Ninth Circuit Reinstates Suit Over Wrongful Arrest

Wednesday, January 3, 2018

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In Mistaken Identity Case…

Ninth Circuit Reinstates Suit Over Wrongful Arrest

Panel Rejects Judge Klausner’s View That Sixth-Inch Difference in Height of Robber And That of a Woman With a Different Name and Body Weight Were Inconsequential

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of the County of Los Angeles and a Sheriff’s Office detective in a civil rights action based on the wrongful arrest of a 5-foot seven-inch woman, weighing 110 lbs., named “Tammy Cameron,” while the person being sought was “Tammy Garrison” who weighed 135 lbs. and was five-feet one inch in height.

“Under the ‘totality of the circumstances’ in this case,” a memorandum opinion filed Friday said, “a reasonable jury could find that there was no probable cause to obtain an arrest warrant for Tammy Cameron.”

Investigating a 2007 robbery in which Tammy Garrison was one of three suspects, Detective Lauren Brown ran the name “Tammy Cameron” through the Los Angeles County Regional Identification System. Cameron’s photo came up, along with her description.

That photo was identified by the victim of the robbery, leading to the arrest warrant in 2008, and an arrest of Cameron in 2013. At a preliminary hearing that year, the victim could not identify Cameron, and the court dismissed the case based on insufficient evidence.

Cameron brought suit against the county and Brown on Feb. 3, 2015, for false arrest, in violation of the Fourth Amendment right against unreasonable seizure of persons, and other bases.

However, in opposing summary judgment, the plaintiff declared she was abandoning all causes of action except false arrest, based on lack of probable cause.

Brown’s Reason Uncertain

Why Brown ran “Tammy Cameron” through the computer system is unclear. The plaintiff’s theory was that Brown misread the surname of the female suspect on a blurry report by the officer who initially investigated; the defense claimed that Brown had heard the “Cameron” mentioned as an alias, though he could not remember from whom.

It was undisputed that neither the initial report nor Brown’s supplemental report said anything about an alias, and that if an alias had, in fact, been ascertained in the course of an investigation, failing to mention that in a report would have contravened department policy.

In his Feb. 26, 2016 order granting summary judgment to the defendants, District Court Judge R. Gary Klausner of the Central District of California recited that “[t]hroughout the course of the investigation,…the alias ‘Tammy Cameron’ somehow emerged.” But the discussion of facts reveals only that the name “emerged” when the detective inputted it in the computer, and his post-investigation recollection that somebody gave him the name.

At oral argument on Dec. 5, Circuit Judge Marsha S. Berzon speculated that “for some reason,” Brown, in doing a computer check, “had a mental relapse and looked for the wrong person.” Raymond Sakai of the Glendale firm of Lawrence Beach Allen & Choi, representing the county and Brown, acknowledged that it’s a “possibility” that Brown “blew it.”

Mention of Alias

The initial investigator, Sheriff’s Deputy Raymundo Wilson, testified at trial that he had not been told by anyone that Garrison used the alias “Cameron,” and the prosecutor, Los Angeles Deputy District Attorney Thomas Trainor, likewise said on the stand that no alias was brought to his attention. The plaintiff argued in the district court that it was only after the lawsuit was brought against Brown that, to save face for running the wrong name through the computer system, he fabricated the scenario of having been tipped off by someone, whose identity he has forgotten, that Garrison was using the alias of “Cameron.”

In his order granting summary judgment, Klausner cited a 2001 Ninth Circuit opinion, Devereaux v. Abbey, dealing with fabricated evidence (and does not mention probable cause). Under that case, he said, liability was dependent on Brown persisting in an investigation notwithstanding actual awareness of Cameron’s innocence.

“At most, the evidence on this point creates a triable issue as to whether Brown fabricated the alias story after the investigation had come to an end, not whether Brown was aware of Plaintiff’s innocence during the course of investigation,” Klausner wrote. “This factual dispute, therefore, is immaterial as it does nothing to support Plaintiff’s contention that Brown was aware of her innocence but deliberately continued the investigation.”

Berzon said:

“[A] jury could disbelieve Detective Brown’s long-after-the-fact representation that a witness provided him with the name Cameron….The only evidence that Detective Brown was given the name ‘Cameron’ by a witness comes from Detective Brown’s own deposition testimony and declaration during the course of this litigation, which began years after the underlying events. Detective Brown was unable to say which witness provided the name ‘Cameron,’ when, or whether he or she did so by phone or in person.”

Disparity in Descriptions

Klausner found little significance in the differences in the descriptions of Garrison and Cameron. In his order, he wrote:

“A weight difference of merely 25 pounds is not so extreme as to alert a reasonable officer that he has identified the wrong suspect. The only remaining evidence to support Plaintiff’s argument is the height disparity. This difference, without more, is insufficient to demonstrate that Brown should have known of her innocence but nonetheless continued the investigation.”

In the opinion reversing Klausner, Berzon said:

“A reasonable jury could find that a height difference of six inches for a woman is, at a minimum, a ‘red flag’ that ‘should have led officers to question whether the person described’ in the incident report was Cameron.”

Photo Identification

Cameron asserted that the photo identification of her did not create probable cause, under the circumstances. The victim knew the given name of his female assailant was Tammy” (according to Klausner, he did not know the surname, though Berzon’s recitation differs) and the name “tame cameron” appeared below her photo.

Six photographs were displayed, in two rows, with three photos in each row, known as a “six pack.” Cameron’s photo appeared in the center of the bottom row, so that, the plaintiff argued, the name appeared to be that of the person in that photo.

Also, Cameron complained, after the victim said he couldn’t make an identification, he was prodded by Brown to “Do your best.”

Klausner responded:

“On the whole, the Court concludes as a matter of law that the photo arrangement here was not impermissibly suggestive. Plaintiff’s photo appeared alongside five other Caucasian women with similar hair length, facial features, and physiques….The name, “Tame Cameron,” does not appear directly underneath the fifth box in the six pack; rather it is situated slightly to the right and not immediately associated with Plaintiff’s picture. Moreover, [the victim] testified that he did not know the female suspect’s last name, further undermining the notion that placement of the name under the six-pack somehow influenced him to choose Plaintiff’s photo.”

Berzon’s View

Berzon saw it differently, declaring:

“A reasonable jury could find that the six-pack photo array here, in which the name ‘tame cameron’ appeared beneath Cameron’s photograph and not beneath any other photograph in the line-up, was impermissibly suggestive. Even though the witness understood the perpetrator’s name to be ‘Tammy Garrison’ not ‘tame cameron,’ he could have seen the phonetically similar first name and somewhat similar last name and drawn an implicit connection between Cameron’s photograph and the perpetrator he was asked to identify.”

The circuit judge said that the “suggestiveness of the format of the six-pack array was exacerbated by the way the identification was performed,” pointing to Brown’s admonishment to “Do your best.”

That, she said was “a directive that the witness interpreted, reasonably, to mean pick the person in the array most similar to the perpetrator.”

Berzon added:

“While the witness had ample time to view the female perpetrator at the time of the crime and paid attention to her appearance, approximately ten months had passed between the crime and the photo identification,… and, critically, the witness exhibited a low level of certainty during the identification. Also, the description given by the witness before he was shown the array did not match Cameron’s appearance as to height, an immutable feature. For these reasons, a reasonable jury could find that the photo identification does not support probable cause.”

Qualified Immunity

Klausner did not consider whether Brown enjoys qualified immunity. He said there was no need to do because no constitutional violation occurred.

He signaled, however, that if he did have need to address the issue, he would be leaning toward ruling in Brown’s favor. The judge said in his order:

“It is worth noting,…that even if Plaintiff’s rights had been violated, she would likely have a difficult time overcoming the qualified immunity bar and showing that a reasonable person in Brown’s position would have known that his actions violated clearly established law.”

Berzon instructed that on remand, whether Brown possesses qualified immunity is to be addressed, as well as whether the county faces municipal liability under the U.S. Supreme Court’s 1978 decision in Monell v. Department of Social Services of City of New York.

The case decided Friday is Cameron v. Brown, No. 16-55421.