Haupt v. Dillard, 92-15966

• Citation: 17 F.3d 285
• Decision Date: 15 April 1994
• Docket Number: No. 92-15966,92-15966
• Parties: Howard L. HAUPT, Plaintiff-Appellant, v. T.D. DILLARD, Robert Leonard; Las Vegas Metropolitan Police Department; City of Las Vegas, Nevada and Clark County, Nevada, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 285

17 F.3d 285

Howard L. HAUPT, Plaintiff-Appellant, v. T.D. DILLARD, Robert Leonard; Las Vegas Metropolitan Police

Department; City of Las Vegas, Nevada and Clark

County, Nevada, Defendants-Appellees.

No. 92-15966.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided Feb. 25, 1994.

As Amended April 15, 1994.

William F. Gary, James E. Mountain, Jr., Harrang, Long, Watkinson, Arnold & Laird, Eugene, OR, for plaintiff-appellant.

James R. Olson, Peter M. Angulo, Walter R. Cannon, Rawlings, Olson & Cannon, Las Vegas, NV, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.

Before: CANBY, and NOONAN, Circuit Judges, and ORRICK, ^* District Judge.

OPINION

CANBY, Circuit Judge:

On November 27, 1987, seven-year-old Alexander Harris disappeared from the video game arcade at Whiskey Pete's Hotel and Casino in Stateline, Nevada, where he had been left by his parents while they went to the casino to gamble. Approximately one month later, his body was discovered beneath a trailer on the casino grounds. An autopsy revealed that he had been murdered on or about the date of his disappearance.

Defendants Dillard and Leonard, detectives with the Las Vegas Metropolitan Police Department, were assigned to investigate. After a two-month investigation, they obtained and executed a warrant for Haupt's arrest, charging him with the kidnapping and murder of Alexander Harris. The case was tried to a jury, and Haupt was acquitted of all charges.

Following his acquittal, Haupt brought this action in federal district court pursuant to 42 U.S.C. Sec. 1983, claiming that during the course of their investigation and Haupt's subsequent trial, the defendants violated his federal constitutional rights (a) to be free from unreasonable searches and seizures, (b) to be free from malicious prosecution, and (c) to a fair and impartial trial. ¹ He also included claims under Nevada law for defamation, false imprisonment, and intentional infliction of emotional distress. The district court granted summary judgment for the defendants on Haupt's federal claims, and then, sua sponte, dismissed Haupt's state claims for lack of jurisdiction. 794 F.Supp. 1480.

We reverse the district court's judgment as to Haupt's fair trial and pendent state claims, and affirm as to Haupt's Fourth Amendment and malicious prosecution claims.

DISCUSSION

We review de novo a district court's grant of summary judgment. Forster v. County of Santa Barbara, 896 F.2d 1146, 1147 (9th Cir.1990).

I: Haupt's Due Process Claim

We address Haupt's claim of denial of fair trial first because we deem it the most important. In the course of reviewing jury instructions at the close of evidence, the judge presiding at Haupt's criminal trial indicated to counsel that he intended to give the jury an instruction advising acquittal. The deputy district attorney responded by arguing with the judge and stating, among other things, that the "blood of Alexander Harris" would be on the judge's hands if he proceeded to give that instruction. The following day, defendant Dillard telephoned the judge to argue against the jury instruction, telling him that giving it was "ridiculous." Before charging the jury, the judge stated, for the record, that he felt "threatened" and "intimidated" by Dillard and the deputy district attorney, and "because of that [he did] not dare now give the advisory verdict of acquittal."

Despite the evidence of this egregious behavior, the district court granted summary judgment for defendants on Haupt's claim that this incident violated his due process right to a fair and impartial trial. The district court held that "the fact that [Haupt] was ultimately acquitted conclusively shows that he received a fair trial." But the acquittal does not erase all injury.

The right to a fair trial is "a basic requirement of due process" and includes the right to an unbiased judge. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Here, Haupt charges that defendants intimidated the judge into changing his jury instructions. If this allegation is true, Haupt did not get the unbiased judge to which he was entitled. The fact that Haupt ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action. We dealt with an analogous situation in Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.1992) (en banc), where we held that interrogation of a suspect in violation of his Miranda rights was actionable even though the suspect was never charged and the resulting statement was never used; those facts were "relevant only to damages, not to whether he has a civil cause of action in the first place." Id. at 1245; see also, Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978) (violation of right to procedural due process actionable without proof of actual injury).

Venegas v. Wagner, 704 F.2d 1144 (9th Cir.1983), upon which the district court relied, is not to the contrary. Venegas stands only for the proposition that, when a plaintiff alleges violation of his right to a fair trial and that violation resulted in a conviction, the conviction is the primary injury and the statute of limitations does not begin to run until the primary injury has occurred. Id. at 1146.

Here, there was no conviction, and the alleged violation of Haupt's due process rights was complete when the trial judge changed his jury instructions because of defendants' intimidation.

[E]very procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.

Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927). The district court erred in ruling that Haupt's acquittal defeated his claim for denial of due process as a matter of law.

II: Haupt's Unreasonable Search and Seizure Claim

Haupt alleges that Dillard and Leonard violated his rights under the Fourth Amendment when they secured a warrant for his arrest on the basis of an affidavit that they knew contained false statements and which they knew omitted facts tending to show his innocence. If Dillard and Leonard in fact had probable cause to arrest Haupt, then they are immune from suit. See Forster, 896 F.2d at 1148. On this basis, the district court granted summary judgment for defendants, finding that probable cause to arrest Haupt had been conclusively determined during his state criminal prosecution. The court held Haupt to be collaterally estopped from relitigating the issue. Haupt objects to the district court's finding of collateral estoppel on several grounds. We review that finding de novo, C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987), and we affirm.

In Nevada, a litigant is estopped from raising an issue in a subsequent proceeding if (1) the issue was "actually litigated" and "necessarily determined" in the prior proceeding, and (2) the parties in the two proceedings were the same or in privity. Marine Midland Bank v. Monroe, 756 P.2d 1193, 1194 (Nev.1988). If Nevada courts, applying these requirements, would preclude Haupt from relitigating the issue of probable cause, then he is similarly precluded in federal court provided that he had a full and fair opportunity to litigate the issue in the prior proceeding. See Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980).

Haupt's first objection is that the probable cause determination at the criminal preliminary hearing was an interlocutory ruling, and therefore can have no preclusive effect under Nevada law. See Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957, 960 (1980) ("The doctrine of collateral estoppel is not concerned with interlocutory rulings."); Luben Industries Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983) (ruling has no preclusive effect if it is "avowedly tentative"). We disagree with Haupt's contention. The probable cause determination at his preliminary hearing was not interlocutory in any meaningful sense; it was, rather, a final, conclusive determination of the issue. Unlike a truly interlocutory ruling (such as the denial of a motion for summary judgment at issue in Bull v. McCuskey ), the probable cause determination was immediately appealable (in the form of a petition for a writ of habeas corpus). ² Also unlike a truly interlocutory ruling, the probable cause determination, once made and affirmed via denial of habeas corpus, could not be further litigated; except in the context of a motion to suppress, Haupt could not have raised the issue again at trial or on appeal from a verdict. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975) (lack of probable cause to arrest is no defense to a criminal conviction). Thus, we conclude that the probable cause determination at Haupt's preliminary hearing, affirmed by denial of his petition for a writ of habeas corpus, was sufficiently conclusive of the issue to preclude its relitigation. See Luben, 707 F.2d at 1040 (to be final determination for collateral estoppel purposes, determination does not have to be final judgment, but merely "sufficiently firm to be accorded conclusive effect").

Next, Haupt argues that because he was acquitted, and because the probable cause determination at his preliminary hearing was not necessary to support that judgment, the issue was not "necessarily decided," as required by Nevada law. In fact, the probable cause determination was necessary to the judgment; the sole purpose of the preliminary hearing was to determine whether Haupt should have been bound over for trial. But for the probable cause determination, there would have been no trial and no judgment of acquittal. See 18 Wright, Miller, & Cooper Federal Practice and Procedure 327 (1981)...