jessica recounted incidents of abuse. Perez then revisited Sarah and Jennifer. Both daughters admitted to being abused by their father and gave Perez a detailed statement. Perez conducted no additional interviews.

Cunningham pled guilty to sexually abusing his daughters. After serving five years in prison, the Washington Court of Appeals vacated his conviction, and the Chelan County Prosecutor dropped all charges. Cunningham then filed a civil rights action under 42 U.S.C. § 1983 against Perez, the City of Wenatchee, and various other state officials who investigated his alleged crimes. He claimed the City and its officials violated his right to be free from self-incrimination, arrested him without probable cause, fabricated the evidence, and concealed exculpatory evidence. Perez filed a motion for summary judgment based on qualified immunity, which the district court denied. Perez now appeals.

II. Jurisdiction

We first address whether we have jurisdiction over Perez's interlocutory appeal. The Supreme Court's decisions in Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), and Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), guide our analysis. In Johnson, the plaintiff brought suit against police officers for using excessive force during an arrest. The district court denied the officers' motions for summary judgment based on qualified immunity because the pretrial record contained sufficient evidence to show a genuine issue of fact for trial. Johnson, 515 U.S. at 308, 115 S.Ct. 2151. The officers immediately appealed the ruling, arguing that the record contained no evidence showing they had assaulted the plaintiff. Id. The Seventh Circuit dismissed the appeal for lack of jurisdiction. The Supreme Court affirmed. It held the officers could not bring their interlocutory appeal because the only question before the court of appeals was whether the record was sufficient to show the officers assaulted the plaintiff. Id. at 307, 115 S.Ct. 2151. Interlocutory appeals are not available when the appellate court is required to resolve a "fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial." Id. The officials must present the appellate court with a legal issue that does not require the court to "consider the correctness of the plaintiff's version of the facts...." Id. at 312, 115 S.Ct. 2151(quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

In Behrens, the Court faced another interlocutory appeal from the denial of qualified immunity.2 The Court noted that the rule in Johnson does not bar all interlocutory appeals from the denial of qualified immunity simply because the district court found a disputed issue of material fact. Behrens, 516 U.S. at 313, 116 S.Ct. 834. The Court stated an appellate court could exercise jurisdiction over a district court order that determined 1) material facts were in dispute, and 2) the defendant's alleged conduct violated clearly established law. Id. Such an order contrasts with the district court's order in Johnson, which determined only the question of sufficiency of the evidence to support the merits of plaintiff's claim. However, the district court in Behrens determined that the defendant's conduct violated clearly established law, the officials could bring an interlocutory appeal. Id. On appeal, the court of appeals was instructed that it must resolve any factual disputes in favor of the plaintiff and decide the legal question as to whether the official's alleged conduct violated clearly established law. Id.3

From Behrens, our cases have distilled the following rule for interlocutory appeals from the denial of qualified immunity: We do not have jurisdiction over interlocutory appeals from district court orders that decide only whether there exists sufficient evidence to sustain the material facts shown by the plaintiff. However, we are instructed that we do have jurisdiction from district court orders that decide not only that material facts are in dispute, but also that the defendant's alleged conduct violated the plaintiff's clearly established constitutional rights. When exercising jurisdiction over the latter type of order, we resolve all factual disputes in favor of the plaintiff and look at the purely legal question of whether the defendant's alleged conduct violated the plaintiff's clearly established constitutional rights. See, e.g., Bingham v. City of Manhattan Beach, 329 F.3d 723, 725 (9th Cir. 2003) (noting when facts are disputed, the court must assume the non-moving party's facts are correct); Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001) (exercising jurisdiction over the defendant's interlocutory appeal by crediting all of the plaintiff's facts, leaving only the legal issue to decide); Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000) (noting that "we assume the version of the material facts asserted by the non-moving party to be correct" when determining whether the alleged conduct violates clearly established law); Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997) (exercising jurisdiction even though the district court found disputed issues of material fact).

In the present case, the district court ruled that Perez was not entitled to qualified immunity because "there is enough doubt to find that a reasonable state official would not have believed [Perez's] conduct was lawful." The district court made no specific reference to the sufficiency of the evidence or to any dispute of material fact. The district court determined only whether Perez's conduct violated clearly established law. This determination is a legal ruling. See Armendariz v. Penman, 75 F.3d 1311, 1317 (9th Cir.1996) (en banc). This court has jurisdiction to review a district court's decision that a defendant's alleged conduct violated clearly established law. Id. See also Knox, 124 F.3d at 1107 (exercising jurisdiction to determine "whether a reasonable officer would know that his or her alleged conduct violated clearly established law").

To better understand appellate jurisdiction on an interlocutory appeal involving the defense of qualified immunity, we must examine the underlying principles behind interlocutory appeals from the denial of qualified immunity, which were first set forth in Mitchell, and revisited in Johnson and Behrens. As Johnson pointed out, various courts of appeals have held different views about the immediate appealability of the claims of public officials who assert...

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