Kennedy v. Los Angeles Police Dept.

Citation901 F.2d 702
Decision Date09 April 1990
Docket NumberNos. 87-6316,87-6400,s. 87-6316
PartiesKaren KENNEDY, Plaintiff-Appellee, v. LOS ANGELES POLICE DEPARTMENT; City of Los Angeles; James J. King; Stanley A. Schott, Defendants-Appellants. , and 87-6602.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard M. Helgeson, Asst. City Atty., Los Angeles, Cal., for defendants-appellants.

Joan W. Howarth and Pamela R. Lawson, ACLU Foundation of Southern California, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HALL and LEAVY, Circuit Judges, and GEORGE *, District Judge.

ORDER

The opinion published in 887 F.2d 920 shall be amended at page 934 as follows:

Grand theft, a felony, thus properly could be considered in deciding whether to search Kennedy. And in some cases, the charge itself may give rise to reasonable suspicion. See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir.1989) (The felony of grand theft auto "is sufficiently associated with violence to justify a visual strip search.") (footnote omitted); ....

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed.R.App.P. 35.)

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

Karen Kennedy brought a civil rights action under section 1983 against, among others, the Los Angeles Police Department and two of its officers, James J. King and Stanley A. Schott. The case reached the jury, who after determining that Kennedy's rights were violated, awarded her compensatory and punitive damages.

I

Karen Kennedy and Karen Houghton were roommates in a two-bedroom apartment. The two women had entered into a two-year lease on November 15, 1982. On January 21, 1983, Houghton, without prior warning, left Kennedy a note indicating that she would be vacating the apartment the following morning. According to Kennedy, Houghton owed her a total of $694 for her portion of rent and utilities and for bounced checks.

The following morning Houghton, with her parents and grandparents, arrived at the apartment with a car trailer to retrieve her belongings. Kennedy testified that she unsuccessfully attempted to speak with Houghton about their differences. Houghton refused to pay the debt before departing and told Kennedy that she was moving to La Jolla, California (although in fact she was moving to Beverly Hills). Houghton left no forwarding address.

Houghton made several trips to complete her move. During one of the trips, Kennedy moved two of Houghton's wicker chairs into Kennedy's bedroom and Houghton's television into the living room behind some drapes. Kennedy retained these items as "security" for the debt Houghton owed her. Kennedy then installed a lockout device on the front door to prevent Houghton from entering the apartment with her key. When Houghton returned, she noticed that some of her belongings were missing. She called the police.

Officers King and Schott responded to the call. They demanded entry into the apartment. Kennedy was with her daughter and a friend of her daughter. The officers then spoke with Kennedy, who explained that she intended to hold the property as security for money Houghton owed her. The officers ordered Kennedy to remain on the sofa while they searched the apartment for the missing items. 1 The officers' search was unsuccessful.

Officers King and Schott arrested Kennedy for grand theft, a felony, and escorted her to the Van Nuys jail. At the jail, Kennedy was forced to submit to a body-cavity search. After stripping off all her clothing, Kennedy was required to expose her vaginal and anal cavities so that the two women officers could determine whether Kennedy was concealing drugs or weapons. She was not.

In a special verdict, the jury determined that King and Schott were not entitled to qualified immunity and had violated Kennedy's constitutional rights when they arrested her. The jury awarded $5,000 in actual damages against each officer, as well as $3,000 in punitive damages against King and $1,000 in punitive damages against Schott. The jury also determined that Kennedy's constitutional rights were violated because of the City of Los Angeles' policy to subject all those arrested for felonies to a body-cavity search. The jury awarded $25,000 in actual damages against the City.

Appellants timely appeal from the jury's determination. The district court had jurisdiction under 28 U.S.C. Secs. 1331, 1343(4). This court has jurisdiction under 28 U.S.C. Sec. 1291.

II

At the end of Kennedy's case, and at the end of trial, appellants moved for a directed verdict. On appeal, the officers contend that the district court erred in failing to direct a verdict in their favor. They advance two bases to support this contention: (1) that probable cause to arrest was established as a matter of law; and (2) that they were entitled to qualified immunity as a matter of law.

A

For Kennedy to prevail under her section 1983 claim, she must establish that (1) she was deprived of a right secured by the Constitution or laws of the United States; and (2) the deprivation was caused by state action. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Gorenc v. Salt River Project Agric. Improvement and Power Dist., 869 F.2d 503, 505 (9th Cir.1989). The appellants contend that the district court erred in denying their motions for a directed verdict on the ground that probable cause to arrest was established as a matter of law. Appellants thus conclude that the arrest did not violate the Constitution.

"A directed verdict ... should not be granted unless 'the evidence permits only one reasonable conclusion as to the verdict.' The evidence must be viewed in the light most favorable to the prevailing party and all inferences must be drawn in that party's favor." Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.) (quoting Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir.1977)), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980). In a section 1983 action, probable cause generally is a jury question. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984). However, a directed verdict on the issue of probable cause is proper if no reasonable jury could determine that the officers did not have probable cause to arrest. Id. " 'Probable cause exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution and prudence in the belief that the defendant is committing or has committed a crime.' " Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985) (quoting State v. Lemire, 121 N.H. 1, 424 A.2d 1135, 1138 (1981)).

The officers arrested Kennedy for committing grand theft, a violation of California Penal Code Sec. 487. Under California law, theft is defined in the following manner: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another ... is guilty of theft." Cal.Penal Code Sec. 484(a) (West 1988). Grand theft occurs "[w]hen the money, labor or real or personal property taken is of a value exceeding four hundred dollars ($400)...." Id. at Sec. 487.

The district court recognized, and the appellants do not contest, that an element of the crime of grand theft is the specific intent permanently to deprive an owner of her property. See People v. Kageler, 32 Cal.App.3d 738, 745; 108 Cal.Rptr. 235, 239 (1973). The court instructed the jury that if it determined that the officers reasonably should have known that Kennedy "merely intended to take temporary possession of the property belonging to Houghton, for example, as security for a debt owed by Houghton," they did not have probable cause. Appellants do not challenge this instruction. Part of the probable cause analysis must be whether the officers could believe that Kennedy had the necessary intent.

As part of the investigation, Schott discovered from Houghton that Kennedy had told Houghton that she was keeping her property as security until Houghton paid Kennedy the money she was owed. Schott admitted that he "probably" passed this information on to King when King arrived at the scene. And when King and Schott confronted Kennedy in her apartment, Kennedy and a friend of her daughter explained to the officers that Kennedy was holding the property as security until Houghton paid her debts.

Upon reviewing the facts in this case, giving Kennedy the benefit of all reasonable inferences that may be drawn from the evidence presented at trial, we conclude that there was sufficient evidence to support the jury's determination that probable cause for an arrest was lacking. The officers do not contend on appeal (nor would the record support) that they believed Kennedy was holding Houghton's property for any purpose other than as security for a debt allegedly owed. Therefore, there was no reasonable basis from which anyone could believe that Kennedy had the specific intent permanently to deprive Houghton of her property. On the contrary, the jury quite properly concluded that a prudent person would not have believed that Kennedy, who was entangled in an ordinary neighborhood dispute, had committed grand theft. See United States v. Hoyos, 868 F.2d 1131, 1136 (9th Cir.1989). Consequently, the district court properly refused to direct a verdict for the appellants.

B

The appellants next contend that the district court erred in refusing to grant a directed verdict on the ground of qualified immunity. Police officers "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or...

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