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Ewing v. City of Stockton

December 9, 2009

HEATHER MARIE EWING; MARK LEE EWING; KATELYN JOYNER EWING- MUNNERLYN, A MINOR BY AND THROUGH HER FATHER MARK LEE EWING; RACHEL MARIE EWING, A MINOR BY AND THROUGH HER PARENTS HEATHER MARIE EWING AND MARK LEE EWING; SAVANNAH JAILYN EWING, A MINOR BY AND THROUGH HER PARENTS HEATHER MARIE EWING AND MARK LEE EWING, PLAINTIFFS-APPELLANTS,
v.
CITY OF STOCKTON; JOHN D. PHILLIPS, DISTRICT ATTORNEY; LESTER F. FLEMING, DEPUTY DISTRICT ATTORNEY; WILLIAM JEROME HUTTO, INDIVIDUALLY AND IN HIS CAPACITY AS A CITY OF STOCKTON POLICE OFFICER; STEVEN MCCARTHY, INDIVIDUALLY AND IN HIS CAPACITY AS A CITY OF STOCKTON POLICE OFFICER; JOHN J. REYES, INDIVIDUALLY AND IN HIS CAPACITY AS A CITY OF STOCKTON POLICE OFFICER, DEFENDANTS-APPELLEES, AND STATE OF CALIFORNIA; COUNTY OF SAN JOAQUIN, DEFENDANTS.



Appeal from the United States District Court for the Eastern District of California. William B. Shubb, District Judge, Presiding. D.C. No. 2:05-CV-02270-WBS-GGH.

The opinion of the court was delivered by: Adelman, U.S. District Judge

FOR PUBLICATION

Argued and Submitted October 6, 2009 -- San Francisco, California.

Before: Pamela Ann Rymer and A. Wallace Tashima, Circuit Judges, and Lynn S. Adelman,*fn1 District Judge.

OPINION

DECISION

Plaintiffs-Appellants Mark and Heather Ewing and their minor children (collectively "the Ewings")*fn2 filed a § 1983 action against the City of Stockton, California; Stockton police officers John Reyes, William Hutto and Steven McCarty (collectively "the officers" or the "officer-defendants"), and District Attorney John D. Phillips and Deputy District Attorney Lester Fleming, Jr. (collectively "the DAs" or the "DA-defendants"), alleging violations of their constitutional rights arising out of the search of their home and the arrest of Mark and Heather in connection with a murder that they did not commit.*fn3 The district court granted summary judgment to defendants on most of the Ewings' claims, and the parties stipulated to the entry of judgment on such claims under Fed. R. Civ. P. 54(b), permitting this appeal.

I. BACKGROUND

On the night of November 5, 2004, a fight broke out in the parking lot of Shaker's Bar in Stockton between men who had been drinking at the bar and two men wearing "Jus' Brothers" motorcycle club vests. Mark Donahue and several friends watched the fight. A woman bumped into or pushed Donahue, and Donahue yelled at her. The woman called out for help, and one of the men in vests struck Donahue with a Mag-lite flashlight and stabbed him, resulting in his death. The two men in vests left on motorcycles, with the woman on the back of one of them.

Stockton police officers Reyes and Hutto responded and took statements from witnesses, including Donahue's friends, Brian Shirk and Richard Contreras. Shirk stated that the woman was "in her mid-thirties" and that he had "never seen these three people before but could definitely identify them if he saw them." The next day, Shirk telephoned Reyes, stating that he had viewed photographs on the Jus' Brothers website and recognized the woman. He then met with Reyes and provided him with three website photos of the woman and later a recorded statement. A district attorney's investigator identified the woman as Heather Ewing, wife of Jus' Brothers Vice President Mark Ewing. Soon after, Reyes and Hutto sought a search warrant for the Ewings' residence.

In his affidavit supporting the request for a warrant, Hutto included reports of Shirk's on-the-scene statement and of his subsequent identification of Heather. He stated incorrectly that Heather had recently been arrested for domestic violence, basing this statement on a file pertaining to a Nicolette Marie Ewing rather than Heather Marie Ewing. He also included a summary of Shirk's November 7, 2004 recorded statement to Reyes and represented Shirk as having said, "I don't remember what the name was that the female called out, but the name ended with the letter 'K'." However, Shirk actually said that it "may, might have had like, uh, uh K type of sound at the end of it, like a Mike or Jack."

Hutto concluded the affidavit as follows:

Based on my training and experience, as well as the above facts, I believe Heather Marie Ewing and possibly her husband Mark Lee Ewing may have been involved in the homicide that occurred at 2130 Country Club Blvd on Friday (November 5, 2004). I also believe there is evidence related to the crime of homicide located at 405 S. Carroll Ave, Stockton, California [i.e., the Ewing residence].

A state court issued a search warrant, authorizing the officers to seize (1) indicia tending to establish the identity of the persons in control of the premises; (2) items of clothing worn by the murder suspect, including a Jus' Brothers vest or jacket; (3) weapons used to commit the murder, including any knives, flashlights or tools matching those used in the crime; (4) trace evidence, including hair, blood, fibers or finger prints of the suspect; (5) narcotics or narcotic paraphernalia; (6) written names or monikers on walls, furniture, items or papers, or any photos, scrapbooks, letters or other documents depicting fellow gang members or associates; and (7) electronic storage and computer equipment.

Police executed the warrant at about 7:00 a.m. on November 8. After securing the residence, police discovered a hand- gun, knives, marijuana, a Mag-lite flashlight, a motorcycle and indicia of the Jus' Brothers motorcycle club. Heather was present, and the officers arrested her for possession of the drugs and gun. Mark had previously left the residence in a truck listed in the search warrant, and the police stopped and arrested him as well, apparently on drug and weapon charges.

Later on November 8, the officers showed photos to five witnesses from Shaker's Bar, three of whom identified Heather as the female who summoned the biker who killed Donahue. One witness provided a tentative (fifty to sixty percent) identification of Mark. Reyes testified that he contacted Fleming who advised him to "add-book" murder charges.*fn4

Because of the murder charges, Heather and Mark could not obtain bail.

Between November 8 and 10, a number of witnesses provided information to Reyes and Hutto that cast doubt on Mark and Heather's involvement in the murder. The bartender at Shaker's stated that Mark was not present on the evening of the murder, and several anonymous callers said that the police had arrested the wrong people and that the assailant was a man named Frankie.

On November 10, Reyes and Hutto met with Fleming and Deputy District Attorney Mayo and shared their concerns about the Ewings' involvement. Fleming nevertheless filed a complaint charging Mark and Heather with murder. On November 12, Frank Prater and Robert Memory turned themselves in, in connection with the Donahue murder. On November 15, the police released Mark and Heather and dropped the murder charges against them.*fn5

II. STANDARD OF REVIEW

[1] We review a district court's grant of summary judgment de novo. E.g., Conn v. City of Reno, 572 F.3d 1047, 1054 (9th Cir. 2009) (citing McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th Cir. 2008)). On such review, taking the evidence in the light most favorable to the non-moving party, we determine whether there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Friedman v. Boucher, 568 F.3d 1119, 1124 (9th Cir. 2009), amended, 580 F.3d 847 (9th Cir. 2009). In order to survive a motion for summary judgment on a § 1983 claim, the plaintiff must establish a genuine issue of material fact that the defendant (1) acted under the color of state law, and (2) deprived him of a constitutional right. See, e.g., Levine v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008).

III. DISCUSSION

The Ewings raise the following issues: (1) whether the search warrant was supported by probable cause; (2) whether it was sufficiently particular, and if not, whether its overbroad portions were severable;*fn6 (3) whether officers unlawfully arrested Mark and Heather for murder; (4) whether they wrongfully detained Mark and Heather after being made aware of evidence tending to exonerate them; and (5) whether the DA-defendants are entitled to absolute immunity. We affirm the district court's rulings on the first four but reverse and remand on the fifth.

A. Probable Cause for Issuance of Search Warrant

[2] We review the issuance of a search warrant deferentially, upholding it if the issuing judge "had a 'substantial basis' for concluding [that] probable cause existed based on the totality of circumstances." Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. ...


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