Monday, September 9, 2019
Majority Says Indictment Creates Presumption of Probable Cause for Arrest, but Facts Exist Under Which Presumption Could Be Found Rebutted; Dissenter Argues Appellants Did Not Raise Issue of Rebuttability
By a MetNews Staff Writer
A majority of a three-judge Ninth U.S. Circuit Court of Appeals panel has reversed a summary judgment in favor of the government in an action for false arrest and other torts, holding that the District Court erred in finding probable cause to make the arrest, with Circuit Judge Mark J. Bennett protesting in a dissent that the majority interjected an issue the plaintiff did not raise.
The majority was comprised of Circuit Judge Kim Wardlaw and William K. Sessions III, a senior judge of the United States District Court for the District of Vermont, sitting by designation. Both were appointees of President Bill Clinton; Bennett received his judgeship from President Donald Trump.
Thursday’s memorandum opinion by Wardlaw and Sessions reinstates a complaint by Andrew and Teresa DeGroot based on the arrest of Andrew DeGroot for assaulting, resisting, opposing, impeding, intimidating, or interfering with an officer in violation of 18 U.S.C. §111(a)(1). A grand jury indicted him on that charge; a petit jury acquitted him.
The DeGroots on Sept. 25, 2015, sued the government and six border patrol agents for damages, on various theories. Prior to the award of summary judgment, the government had become, as the result of rulings, the sole defendant and the causes of action had been pared to claims under state law for false arrest, false imprisonment, negligence and negligent infliction of emotional distress, intentional infliction of emotional distress, and assault and battery.
It was undisputed that on March 27, 2013, Andrew DeGroot, driving a tractor-trailer, was stopped by agents at a checkpoint; he made an obscene gesture and recorded the agents’ reactions on his cellphone; agent Enrique Penagos approached the vehicle.
There were conflicting accounts of what happened next. According to the agent’s testimony, Andrew DeGroot punched him in the face; Andrew DeGroot’s version was that Penagos snatched the cell phone from him and he grabbed it back.
He was arrested and, when he got his cell phone back, his recording of the agents was allegedly missing from it.
District Court’s Decision
District Court Judge Marilyn L. Huff of the Southern District of California on Sept. 5, 2017, granted summary judgment in favor of the defendants.
“Probable cause is a complete defense to a false arrest and imprisonment claim,” she recited.
Because Andrew DeGroot admitted that he grabbed his phone back after Penagos took it from him, “it was reasonable for Agent Penagos to believe that DeGroot had forcibly resisted, opposed, or impeded him—thereby justifying the arrest,” Huff wrote, adding:
“Furthermore, probable cause is supported by the fact that a grand jury indicted DeGroot.”
She also granted summary judgment to the defendants on claims of negligence and negligent infliction of emotional distress, saying that probable cause is also a defense to those allegations.
Ninth Circuit’s Majority
The Ninth Circuit panel’s majority, in reversing, said:
“[I]n keeping with the summary judgment standard, the district court properly accepted Mr. DeGroot’s testimony as most favorable to the non-moving party….
“The district court erred, however, in finding probable cause. According to Mr. DeGroot’s account, the sole act of resistance consisted of pulling the cell phone away from Agent Penagos. We have held that a violation of 18 U.S.C. § 111(a) requires more than mere resistance, and instead requires an assault….To commit an assault, Mr. DeGroot must have engaged in ‘either a willful attempt to inflict injury upon the person of another, or...a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.’…Reasonable jurors, drawing all inferences in favor of the DeGroots, could conclude that pulling the phone away from Agent Penagos was not an attempt to inflict injury, and similarly would not have caused Agent Penagos to reasonably fear immediate harm.”
Effect of Indictment
The majority’s opinion says that an indictment “constitutes prima facie evidence of probable cause, and may be rebutted.”
Rebuttal testimony was presented, the opinion says—in particular, in the form of Andrew DeGroot’s testimony—yet Huff “made no mention of any such rebuttal evidence, concluding only that a grand jury indictment is prima facie evidence of probable cause.”
The majority declared:
“Mr. DeGroot’s sworn testimony is in direct conflict with the grand jury’s conclusion that he struck an officer. His testimony may be bolstered by evidence of law enforcement misconduct, and in particular the disappearance of a cellphone video, as suggested in the criminal trial. We therefore find that there are disputed issues of material fact with respect to the presumption of probable cause, and that summary judgment was granted in error.”
The DeGroots did not contest on appeal Huff’s award of summary judgment to the government on the causes of action for intentional infliction of emotional distress and assault and battery. The judgment on those claims was affirmed.
Bennett said in his dissent:
“I respectfully dissent from the majority’s decision to reverse the district court on an issue that was never raised by the appellant before this court.”
He pointed out:
“[A]t no point on appeal, except when asked at oral argument, have the DeGroots ever challenged the district court’s reliance on Mr. DeGroot’s indictment as a basis for probable cause for his arrest.”
The dissenter went on to say:
“The DeGroots have not shown good cause for failing to brief this issue….Indeed, they have not made any showing at all. Rather, they have been totally silent on this issue.”
The majority opinion says that “it would be unfair and unjust to blindly endorse a presumption of probable cause without considering its merits.” Bennett countered:
“There isn’t a clear absence of probable cause—there are disputed issues of fact regarding probable cause. And Mr. DeGroot’s testimony, which creates that dispute, is wholly insufficient (and essentially irrelevant) to rebut the presumption established by the indictment. And the majority does not need to ‘blindly endorse’ the presumption—it simply needs to apply it, as it is part of the law applicable to the causes of action asserted by the DeGroots.”
Change of Mind
The majority’s opinion says that the signators do not “give weight to the jury’s decision to acquit.” This is in contrast to statements by Wardlaw and Sessions at oral argument in Pasadena on March 6 that the acquittal is a factor rebutting the presumption of probable cause created by the indictment.
Wardlaw pointed to “the fact that the verdict was based on the officer’s version of the testimony,” and said:
“And now we must look at the fact that the jury obviously discredited that version of the testimony when it acquitted Mr. DeGroot.”
Sessions maintained that the acquittal “may be used by the court to rebut the presumption.”
He later said, “That’s one factor.”
In specifying in the opinion that the factor was not taken into account, the majority cited the Ninth Circuit’s 1998 opinion in Poppell v. City of San Diego. The case stemmed from the conviction in state court of Elbert Poppell, operator of a nudist club, on charges of zoning violations.
The conviction was invalidated by the U.S. District Court for the Southern District of California on habeas corpus review; Poppell sued the city in District Court for violating his civil rights by prosecuting him without probable cause; a jury found the city liable; the Ninth Circuit reversed.
Relevance of Acquittal
Circuit Judge Stephen S. Trott said in the course of that opinion:
“An acquittal, however, reveals very little—if anything—about whether the charges were procured with malice. Any number of innocent factors can contribute to an acquittal, including the high burden of proof.”
While the majority in Thursday’s decision did not take cognizance of Andrew DeGroot’s acquittal, it said:
“We instead note the existence of facts that may be presented to a jury to rebut the presumption of probable cause.”
The case is DeGroot v. United States, 17-56674.
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