Metropolitan News-Enterprise


Friday, May 21, 2004


Page 3


Former Adelanto Councilman’s Suit Over Criminal Charges Revived


By a MetNews Staff Writer


A civil rights suit by a former Adelanto city councilman who claims city officials conspired to charge him with embezzlement to sabotage his re-election bid and because of his Arab background was revived yesterday by the Ninth U.S. Circuit Court of Appeals.

The court said U.S. District Judge Virginia A. Phillips of the Central District of California erred in dismissing the suit for failure to state a claim. Phillips wrongly concluded that Esau Awabdy could not establish he was prosecuted without probable cause, since a San Bernardino Superior Court judge held him to answer on the charges, the Ninth Circuit said.

Awabdy was charged with receiving double reimbursement for travel and lodging expenses amounting to about $350. The criminal charges were filed two weeks before the November 2000 election.

Awabdy finished last in a field of 13 candidates for three at-large seats, while two other incumbents were re-elected. The criminal charges were later dismissed by prosecutors in the interest of justice under Penal Code Sec. 1385.

While the outcome of Awabdy’s preliminary hearing constituted prima facie evidence of probable cause, it was not conclusive and did not by itself bar his malicious prosecution action under 42 U.S.C. Sec. 1983, Judge Stephen Reinhardt said in his opinion for the Ninth Circuit panel.

“Accordingly, the Superior Court’s decision to hold Awabdy to answer after a preliminary hearing would not prevent him from maintaining his [Sec.] 1983 malicious prosecution claim if he is able to prove the allegations in his complaint that the criminal proceedings were initiated on the basis of the defendants’ intentional and knowingly false accusations and other malicious conduct,” Reinhardt wrote.

Phillips also erred in holding that Awabdy could not maintain a malicious prosecution action under Sec. 1983 because he did not allege a violation of his rights under the Fourth Amendment, the judge said. That ruling was based on a misunderstanding of Albright v. Oliver, 510 U.S. 266 (1994), Reinhardt explained.

Citing, among other cases, Poppell v. City of San Diego, 149 F.3d 951 (9th Cir. 1998), the appellate jurist declared:

 “We do not interpret Albright as establishing a rule that Fourth Amendment violations are the only proper grounds for malicious prosecution claims under [Sec.] 1983. In decisions subsequent to Albright, we have continued to follow our earlier precedents establishing that ‘malicious prosecution with the intent to deprive a person of equal protection of the law or otherwise to subject a person to a denial of constitutional rights is cognizable under [Sec.] 1983.’”

Phillips also should have granted Awabdy leave to amend his complaint to state direct causes of action—as distinct from causes of action based on a malicious prosecution theory—under Sec. 1983 for violation of his free speech and equal protection rights, Reinhardt added.

“Awabdy’s complaint, liberally construed, raises claims that the defendant

city officials made false accusations and otherwise unlawfully conspired against him, with the result that criminal proceedings were wrongfully initiated (1) in order to discourage his political activity and other protected First Amendment conduct as a citizen and an Adelanto city councilmember, and (2) on account of his Arab ethnicity in violation of his Fourteenth Amendment right to equal protection,” the judge explained.

Judge Kim McLane Wardlaw and Senior Judge David R. Thompson concurred. The case is Awabdy v. City Of Adelanto, 02-57118.


Copyright 2004, Metropolitan News Company