Weiner v. San Diego County

• Decision Date: 27 April 2000
• Docket Number: No. 98-55752,98-55752
• Citation: 210 F.3d 1025
• Parties: (9th Cir. 2000) MURRAY WEINER,Plaintiff-Appellant, v. SAN DIEGO COUNTY, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1025

210 F.3d 1025 (9th Cir. 2000)

MURRAY WEINER,Plaintiff-Appellant, v. SAN DIEGO COUNTY, Defendant-Appellee.

No. 98-55752

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 9, 1999

Filed April 27, 2000

COUNSEL: Thomas R. Laube, Sandler, Lasry, Laube, Byer & Valdez, San Diego, California, for the plaintiff-appellant.

Deborah Peterson, Deputy County Counsel, San Diego, California, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-97-00349-MLH

Before: Betty B. Fletcher, Alex Kozinski and David R. Thompson, Circuit Judges.

THOMPSON, Circuit Judge:

OVERVIEW

In 1994, the Appellant Murray Weiner was tried and convicted of murder in California state court. He was granted a new trial. Before the retrial, the district attorney's office for San Diego County (the "County") allegedly hid blood evidence from Weiner's defense team. In addition, a new blood test undermined the prosecution's original theory of the case. The district attorney's office, nonetheless, continued with the second trial. The trial was before a jury and Weiner was acquitted. After Weiner's acquittal, the district attorney, responding to a query from the press, stated that"[t]his case just proves that cases, unlike fine wine, get worse rather than better, with age."

Weiner then filed the present action in the federal district court against the County. He sought damages under 42 U.S.C. S 1983 for what he alleged was a wrongful prosecution and defamation in violation of his civil rights. He also sought damages for defamation under state law. The district court granted the County's motion for summary judgment. Weiner appeals that judgment.

We have jurisdiction under 28 U.S.C. S 1291. We conclude that the district attorney acted on behalf of the state, not the County, in deciding to prosecute Weiner, and as a result Weiner's S 1983 claim against the County for his alleged wrongful prosecution fails. With regard to the defamation claims, the alleged defamatory statement -that implied Weiner was acquitted only because the case against him became stale -was the expression of an opinion and as such it will not support a defamation action under California law. Insofar as Weiner attempted to predicate a S 1983 claim on the allegedly defamatory statement, that claim fails because Weiner made no showing of a violation of the Constitution or federal law. See Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). Accordingly, we affirm the district court.

BACKGROUND

In November 1992, Weiner was arrested and charged with the murder of Robert Evans. At trial, the prosecution theorized that Weiner lured Evans into a shed rented by Weiner, killed him, cut his body into pieces, and disposed of the pieces in a field a few miles away.

The prosecution, in its case-in-chief, relied on four of thirty-nine blood spots found in Weiner's shed. The prosecution tested three of the four blood spots by blood grouping, a test which cannot conclusively determine whether the tested blood comes from a particular individual. The test revealed that the three spots had the same 1.1, 1.1 characteristic as Evans's blood. The prosecution tested the fourth blood spot using an RFLP test, which, unlike the blood grouping test, can determine whether blood comes from a particular individual. The RFLP test determined that the fourth blood spot was not from Evans. The prosecution chose not to test the fourth spot for blood grouping to determine whether it had the same 1.1, 1.1 characteristic as the other three blood spots.

Because only two to four percent of the population has the 1.1, 1.1 characteristic, Weiner asserted that if all four blood spots had that characteristic, then all four were probably from the same person, which the RFLP test on the fourth blood spot had determined was not Evans. Although it had not conducted a blood grouping test on the fourth spot, the prosecution argued at trial that the fourth blood spot was not from the same individual as the other three. On February 16, 1994, Weiner was found guilty of murdering Evans.

The trial court, however, granted Weiner a new trial. Weiner asserts that before the second trial the prosecution hired a blood spatter expert who concluded that all four blood spots were from the same person. Further, Weiner contends the prosecution attempted to hide this expert from him and hid the fourth blood spot to prevent Weiner from testing it for the 1.1, 1.1 characteristic. The fourth blood spot was eventually tested and was found to have the same 1.1, 1.1 characteristic as the other three. Because the fourth blood spot came from someone other than Evans, this meant the other three spots probably also came from someone other than Evans and left the prosecutor without blood evidence that Evans was ever in Weiner's shed.

Despite these new findings, the district attorney decided to go forward with the second trial. On August 15, 1996, a jury in the second trial found Weiner not guilty of Evans's murder. After the verdict, a reporter interviewed Weiner's defense counsel, Kathleen Coyne, who expressed her frustration with the district attorney's office because it had ignored the new scientific evidence and had gone ahead with the second trial. The reporter's article went on to state that:

District Attorney Paul Pfingst vehemently disagreed with Coyne's evaluation of the genetic evidence. He said the case was essentially the same as the first trial and that to dismiss the charges would have been ridiculous, given the first jury's verdict. "This just proves that cases, unlike fine wine, get worse rather than better, with age," Pfingst said.

On February 28, 1997, Weiner filed the present action against the County seeking damages under 42 U.S.C.S 1983 for wrongful prosecution, and for defamation caused by Pfingst's statement to the press. Weiner also sought damages for defamation under California law. The district court granted summary judgment in favor of the County on all claims, and this appeal followed.

ANALYSIS

I. Standard of Review

We review de novo a district court's decision to grant summary judgment. See Underwager v. Channel 9 Australia, 69 F.3d 361, 365 (9th Cir. 1995).

II. Section 1983 Liability for Wrongful Prosecution

Pursuant to 42 U.S.C. S 1983, a local government may be liable for constitutional torts committed by its officials according to municipal policy, practice, or custom. See Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978). To hold a local government liable for an official's conduct, a plaintiff must first establish that the official (1) had final policymaking authority "concerning the action alleged to have caused the particular constitutional or statutory violation at issue" and (2) was the policymaker for the local governing body for the purposes of the particular act. McMillian v. Monroe County Alabama, 520 U.S. 781, 785 (1997) (internal quotation marks omitted) (noting that an official can be the policymaker for the state for one type of act and the policymaker for the local government for another type of act). In this case, the parties concede the district attorney is the final decision-maker in determining whether to proceed with a criminal prosecution. The question, therefore, is whether the district attorney acted as a county official or as a state official when he decided to proceed with Weiner's criminal prosecution. The answer to that question is dependent on state law. See id. at 786.

In McMillian, the Court stated that a state's statement that an individual is a state or county official without analyzing his actual role does not settle the question for Section 1983 purposes. Rather, the official's "actual function . . . in a particular area," as defined by state law, must be evaluated to determine whether he acts for the state or the county. Id. Accordingly, the Court in McMillian reviewed Alabama's constitution, statutes, and case law to determine whether a county sheriff was a state or county official for purposes of S 1983 liability. See id. at 787-93. The Court found it significant that Alabama amended its constitution to list county sheriffs as executive officers who could be impeached by the State Supreme Court upon the order of the governor, which was the same procedure used for other state officials. See id. at 788. Further, the Court stated it was critical that the Alabama Supreme Court had similarly interpreted Alabama's constitution as prohibiting county liability predicated upon the doctrine of respondeat superior. See id. at 789. The Court also focused on the fact that sheriffs in Alabama were given complete authority to enforce state criminal laws in the county and that county commissions could not instruct them in these duties.

On balance, the Court determined that, under Alabama law, a county sheriff was a state official when carrying out his law enforcement duties even though the county paid his salary and provided his equipment, the county's citizens elected him, the Alabama code listed him as a county official, and his jurisdiction was limited to the county's borders. See id. at 791-93.

In Pitts v. County of Kern, 949 P.2d 920 (Cal. 1998), the California Supreme Court, following McMillian, analyzed California law and held that a district attorney was a state official for purposes of S 1983 liability while acting in his prosecutorial capacity. See id. at 928-34. The California Supreme Court is the ultimate interpreter of California state law. See Johnson v. Fankell, 520 U.S. 911, 916 (1997). This does not mean, however, that we must blindly accept its balancing of the different provisions of state law in determining liability under S 1983. In McMillian, the Court stated that "our inquiry is dependent on an analysis of state law," which does not mean "that state law can answer the question for us by,...