Metropolitan News-Enterprise


Thursday, May 29, 2008


Page 3


Ninth Circuit Revives Retaliation Suit Against Upland Police Chief


By SHERRI M. OKAMOTO, Staff Writer


A plaintiff’s First Amendment-based retaliatory prosecution and false arrest claims against two Upland police officers may go forward to trial, the Ninth Circuit Court of Appeals held yesterday.

Reversing the district court’s grant of summary judgment in favor of the officers, the judges  concluded that a San Bernardino prosecutor’s decision to file a criminal complaint against Kenneth Beck despite  what the plaintiff says is a lack of probable cause did not shield the officers from liability.

According to Beck’s complaint, after the City of Upland granted a no-bid public works contract to an out-of-town competitor of Beck’s business, Dineen Trucking, Beck openly voiced his suspicions that there were irregularities in the contracting process. Shortly thereafter, three city officials served Beck with a notice of zoning violations, signed by Upland Police Chief Martin Thouvenell.

The next week, Beck claims, he approached Thouvenell and Sgt. Jeff Mendenhall at a social function and a brief, heated discussion ensued during which Thouvenell allegedly said “we should have taken care of you a long time ago.”

Beck retorted with a version of the statement: “You don’t know who you’re dealing with,” which ended the conversation.

Both officers later declared that they believed Beck was threatening their “position or employment” as police officers in violation of Penal Code Sec. 69. Mendenhall prepared a police report on the incident and presented a report to the District Attorney’s Office which omitted Thouvenell’s alleged statement to Beck.

Felony Complaint

San Bernardino Deputy District Attorney Joseph Gaetano reviewed the report and generated a felony criminal complaint against Beck. While being deposed, Gaetano asserted the work-product privilege when asked whether he felt any “pressure” to file charges against Beck.

The criminal charges were later set aside, and a few months later, Upland dismissed the zoning charges against Beck as well.  Beck then filed suit pursuant to 42 U.S.C. Sec.1983, but District Judge Audrey B. Collins of the Central District of California concluded Gaetano’s decision to prepare the criminal complaint was a superceding independent action which immunized the defendants from liability for Beck’s arrest and detention.

Ninth Circuit Judge Marsha S. Berzon disagreed, concluding that causation issues arising from the criminal complaint did not preclude Beck’s constitutional claims.

Citing Hartman v. Moore, (2006) 547 U.S. 250, she explained that for First Amendment retaliatory prosecution cases, if a plaintiff can prove that the officers who secured his arrest or prosecution lacked probable cause and were motivated by retaliation against the plaintiff’s protected speech, the plaintiff’s suit can go forward.

“Proof of the absence of probable cause, it appears, is the sole factor necessary [under Hartman],” Berzon wrote. “Applying that reasoning, it could be held that that sole factor would also be sufficient in the Fourth Amendment false arrest context,” she suggested because the question of causation is “essentially identical” in both contexts.

However, Berzon continued, Hartman did not involve a Fourth Amendment-based cause of action, and therefore she reasoned Smiddy v.Varney, (9th Cir. 1981) 665 F.2d 261 applies to any other constitutional tort case, including Fourth-Amendment based claims.

Evidentiary Presumption

Smiddy provides an evidentiary presumption that a prosecutor filing a criminal complaint exercised independent judgment in determining the existence of probable cause for an arrest, which immunizes investigating officers from any post-complaint damages, Berzon explained.

Noting that Sec. 69 only criminalizes threats of unlawful violence used in an attempt to deter an officer from his duties, Berzon concluded that Beck’s statement could not have been understood to threaten violence, and therefore, probable cause did not support his arrest.

Berzon also concluded the issue of retaliation was litigated in the district court because Beck’s complaint had argued that the officers were motivated be retaliatory animus to create a false case against him. Based on the record, Berzon said a rational jury could find that Beck’s arrest was based on personal retaliatory animus.

Because Gaetano invoked privilege to shield relevant evidence concerning his decision to prosecute, Berzon reasoned Beck could not be required to come forward with evidence to rebut the presumption of Gaetano’s independent judgment and upon shifting the burden to the officers, she concluded a reasonable jury could find the officers did not satisfy this burden of proof.

Senior District Court Judge James K. Singleton of the District of Alaska, sitting by designation, joined Berzon in her opinion. Justice Sandra S. Ikuta concurred in part and dissented in part.

Opinion Criticized

Ikuta criticized Berzon’s opinion for resolving the issue of retaliatory intent and whether Smiddy immunized the officers from liability under Beck’s Fourth Amendment false arrest claim. These issues, Ikuta argued, involved mixed issues of law and fact which were inappropriate for the court to address for the first time on appeal in the absence of development by the parties or a ruling by the district court.

Beck’s appellate attorney Thomas R. Freeman of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, & Lincenberg, P.C. said his client was very pleased with the decision. Although the opinion was “very technical,” he said, “we didn’t win on a technicality, we won on two separate grounds.”

Defense counsel Samuel J. Wells said the case turned on “one little peculiarity.” He suggested that the case might have been decided differently if Gaetano had not asserted the work-product privilege, and opined that the case may be terminated again if Gaetano testifies that he did not feel pressured to file the case.

Gaetano declined to comment.

The case is Beck v. City of Upland, 05-56901.


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