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FRANKLIN v. FOX

July 17, 2000

GEORGE THOMAS FRANKLIN, PLAINTIFF,
V.
JIM FOX, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Breyer, District Judge.

MEMORANDUM AND ORDER

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.

BACKGROUND

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 convict plaintiff.

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 three detectives.

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.

DISCUSSION

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 (1987).

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").

The question of whether a reasonable officer could have believed his conduct was lawful is "`essentially a legal question' . . . that should be determined by the district at the earliest possible point in the litigation." Act Up P!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (quoting Forsyth, 472 U.S. at 526, 105 S.Ct. 2806). "Where the underlying facts are undisputed, a district court must determine the issue on motion for summary judgment." Id. If, however, "a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial." Id; Liston, 120 F.3d at 965.

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 plaintiff.

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

[w]here a Fourth Amendment violation is claimed, the factual issues that may preclude a determination of qualified immunity on summary judgment fall into two categories. First, a determination of reasonable suspicion or probable cause requires an inquiry as to the facts and circumstances within an officer's knowledge. . . . These are matters of fact to be determined, where genuine disputes of a material nature exist, by the fact finder. . . . Second, the determination of what conduct underlies the alleged violation — what the officer and claimant did or failed to do — is a determination of fact.

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 ยง 795(a)(1) & (2). Thus, in 1989 the law in California was well-established that testimony ...


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