United States District Court, Northern District of California
January 11, 2005
PRENTICE E. SANDERS, ET AL., PLAINTIFFS,
TERENCE HALLINAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Breyer, J.
MEMORANDUM AND ORDER
Plaintiffs make federal and state law claims against the former San Francisco District Attorney, Terence Hallinan, the City and County of San Francisco, and the San Francisco Board of Supervisors. Now pending before the Court are defendants' motions to dismiss the federal and state claims. After carefully considering the allegations of the First Amended Complaint, the papers filed by the parties, and having had the benefit of oral argument, defendants' motions are GRANTED as to the two federal causes of action. The ten state law causes of action are DISMISSED WITHOUT PREJUDICE to plaintiffs pursuing those claims in state court.
ALLEGATIONS OF THE COMPLAINT
On November 20, 2002, a street fight occurred on Union Street in San Francisco involving Jade Santaro and Adam Snyder, and three off-duty police officers: Alex Fagan, Jr., Matt Tonsing, and David Lee. FAC ¶ 20. Around noon that same day, Police Lt. Dutto assigned two police inspectors to conduct a full investigation of the incident. Id. ¶ 21.
On December 2, 2002, District Attorney Hallinan ("Hallinan") met with Police Chief Earl Sanders ("Chief Sanders") about the incident. Hallinan suggested that Chief Sanders direct the suspect officers to plead to misdemeanors for the fight, and emphasized that if they did so, the officers' cases could be resolved in the same manner as Hallinan's son's assault case. Hallinan informed Chief Sanders that Hallinan's son had received community service for multiple assault convictions. Chief Sanders did not respond. Id. ¶ 23.
By the following day, the police investigators had completed their investigation and presented the case to Hallinan for a prosecutorial decision. Hallinan returned the file to the San Francisco Police Department requesting further investigation. Id. ¶ 24. In particular, Hallinan "prevailed on Lt. Dutto to interrogate every police officer--no matter their rank or role in the case--about the propriety of the investigation." Id. ¶ 26.
On December 11, 2002, the police department submitted its entire file to Hallinan. Id. ¶ 27. On January 13, 2003, before he had made any decision on whether to prosecute the police officers involved in the incident, Hallinan met with Chief Sanders and stated: " 'You know we can still clear this up by having them [the off-duty police officers involved in the INCIDENT] just tell what happened, plead to a misdemeanor and I'll give them a slap on the wrist. Just like my son's case." ' Id. ¶ 45 (emphasis in original omitted). Sanders subsequently advised the Mayor and the Executive Director of the Mayor's Council on Criminal Justice of Hallinan's "proposals and solicitations." Id. ¶ 47.
In retaliation for Sanders' reporting of Hallinan's conduct, Hallinan orchestrated a massive media campaign defaming Chief Sanders and the command staff. Id. ¶ 48.
On February 27, 2003, Hallinan convened a grand jury. Id. ¶ 48. Knowing that he did not have any evidence against Chief Sanders and/or any member of the Chief's command staff, id. ¶ 28, Hallinan "falsely urged, incited, and inflamed the Grand Jury" that Chief Sanders, Deputy Chief Robinson, and members of the command staff " '... obstructed and obstructed and obstructed ...' the investigation of the incident." Id. ¶ 29. At the same time, Hallinan and Assistant District Attorney Albert Murray admitted to the grand jury that there was no evidence of a conspiracy by Chief Sanders, Deputy Chief Robinson, or any of the command staff. Id. ¶¶ 30, 31.
The grand jury indicted Chief Sanders, Deputy Chief Robinson and others for conspiracy to obstruct justice. Id. Exh. 1. As a result, Chief Sanders and Deputy Chief Robinson were "arrested, fingerprinted, subjected to police mug-shots, arraigned and treated like common criminals." Id. ¶ 32.
During Hallinan's investigation of the incident, Hallinan made numerous false statements that implied that Chief Sanders, Deputy Chief Robinson, and the command staff intended to cover-up wrongdoing by themselves and other police officers. Id. ¶ 37. He also made false statements to the grand jury. Id. ¶ 44.
Hallinan dismissed the charges against Chief Sanders and Assistant Chief Alex Fagan Sr. on March 11, 2003. He stated to the court that after reviewing the transcript of the grand jury proceedings, he was dismissing the charges in the "interest of justice." Id. ¶ 33. The court dismissed the charges against the rest of the command staff, including Deputy Chief Robinson, on April 4, 2003. Id. ¶ 34. In so ruling, the court made the following findings: "That the District Attorney's office, including DA HALLINAN, had told the Grand Jury on February 27, 2003 that there was not enough evidence to indict on a conspiracy charge, but that DA HALLINAN presented no other charges other than conspiracy; and "That DA HALLINAN and the District Attorney's Office failed to abide by the ethics code for prosecuting attorneys by failing to dismiss the criminal case when they themselves admitted there was no evidence to support the charges." Id.
Five months later, the superior court granted Chief Sanders' unopposed motion for a finding of factual innocence pursuant to California Penal Code section 851.8. Id. ¶ 35, Exh. 3.
Chief Sanders and Deputy Chief Robinson ("plaintiffs") and their wives, subsequently initiated this lawsuit against Hallinan, the City and County of San Francisco, and the San Francisco Board of Supervisors. The First Amended Complaint includes twelve causes of action: 10 state law claims and two federal civil rights claims. Plaintiffs allege that Hallinan's actionable conduct includes indicting plaintiffs without probable cause and in violation of state bar ethics rules, and making defamatory statements about plaintiffs in the news media. FAC ¶ 59.
Now pending before the Court are defendants' motions to dismiss. With respect to the federal claims, defendants contend that plaintiffs have not alleged an actionable constitutional violation and that District Attorney Hallinan is entitled to absolute prosecutorial immunity.
Absolute prosecutorial immunity immunizes a prosecutor from any monetary liability pursuant to 42 U.S.C. section 1983 for actions taken in his role as a prosecutor. Prosecutorial immunity "is based upon the same purpose that underlies the immunity of judges and grand jurors acting within the scope of their duties: to protect the judicial process." See Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir.2001). "Specifically, absolute immunity for prosecutors is warranted (1) to allow prosecutors to focus their energies on prosecuting, rather than defending lawsuits, (2) to enable prosecutors to exercise independent judgment in deciding which suits to bring and conducting them in court, (3) to preserve the criminal justice system's function of determining guilt or innocence by ensuring that triers of fact are not denied relevant (although sometimes conflicting) evidence because of prosecutors' fear of suit, and (4) to ensure fairness to defendants by enabling judges to make rulings in their favor without the subconscious knowledge that such rulings could subject the prosecutor to liability." Id.
Prosecutorial immunity is based on "the nature of the function performed, not the identity of the actor who performed it." Id. at 1008 (internal quotation marks and citation omitted). The official seeking immunity "bears the burden of showing that such immunity is justified for the function in question." Id. "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for State, are entitled to the protections of absolute immunity." Id. (internal quotation marks and citations omitted). On the other hand, "[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer," the prosecutor is entitled to only qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
Absolute prosecutorial "immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest." ' Id. at 1007-08 (quoting Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Moreover, prosecutorial misconduct is deterred "by the threat of criminal prosecution and professional discipline, and by prosecutors' accountability to either superiors or the electorate." Id. at 1008.
Plaintiffs' complaint includes two federal claims: (1) a 42 U.S.C. section 1983 claim alleging violations of plaintiffs' First, Fourth, Fifth, and Fourteenth Amendment rights; and (2) a conspiracy claim pursuant to 42 U.S.C. section 1985(3).
I. The Section 1983 claim
Plaintiffs' Eighth Cause of Action alleges that Hallinan (1) convened the grand jury proceedings to indict Chief Sanders and Deputy Chief Robinson, even though Hallinan knew he lacked probable cause to believe they had committed a crime (Fourth, Fifth and Fourteenth Amendments); and (2) convened the grand jury proceedings and made public statements criticizing Chief Sanders and Deputy Chief Robinson in retaliation for Chief Sanders' reporting of Hallinan's "plea" discussions (First Amendment).
A. Lack of probable cause (Fourth Amendment claim)
Hallinan is entitled to absolute prosecutorial immunity for securing the indictment against plaintiffs despite knowing that there was no probable cause to indict. When a prosecutor presents evidence to a grand jury to obtain an indictment, the prosecutor is acting as an advocate for the state. See Milstein, 257 F.3d at 1012 (holding that prosecutor was entitled to absolute immunity on claim arising from the prosecutor's initiation of grand jury proceedings in order to indict the plaintiff).
Plaintiffs respond that under the Supreme Court's decision in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), absolute immunity does not attach until a prosecutor has probable cause to believe a crime has been committed; since the complaint alleges Hallinan did not have probable cause, plaintiffs' argument goes, absolute immunity does not apply to securing the grand jury indictment.
In Buckley, the plaintiff claimed that prosecutors had fabricated expert bootprint evidence in order to tie the plaintiff to the murder of a child. The Supreme Court, applying the functional test for absolute immunity, held that the prosecutors were not entitled to absolute immunity because the fabrication of evidence was an "investigatory" act committed before the grand jury was empaneled: "Respondents have not cited any authority that supports an argument that a prosecutor's fabrication of false evidence during the preliminary investigation of an unsolved crime was immune from liability at common law.... It therefore remains protected only by qualified immunity." Id. at 275.
The lack of probable cause at the time of the prosecutors' fabrication of evidence was an important factor in the Court's determination that the fanction performed by the prosecutors at that stage was as an investigator rather than an advocate. Id. at 274-75. The Court did not hold, however, that even when a prosecutor is indisputably performing an act related to judicial proceedings, such as initiating a prosecution, absolute immunity does not apply if the prosecutor does not have probable cause to believe a crime has been committed. To the contrary, the Buckley Court confirmed that absolute immunity applies to a prosecutor's initiation of a prosecution even when the prosecutor lacks probable cause:
[T]here is no "true anomaly," ... in denying absolute immunity for a state actor's investigative acts made before there is probable cause to have a suspect arrested just because a prosecutor would be entitled to absolute immunity for the malicious prosecution of someone whom he lacked probable cause to indict. That criticism ignores the essence of the function test. The reason that lack of probable cause allows us to deny absolute immunity to a state actor for the former function (fabrication of evidence) is that there is no common-law tradition of immunity for it, whether performed by a police officer or a prosecutor. The reason that we grant it for the latter function (malicious prosecution) is that we have found a common-law tradition of immunity for a prosecutor's decision to bring an indictment, whether he has probable cause or not.
Id. at 274 n. 5 (emphasis added).
Plaintiffs have not alleged that Hallinan violated their Fourth Amendment rights by doing anything that could be considered an investigative act, such as the fabrication of evidence; instead, plaintiffs allege that Hallinan violated their rights when he secured the grand jury indictment, even though there was no evidence--even fabricated evidence--to support an indictment. As the Buckley Court explained, a prosecutor's malicious prosecution is entitled to absolute immunity, whether the prosecutor has probable cause or not.
The Ninth Circuit's decision in Milstein confirms that absolute immunity applies here. There the plaintiff alleged that the prosecutors framed him by fabricating evidence which they then presented to the grand jury. 257 F.3d at 1006. Shortly after the grand jury indicted, a court dismissed the indictment. Id. The plaintiff sued for violation of his constitutional rights and challenged, among other things, the prosecutors' securing the grand jury indictment and their conduct before the grand jury. Id. at 1011-12. The Ninth Circuit affirmed the dismissal of the claim on a Rule 12(b)(6) motion on the ground that the prosecutors were entitled to absolute immunity: "Milstein's allegations as to this particular grand jury focus on [the prosecutors'] efforts to indict, not to investigate a crime. Initiating a prosecution has consistently been identified as a function within the prosecutor's role as an advocate." Id. at 1012. Plaintiffs' complaint alleges that Hallinan, like the prosecutors in Milstein, secured an indictment even though he knew there was no probable cause. Like the Milstein prosecutors, he is entitled to absolute immunity.
B. First Amendment claim
Plaintiffs also allege that Hallinan secured the grand jury indictment and made false and inflammatory public statements about plaintiffs in retaliation for Sanders' complaint to the mayor about Hallinan's ethics.
In order to state a section 1983 First Amendment retaliation claim, plaintiffs must allege that a state official--here Hallinan-deprived plaintiffs of a valuable privilege or benefit. See Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1045 (9th Cir.1994). Plaintiffs allege two such deprivations: (1) the indictment and subsequent arrest, and (2) Hallinan's defamatory statements.
As is explained above, Hallinan is entitled to absolute immunity from section 1983 liability for securing the grand jury indictment. See Karam v. City of Burbank, 352 F.3d 1188, 1195 (9th Cir.2003) (holding that prosecutors were entitled to absolute immunity on claim that they prosecuted the plaintiff in retaliation for her complaint about the city council).
The remaining question, then, is whether Hallinan's defamatory remarks about plaintiffs' alleged obstruction are sufficient to state a claim for violation of the First Amendment. They are not. Damage to reputation is not actionable under section 1983 unless it is accompanied by "some more tangible interests." See Paul v. Davis, 424 U.S. 693, 701-02, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In Paul, the defendant police officers distributed 800 flyers identifying the plaintiff as a "known shoplifter." Id. at 695. The Supreme Court concluded that the damage to the plaintiff's reputation was not a sufficient deprivation of "liberty" or "property" to be actionable under section 1983. Id. at 701-02; see also Weiner v. San Diego County, 210 F.3d 1025, 1032 (9th Cir.2000) (holding that district attorney's defamatory statements about the plaintiff were not actionable under section 1983). The Ninth Circuit has specifically held that the Supreme Court's decision in Paul v. Davis cannot be avoided by simply alleging that the defamatory statements were made in retaliation for protected speech. See Gini, 40 F.3d at 1045; Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir.1988).
Plaintiffs do not allege that anything more than damage to reputation resulted from the defamatory statements: for example, they do not allege that plaintiffs' employment was terminated as a result of the statement. Thus, plaintiffs do not have a federal civil rights claim arising from the defamatory statements; instead, "[f]or any defamation and damage flowing from it, [plaintiffs have] a tort remedy under state law, not under the First Amendment." Gini, 40 F.3d at 1045.
C. Fifth Amendment claim
Plaintiffs also allege Hallinan deprived them of their Fifth Amendment rights by (1) investigating plaintiffs without probable cause, and (2) having plaintiffs arrested. As for the latter allegation, Hallinan is entitled to absolute prosecutorial immunity as the arrest arose from the indictment. As for the former, plaintiffs do not cite any case that suggests that a prosecutor must have probable cause to believe one has committed a crime before requesting an investigation. In addition, they do not cite any case that suggests that being a target of a law enforcement investigation is actionable under section 1983. See generally Tomer v. Gates, 811 F.2d 1240, 1242 (9th Cir.1987) (no constitutional right not to be subject to an investigation based on fabricated evidence).
D. Fourteenth Amendment claim
Finally, plaintiffs contend that the following allegations state a claim for violation of their substantive and procedural due process rights: (1) Hallinan's convening the grand jury without any evidence that plaintiffs had committed a crime; (2) Hallinan's admission to the grand jury that he had no such evidence, and then nonetheless inciting the grand jury to indict; (3) Hallinan's retaliating against Chief Sanders by obtaining the grand jury indictment and making defamatory statements. Plaintiffs' Opposition at 10-11 (citing FAC ¶ 94-96) These allegations, of course, all fail for the reasons stated above. Hallinan is entitled to absolute immunity for all of his conduct in connection with the grand jury, and defamatory statements are not actionable under section 1983.
II. Section 1985
Plaintiffs' other federal claim is brought pursuant to 28 U.S.C. section 1985. Under section 1985(3) (the only section that may apply here), the plaintiff must allege the following elements: (1) a conspiracy, (2) a purpose of depriving any person or class of persons of equal protection of the laws, (3) an act in furtherance of the conspiracy, and (4) injury to a person or property or deprivation of any right or privilege of a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There must be shown some class-based, invidious discriminatory animus behind the conspirators' action. Id. at 102. In order to be protected, the class of members involved must be treated differently than members of other classes with no rational justification for the difference in treatment. See e.g., McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir.1990).
Plaintiffs do not identify the members of the alleged conspiracy, let alone allege that the conspiracy was based on some class-based invidious discriminatory animus. They also do not attempt to defend this claim in their opposition. The claim fails on its face as to all defendants.
III. The County defendants
The Court's discussion of absolute prosecutorial immunity assumes that the allegation that Hallinan maliciously prosecuted plaintiffs states a claim for violation of federal constitutional rights. The next question, then, is whether despite Hallinan's immunity, the City and County of San Francisco and the San Francisco Board of Supervisors can nonetheless be held liable for his conduct.
Plaintiffs' complaint does not make any allegations which would make the San Francisco Board of Supervisors liable for Hallinan's conduct; accordingly, the section 1983 claim against the Board of Supervisors must be dismissed.
As to the City and County of San Francisco, "[p]ursuant to 42 U.S.C. § 1983, a local government may be liable for constitutional torts committed by its officials according to municipal policy, practice, or custom." Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). "To hold a local government liable for an official's conduct, a plaintiff must establish that the official (1) had final policymaking authority 'concerning the action alleged to have caused the particular constitutional or statutory violation at issue' and (2) was the policymaker for the local governing body for the purposes of the particular act." Id. (citing McMillian v. Monroe County Alabama, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)).
Plaintiffs allege that Hallinan had final policymaking authority with respect to the indictment and that he was the policymaker for the City and County of San Francisco for the conduct at issue. FAC ¶ 11. The Monell claim against the City and County of San Francisco nonetheless fails as a matter of law, because the Ninth Circuit has held that when a prosecutor acts as an advocate, such as when he initiates a prosecution, he acts as a state officer rather than on behalf of a county. See Weiner, 210 F.3d at 1031. Since the City and County of San Francisco was not the actor with respect to Hallinan's securing the indictment, the Monell claim against San Francisco fails. See id.
This lawsuit alleges that former District Attorney Hallinan damaged the plaintiffs by (1) maliciously prosecuting the plaintiffs, and (2) making defamatory statements. Defamation by a public official is not actionable under section 1983 and, to the extent being wrongfully indicted (but quickly exonerated) is actionable, Hallinan is entitled to absolute prosecutorial immunity. Therefore, the section 1983 claim against Hallinan is DISMISSED.
The section 1983 claim is also DISMISSED as to the City and County of San Francisco and the San Francisco Board of Supervisors. The section 1985(3) claim is also DISMISSED.
The dismissal of the federal claims is without leave to amend as amendment would be futile. At oral argument plaintiffs forthrightly conceded that they had pled all facts available to them, and had made their best attempt to "plead around" absolute immunity.
The state law claims are DISMISSED WITHOUT PREJUDICE to plaintiffs pursuing those claims in state court.
These dismissals should not be viewed as condoning a district attorney filing criminal charges against individuals when he believes he has insufficient evidence of wrongdoing. Such prosecutorial misconduct, if it occurred as alleged, can injure the innocent and discredit the criminal justice system. A district attorney, in the discharge of his public responsibilities, cannot justify this unethical conduct.*fn1 Nevertheless, for the reasons stated above, this Court is constrained to follow the law awarding absolute prosecutorial immunity, no matter how egregious the alleged conduct. Since former District Attorney Hallinan has asked this Court to dismiss the federal action on the basis of absolute immunity, the Court has no choice.
IT IS SO ORDERED.