Friday, March 6, 2015
Court Upholds Judgment for Glendale in Suit Over Lawyer’s Arrest
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a judgment absolving the City of Glendale and two officers of liability resulting from the arrest of attorney Robert Yousefian.
Judge Stephen Reinhardt, writing for the panel, agreed that one of the defendants, former Officer Michael Lizarraga, engaged in “reprehensible” conduct by having an affair with Yousefian’s wife following his arrest, and actively concealing it from his superiors and from the prosecutors in Yousefian’s case. But that does not undermine the district judge’s conclusion that there was probable cause for Yousefian’s arrest on charges of abusing and assaulting his elderly father-in-law, he said.
The arrest occurred in August 2007, after Lizarraga and three other officers responded to the scene of an altercation between the two men. Yousefian, who called police, claimed that the older man attacked him with his cane.
The dispute stemmed from marital problems between Yousefian and his wife. He said he called his in-laws to inquire about the whereabouts of his wife and children after they hadn’t been home for a time.
When his in-laws came over, they got into an argument. Both he and his father-in-law were injured in the ensuing scuffle, he alleged, but police only arrested him.
Yousefian’s wife subsequently provided Lizarraga with drugs she allegedly found in her husband’s car. He was charged with assault and elder abuse, as well as two counts of drug possession, and released on his own recognizance.
At a preliminary hearing, the magistrate found probable cause with respect to the assault and elder abuse charges, but dismissed the drug charges after concluding the defendant’s wife fabricated evidence. In 2010, Yousefian’s attorney obtained copies of text messages between Lizarraga and Nora Yousefian, leading to the disclosure that they had an affair lasting about a year after her husband’s arrest, and that he had told her to lie if asked about it.
At trial, Lizarraga characterized the relationship as “friends with benefits.” The jury acquitted Yousefian on both of the remaining counts.
In firing Lizarraga from the department, the city’s police chief determined that while his actions did not relate to the merits of the charges, they injected collateral issues into the case and were unbecoming an officer.
In 2011, Yousefian filed a civil rights suit against the city, Lizarraga, and Detective Petros Kmbikya, who conducted a post-arrest investigation of the charges. He claimed there was “overwhelming evidence” of his innocence, and that the prosecution was malicious and deprived him of his constitutional rights in violation of 42 U.S.C. §1983.
District Judge’s Ruling
U.S. District Judge Dolly M. Gee, in granting summary judgment to the defendants, concluded that there was probable cause for the arrest. She noted that the older man was bleeding, and that it was undisputed that Yousefian hit him with a heavy object, whereas Yousefian’s claim of self-defense was in dispute, and that the attorney did not appear seriously injured and refused medical attention.
“A police officer who finds an elderly and infirm man bleeding profusely from a head wound admittedly inflicted by a younger man without significant injuries will have probable cause to believe that the latter has committed assault,” the jurist wrote. “…Because Lizarraga’s romantic relationship with Nora began after all of the evidence relating to the altercation had been collected and documented in official reports (by Lizarraga and the other responding officers), his later misconduct does nothing to undermine the existence of probable cause.”
As for the drug charges, Reinhardt said, even if there was no probable cause, there would be no basis for a civil rights claim because the only arguable injury was that Yousefian’s liberty was restricted while he was on ROR, and he would have been subject to those restrictions anyway because of his lawful arrest on the other charges.
The conclusion that Yousefian was not damaged as a result of the aborted prosecution of the drug charges, the court said, precludes finding that Kmbikyan was liable, since he was only accused of failing to advise prosecutors of exculpatory evidence related to the drug charges, the court held. And the lack of liability on the part of the officers precludes a finding of liability on the part of the city, Reinhardt noted.
Judge Ronald M. Gould and visiting Senior District Judge Robert W. Gettleman of the Northern District of Illinois.
The case was argued on appeal Mark J. Geragos of Geragos & Geragos for the plaintiff, Senior Assistant City Attorney Ann Marie Maurer for the City of Glendale and Kmbikyan, and David D. Lawrence of Lawrence Beach Allen & Choi for Lizarraga.
The case is Yousefian v. City of Glendale, 12-57269.
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