Metropolitan News-Enterprise


Wednesday, October 20, 2010


Page 1


Panel Tosses Rights Suit by Former Football Pro


By STEVEN M. ELLIS, Staff Writer


A former NFL player whose two arson trials ended in deadlocked juries cannot sue the police officer who arrested him after his gasoline-soaked mail was found in firebombs that destroyed a Santa Monica furniture store, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A split three-judge panel threw out Anthony Smith’s civil rights suit against Santa Monica Police Department Sgt. Robert Almada, reasoning that probable cause supported Smith’s arrest and prosecution, and that exculpatory evidence Almada allegedly withheld was not material.

Smith, a first-round draft pick and defensive end for the Los Angeles and later Oakland Raiders from 1991 to 1997, was charged after mail bearing his name from a five-year period was found in three firebombs that caused nearly $3 million in damages to Simply Sofas in February 2003. He was accused of firebombing the store over a dispute with owner Marilyn Nelson involving a few hundred dollars and a damaged statue he left at the store to sell on consignment.

Unable to make bail following his arrest, Smith spent 17 months in jail as one jury trial resulted in a 7-5 jury vote for acquittal, and a second ended with an 11-1 vote to acquit. Los Angeles Superior Court Judge Keith L. Schwartz dismissed the charge in December 2004, concluding that prosecutors would never obtain a unanimous verdict despite “strong inferences” of guilt.

Almada, who had investigated four previous fires set in dumpsters behind Nelson’s stores in October and November 2002, one of which involved a similar firebomb, focused his investigation of the 2003 fire on Smith after the mail was discovered, even though witnesses to the earlier fires described different suspects.

Nelson told Almada that her business was healthy before the fire, and she did not identify Smith as a potential suspect until after Smith told Almada about the dispute. Nelson later told Almada that she saw Smith gloating outside of her boarded-up store following the fire, but Almada located a security video showing Smith at home on the day Nelson identified.

Almada used Nelson’s statement to confront Smith, who started crying and apologizing, but Almada and Smith later disputed whether Smith was acknowledging culpability for the fire or expressing concern for firefighting personnel who might have been hurt. Almada subsequently obtained an arrest warrant for Smith, who could not explain the presence of his mail in the blaze.

After the arson charge was dismissed, Smith sued Almada under 42 U.S.C. § 1983 for false arrest, malicious prosecution and failure to disclose exculpatory evidence, but U.S. District Judge A. Howard Matz of the Central District of California granted Almada summary judgment.

The judge concluded that Almada had qualified immunity because a competent officer could reasonably have determined that there was probable cause to arrest Smith for arson, and that Almada did not knowingly submit material false information to the prosecution. He also reasoned that Almada’s alleged failure to disclose that Nelson’s statement about Smith’s gloating was false did not materially affect Smith’s trial.

Smith appealed, but the Ninth Circuit affirmed in an opinion by U.S. District Judge James S. Gwin of the Northern District of Ohio, sitting by designation. Gwin rejected Smith’s contention that a judge would not have approved the arrest warrant had he known of the other fires and suspects, or of Nelson’s false statement.

Gwin rebuffed Smith’s similar challenge regarding the decision to prosecute, and he ruled that the lack of an actual conviction barred Smith from relying on the U.S. Supreme Court’s decision in Brady v. Maryland (1963) 373 U.S. 83 to bring a Sec. 1983 claim for failure to turn over exculpatory evidence. Even if he could bring such a claim after being acquitted, Gwin said, Smith failed to demonstrate that the withheld evidence was material.

Judge Ronald M. Gould joined Gwin in his opinion, but Senior Judge Dorothy W. Nelson argued that it was unnecessary for the majority to use the case to define the scope of Brady once it determined that the withheld evidence was not material.

The case is Smith v. Almada, 09-55334.


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