The opinion of the court was delivered by: Breyer, District Judge.
Now before the Court are (1) the motion for summary judgment
of defendants Robert Morse and Bryan Cassandro, (2) the motion
for summary judgment of defendants Martin Murray and John Cuneo,
(3) the motion for summary judgment of plaintiff Eileen
Franklin-Lipsker, and (4) plaintiffs cross-motion for summary
judgment with respect to the Murray/Cuneo motion. After
carefully considering the papers filed by the parties, including
their evidentiary objections, and having had the benefit of oral
argument, defendants' motions for summary judgment are GRANTED
and plaintiffs cross-motion for summary judgment is DENIED.
This action arises from the 1990 conviction of plaintiff for
first-degree murder after a jury trial in San Mateo County.
Plaintiff was convicted of the 20-year-old murder of his
daughter's friend, Susan Nason, based, in part, on his
daughter's recovered memory. In 1995, this Court (Honorable D.
Lowell Jensen), granted plaintiffs petition for habeas corpus on
the ground that there were several constitutional errors at
trial and that the errors were not harmless. Franklin v.
Duncan, 884 F. Supp. 1435 (N.D.Cal.), aff'd, 70 F.3d 75 (9th
Cir. 1995). Plaintiff has not been retried and in 1996 the San
Mateo County District Attorney dismissed the charges
against plaintiff and, according to the complaint before this
Court, announced that he did not have sufficient evidence to
Plaintiff subsequently filed this civil rights section 1983
action against the prosecution's expert witness, Lenore Terr;
his daughter's therapist, Kirk Barrett; the Assistant District
Attorney who assisted at trial, Martin Murray; the trial
attorney, Elaine Tipton, the District Attorney James Fox; and
By Order filed April 30, 1998, the Court dismissed the claims
against Terr and Barrett on the ground that the claims are
barred by defendants' absolute witness immunity. The Court also
dismissed the third, fourth and fifth causes of action against
the San Mateo defendants, the second cause of action as to
defendants Morse and Cassandro, and the first cause of action as
to defendant Murray. Plaintiff filed an interlocutory appeal of
the Court's dismissal of the claims against Terr and Barrett.
The Ninth Circuit affirmed. Franklin v. Terr, 201 F.3d 1098
(9th Cir. 2000). Plaintiff subsequently dismissed defendant Fox.
The only claims remaining in this action are the first cause
of action against defendants Morse and Cassandro, the second
cause of action against defendants Murray and Cuneo, and all of
the claims against Franklin-Lipsker. In the first cause of
action plaintiff alleges that defendants Morse and Cassandro
arrested plaintiff without probable cause and that they
conspired with Franklin-Lipsker to do so. In the second cause of
action plaintiff alleges that defendants Murray and Cuneo
conspired with Franklin-Lipsker to have Franklin-Lipsker
interrogate plaintiff without his attorney present in violation
of his Sixth Amendment rights.
All remaining defendants now move for summary judgment.
Defendants Morse, Cassandro, Murray and Cuneo contend that they
are entitled to qualified immunity. Franklin-Lipsker asserts
that she is entitled to summary judgment based on absolute
witness immunity and because plaintiff has not produced evidence
sufficient to permit a reasonable trier of fact to find that she
conspired with the defendants.
I. THE QUALIFIED IMMUNITY MOTIONS
Under the doctrine of qualified immunity, government officials
performing discretionary functions are shielded from liability
for civil damages if "their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "The
relevant question . . . is the objective (albeit fact-specific)
question whether a reasonable officer could have believed [the
challenge actions] lawful, in light of clearly established law
and the information the [defendants] possessed." Anderson v.
Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523
Accordingly, "[d]etermining whether a public official is
entitled to qualified immunity `requires a two-part inquiry: (1)
Was the law governing the state official's conduct clearly
established? (2) Under that law could a reasonable state
official believe his conduct lawful?'" Liston v. County of
Riverside, 120 F.3d 965, 975 (9th Cir. 1997) (citation
omitted). "`A public official is not entitled to qualified
immunity when the contours of the allegedly violated right were
sufficiently clear that a reasonable official would understand
that what he [was] doing violate[d] that right.'" Id.
(citations omitted); see also Anderson, 483 U.S. at 640, 107
S.Ct. 3034 (A public official is shielded qualified immunity
unless the "contours of the right [are] sufficiently clear that
a reasonable official would understand that what he is doing
violates that right").
A. First Cause of Action: Morse and Cassandro
The first cause of action alleges that defendants Morse and
Cassandro arrested plaintiff without probable cause to believe
that he committed the murder of Susan Nason. The qualified
immunity issue in this context is "whether `a reasonable officer
could have believed that probable cause existed to arrest' the
plaintiff." Mendocino Environmental Center v. Mendocino
County, 14 F.3d 457, 462 (9th Cir. 1994). "[T]he principle
focus in an unlawful arrest case is one the objective
reasonableness of the officer's probable cause determination."
Id. "The determination of whether the facts alleged could
support a reasonable belief in the existence of probable cause
. . . is . . . a question of law to be determined by the court."
Act Up!/Portland, 988 F.2d at 873.
Defendants arrested plaintiff without a warrant for the murder
of Susan Nason on November 28, 1989. The arrest was preceded by
a series of unsolicited telephone calls Franklin-Lipsker made to
the San Mateo District Attorney's Office earlier that month. In
those calls, Franklin-Lipsker advised defendants that she had
witnessed her father (the plaintiff) murder her childhood
friend, Susan Nason, 20 years earlier. She was initially
reluctant to talk, and the first telephone calls were made by
her then-husband Barry Lipsker. Franklin-Lipsker told the
District Attorneys Office that at the time of the murder (when
she was eight), her father threatened that he would kill her if
she reported anything. After Franklin-Lipsker made the first of
her calls, defendant Morse became the lead investigator on the
case and became a party to many of the subsequent telephone
conversations. On November 25, 1989, Morse and defendant
Cassandro met with Franklin-Lipsker in person and found her to
be a compelling witness. Three days later they arrested
At the time of the arrest, Morse and Cassandro were aware of
other information which corroborated Franklin-Lipsker's story.
First, Susan Nason, the deceased, was a friend of the Franklin
family and knew the plaintiff and Franklin-Lipsker. Second, the
plaintiff did not have an alibi for the time of the murder.
Third, the "profile" of the murderer was a pedo-phile since
there was no other motive for the murder and plaintiff fit that
profile. Franklin-Lipsker and her sister Janice Franklin both
had told defendants that plaintiff had sexually abused them and
their older sister. Fourth, Janice Franklin also told defendants
that around the time of the murder, when officers telephoned to
speak to her about Susan Nason's murder, plaintiff kicked her in
the back to indicate that she should not say anything. Fifth,
Janice Franklin reported that she had seen the plaintiff "play"
inappropriately with Susan Nason. Defendants based their
decision to arrest based on these and other facts and contend
that reasonable officers under the same circumstances could have
believed there was probable cause to arrest.
Plaintiff argues that summary judgment must be denied because
there are genuine issues of fact precluding the application of
qualified immunity. The Ninth Circuit has explained that
Act Up!/Portland, 988 F.2d at 873. Plaintiff argues that there
is a genuine dispute as to whether defendants knew that
Franklin-Lipsker's memory of her father murdering Susan Nason
was hypnotically induced. If they knew her memory was so
induced, argues plaintiff, a reasonable officer would have known
that he did not have probable cause to arrest.
1. California law as to hypnotically-induced testimony
In 1982 the California Supreme Court held "that the testimony
of a witness who has undergone hypnosis for the purpose of
restoring his memory of the events in issue is inadmissible as
to all matters relating to those events, from the time of the
hypnotic session forward." People v. Shirley, 31 Cal.3d 18,
66-67, 181 Cal.Rptr. 243, 723 P.2d 1354 (1982). "[E]vents in
issue" are those that were "`the subject of the hypnotic
session.'" People v. Hayes, 49 Cal.3d 1260, 1269,
265 Cal.Rptr. 132, 783 P.2d 719 (1989) (quoting Shirley, 31 Cal.3d
at 68, 181 Cal.Rptr. 243, 723 P.2d 1354). In 1984, the
California legislature responded to Shirley by enacting
Evidence Code section 795. See People v. Aguilar,
218 Cal.App.3d 1556, 1560-61, 267 Cal.Rptr. 879 (1990). Section 795
permits a witness who has been so hypnotized to testify, but
only if strict guidelines have been followed. Id. at 1562,
267 Cal.Rptr. 879. In particular, "the testimony of a witness is not
inadmissible in a criminal proceeding by reason of the fact that
the witness has previously undergone hypnosis for the purpose of
recalling events which are the subject of the witness'
testimony" only if, among other things, the "testimony is
limited to those matters which the witness recalled and related
prior to the hypnosis," and "[t]he substance of the prehypnotic
memory was preserved in written, audiotape, or videotape form
prior to the hypnosis." Evidence Code § 795(a)(1) & (2). Thus,
in 1989 the law in California was well-established that