Roe v. City and County of San Francisco, 96-15590
| Decision Date | 24 March 1997 |
| Docket Number | No. 96-15590,96-15590 |
| Citation | 109 F.3d 578 |
| Parties | 97 Cal. Daily Op. Serv. 2087, 97 Daily Journal D.A.R. 3848 John ROE, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; Donna Lee; Arlo Smith, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul Kleven, Law Offices of Paul Kleven, Berkeley, California, for plaintiff-appellant.
Kimon Manolius, Deputy City Attorney, San Francisco, California, for defendants-appellees.
Appeal from the United States District Court for the Northern District of California, William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-94-04266-WHO.
Before: SNEED, LEAVY and THOMAS, Circuit Judges.
California State Police Officer John Roe seeks damages and injunctive relief for the refusal of the City and County of San Francisco to prosecute his cases without corroborating evidence, allegedly in retaliation for his exercise of free speech. The district court granted summary judgment. We affirm.
John Roe is a fictitious name for a California Police Officer who worked primarily in San Francisco from 1990 to 1993. In July 1993, Officer Roe observed a suspect smoking marijuana. He conducted a search, found methamphetamine and executed an arrest. Assistant District Attorney Louis Lipsett dismissed the case because he believed Roe's search and questioning of the suspect had been improper. Roe disagreed and discussed the matter with Supervising District Attorney Donna Lee, then in charge of the narcotics prosecution unit. Ms. Lee told Roe she agreed with the decision to dismiss and that Roe's legal analysis was incorrect. However, she promised to do further research and get back to him. On August 2, 1993, Roe wrote Lee a memorandum which stated:
After our conversation of last month, I spent some time and researched the issues we discussed. Frankly, I have more spare As I stated earlier, I can understand your office's decision not to file criminal charges in the JAFARINEJAD case, in the interest of justice.
time than you probably do, so I compiled some cases for you.
I have attached some case cites for your perusal. In the event another officer makes an arrest with similar search circumstances, and the case is worth pursuing, this may save you some time in preparing for any motion to suppress that may be filed by the defense.
Please contact me when you get this. I have copies of the actual cases and can get these to you if you would like.
Attached to the memo were legal questions and case summaries which appeared to be from prepared materials. Roe contends his purpose "was to assist the recipients in the event that a similar situation arose in the future regarding these search and seizure issues."
According to affidavits submitted by Roe, Lee became annoyed upon receiving the memo and stated to third parties that it was unusual to receive a legal opinion from a police officer and that she believed Roe was trying to "show her up."
Later that August, Lee refused to prosecute another case investigated by Roe. After seizing contraband narcotics, Roe had retained the narcotics for four hours to perform his own testing before he sent the evidence to the criminal laboratory. Lee believed this to be an irregular procedure from which a jury might infer that Roe had tampered with the evidence.
In late September, Assistant District Attorney John Farrell dismissed one of Roe's cases in midtrial because Farrell thought Roe had "lied under oath." Farrell believed that Roe's version of the arrest at trial was different from his testimony at two prior pre-trial hearings. When Farrell pointed out these inconsistencies to Roe after his direct examination and asked Roe what really happened, Roe responded that he could not remember. Roe felt the inconsistencies were minor and attributable to Farrell's refusal to provide him with a transcript of the prior proceedings.
Farrell subsequently discussed the dismissal with Criminal Division Chief Linda Klee. She told Farrell that she agreed with the decision not to go forward with untruthful testimony. Klee wanted to review the relevant transcripts personally and requested that Farrell prepare a memo detailing his observations.
On October 4, 1993, Farrell sent the requested memo to Lee and Klee stating, in relevant part:
On September 23, 1993, I dismissed our case against Richard Dillon after the completion of the arresting officer's direct examination. I dismissed the case because the officer's testimony was not credible. I did not think the officer was telling the truth.
....
I was disturbed over the officer's conflicting versions of events, especially since he had been so specific and so sure of his testimony each time. Each version appeared to be constructed to advance the officer's cause.
The version given at trial seemed designed to help prove the key issue at trial: whether the defendant knew that there was methamphetamine in the knapsack. The version given at the motion to suppress hearing appeared to be altered to overcome a wrong-headed issue raised in the defendant's moving papers: that the officer improperly questioned the defendant who was in custody about drugs and that this questioning is what led to the discovery of the drugs.
....
Officer [Roe] worked hard on preparing for this trial and showed dedication in his work. I believe, however, that he was overzealous and tailored his testimony at different stages of the proceedings because he thought it would help our prosecution of this case. That tailoring of testimony resulted in the dismissal of charges against Richard Dillon.
When he authored the memo and dismissed the case, Farrell did not know of Roe's prior communication to Lee.
Klee reviewed the transcripts and concluded "we had an officer who was telling a lie." She instructed Farrell to inform Roe's supervisors. Subsequently, Lee requested Klee's guidance on how Roe's future cases should be handled. Klee informed Lee she should require corroboration, consistent with the procedure used in a similar situation involving questionable testimony from a security guard. Klee testified that at this time, she was not aware of Roe's prior communication with Lee.
These events resulted in an internal investigation by the California State Police and Roe's temporary transfer to Oakland. At the conclusion of the investigation, California State Police Chief Duane Lowe wrote District Attorney Arlo Smith on May 24, 1994 in relevant part:
We discovered inconsistent testimony given by [Roe] at different stages of his testimony. [Roe] acknowledged that he failed to bring his reports and notes to the trial court. He states that Farrell refused to permit him to review previous testimony and he later informed Farrell that he could not remember exactly what happened. While it is my position that any deliberate misrepresentation or intentional dishonesty when testifying in court is not only illegal but also totally unacceptable, after close evaluation, we were unable to sustain that he intentionally lied about what had occurred. It is my understanding that a number of prosecutors in your office acknowledge they have experienced no problem with [Roe's] testimony in other cases where he was involved.
We have been informed that Donna Lee is now refusing to file a case in which [Roe] is the arresting officer.... My I.A. Commander, Lieutenant Les Stuhr, spoke on the telephone with Linda Klee and she informed Stuhr that a memo has been circulated or distributed in the District Attorney's office by a member of your staff which states that [Roe] lied on the witness stand and because of such a memo, they are compelled to notify the Defense in any case where [Roe] is to testify. She also informed Stuhr that [Roe] should leave San Francisco because the problem will never go away!
Lowe urged District Attorney Smith to review the case and to interview Roe. Chief Lowe also inquired as to the District Attorney's Office official policy concerning the filing of Roe's cases.
Because the investigation had concluded, Roe was transferred back to San Francisco. Lee refused to file any cases referred by Roe absent additional corroborating evidence or testimony.
On June 16, 1994, the principals conferred to discuss the situation. Attending were District Attorney Smith, Supervising District Attorney Lee, Chief Assistant District Attorney Robert Podesta, Officer Roe, California State Police Commander Byrd, California State Lieutenant Stuhr and Roe's attorney. Roe testified that Roe requested that the District Attorney rescind the policy. No decisions were made at the meeting.
Subsequently, Smith informed the California State Police that there would be no change in policy and no prosecutions of Roe's cases would be made without corroborating evidence. On July 29, 1994, California State Police Deputy Chief Michael Vega reassigned Roe to Oakland, noting:
The San Francisco District Attorney's Office has placed restrictions and conditions on your ability to provide testimony on criminal cases in the San Francisco County court system. As such, you will be unable to fully complete your duties as a State Police Officer.
Roe then filed this action seeking equitable and monetary relief in state court against Lee, Smith, the City and County of San Francisco and John Does 1-30, claiming, inter alia, that the defendants had retaliated against him for the circulation of the legal memorandum in violation of his right to free speech. Defendants removed the case to
federal district court on federal question jurisdiction. From the district court's grant of summary judgment, Roe appeals.
We review a grant of summary judgment de novo....
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