Heather Ewing v. City of Stockton ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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

16209
16210 EWING v. CITY OF STOCKTON
STATE OF CALIFORNIA; COUNTY OF  No. 08-15732
SAN JOAQUIN, D.C. No.
Defendants.
 2:05-CV-02270-
WBS-GGH
 OPINION
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
October 6, 2009—San Francisco, California
Filed December 9, 2009
Before: Pamela Ann Rymer and A. Wallace Tashima,
Circuit Judges, and Lynn S. Adelman,* District Judge.
Opinion by Judge Adelman
*The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
EWING v. CITY OF STOCKTON 16215
COUNSEL
Terry Gross, San Francisco, California, for the plaintiffs-
appellants.
Shelley L. Green, Deputy City Attorney; Jason R. Morrish,
Deputy County Counsel, Stockton, California, for the
defendants-appellees.
OPINION
ADELMAN, U.S. District Judge:
DECISION
Plaintiffs-Appellants Mark and Heather Ewing and their
minor children (collectively “the Ewings”)1 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 Dep-
uty District Attorney Lester Fleming, Jr. (collectively “the
1
We will sometimes refer to the Ewings by their first names.
16216 EWING v. CITY OF STOCKTON
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 mur-
der that they did not commit.2 The district court granted sum-
mary 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 pro-
vided him with three website photos of the woman and later
a recorded statement. A district attorney’s investigator identi-
fied 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.
2
The Ewings also asserted state law claims, which are not presently at
issue.
EWING v. CITY OF STOCKTON 16217
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 remem-
ber 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 pos-
sibly 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 offi-
cers 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) elec-
tronic storage and computer equipment.
Police executed the warrant at about 7:00 a.m. on Novem-
ber 8. After securing the residence, police discovered a hand-
16218 EWING v. CITY OF STOCKTON
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 per-
cent) identification of Mark. Reyes testified that he contacted
Fleming who advised him to “add-book” murder charges.3
Because of the murder charges, Heather and Mark could not
obtain bail.
Between November 8 and 10, a number of witnesses pro-
vided 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 them-
selves in, in connection with the Donahue murder. On
November 15, the police released Mark and Heather and
dropped the murder charges against them.4
3
Fleming testified that he could not recall the conversation.
4
Mark subsequently pleaded no contest to possession of marijuana.
EWING v. CITY OF STOCKTON 16219
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 deter-
mine whether there are genuine issues of material fact and
whether the district court correctly applied the relevant sub-
stantive 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;5 (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 deferen-
tially, upholding it if the issuing judge “had a ‘substantial
5
The Ewings also challenge Heather’s arrest on drug and gun charges,
but such claim is based solely on the alleged invalidity of the search war-
rant pursuant to which officers seized the contraband.
16220 EWING v. CITY OF STOCKTON
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. 1994) (quoting
United States v. Bertrand, 926 F.2d 838 (9th Cir. 1991)).
The task of the issuing magistrate is simply to make
a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before
him, including the “veracity” and “basis of knowl-
edge” of persons supplying hearsay information,
there is a fair probability that contraband or evidence
of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that
the magistrate had a “substantial basis for . . . con-
clud[ing]” that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones
v. United States, 362 U.S. 257, 271 (1960)); see also United
States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002)
(“Probable cause requires only a fair probability or substantial
chance of criminal activity[.]”). Thus, a judge’s “determina-
tion that an affidavit provided probable cause to issue a search
warrant will be upheld unless clearly erroneous.” United
States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004).
[3] The Ewings contend that the police procured the war-
rant through deception. To prevail on such a claim, they
“must show that the defendant deliberately or recklessly made
false statements or omissions that were material to the finding
of probable cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th
Cir. 2004) (citing Galbraith v. County of Santa Clara, 307
F.3d 1119, 1126 (9th Cir. 2002)); see also Butler v. Elle, 281
F.3d 1014, 1024 (9th Cir. 2002) (“A plaintiff must make (1)
a substantial showing of deliberate falsehood or reckless dis-
regard for the truth, and (2) establish that but for the dishon-
esty, the challenged action would not have occurred. If a
plaintiff satisfies these requirements, the matter should go to
trial.”) (internal quotation marks omitted). “Omissions or mis-
EWING v. CITY OF STOCKTON 16221
statements resulting from negligence or good faith mistakes
will not invalidate an affidavit which on its face establishes
probable cause.” United States v. Smith, 588 F.2d 737, 740
(9th Cir. 1978). Nor may a claim of judicial deception be
based on an officer’s erroneous assumptions about the evi-
dence he has received. Id. at 739-40.
[4] If a party makes a substantial showing of deception, the
court must determine the materiality of the allegedly false
statements or omissions. KRL, 384 F.3d at 1117; see also But-
ler, 281 F.3d at 1024 (“Materiality is for the court, state of
mind is for the jury.”). If an officer submitted false state-
ments, the court purges those statements and determines
whether what is left justifies issuance of the warrant. See, e.g.,
Baldwin v. Placer County, 418 F.3d 966, 971 (9th Cir. 2005).
If the officer omitted facts required to prevent technically true
statements in the affidavit from being misleading, the court
determines whether the affidavit, once corrected and supple-
mented, establishes probable cause. See, e.g., Liston v. County
of Riverside, 120 F.3d 965, 973-74 (9th Cir. 1997).
[5] The district court analyzed the Hutto affidavit and con-
cluded that a reasonable jury could find that it contained two
deceptive representations: (1) that Heather had an arrest
record, and (2) that Shirk said that the female biker called for
help from a biker whose name ended with the letter K. The
officers do not contest these conclusions, and we agree with
them. Thus, we must determine whether the district court cor-
rectly concluded that the balance of the affidavit, consisting
mainly of Shirk’s description of the incident and his identifi-
cation of Heather, was sufficient to establish probable cause.
[6] We agree with the district court. Neither of the prob-
lematic representations was critical to the probable cause
determination. The misstatement that Heather had recently
been arrested for domestic violence contributed nothing to the
judge’s finding of probable cause. Hutto did not, for example,
misstate the record of a critical informant, see, e.g., United
16222 EWING v. CITY OF STOCKTON
States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997), or of a sus-
pect where the suspect’s record was an element of the offense
under investigation, e.g., a felon in possession charge.
Hutto likely included the representation that Shirk said that
the female biker called out a name ending in the letter K to
bolster the proposition that the female biker, believed to be
Heather, called out for her husband Mark.6 But Shirk did state
that the name may have ended in a K sound; thus, in this
instance, the affidavit contained an exaggeration rather than a
fabrication, and omission of the qualifier “may” was highly
unlikely to have substantially impacted the issuing judge’s
decision. Further, Hutto’s affidavit primarily focused on
Heather and contained ample evidence that she was the
female in question and that relevant evidence might reason-
ably be found in her home.
[7] Shirk’s identification of Heather constituted the key part
of the affidavit, and it was sufficiently reliable. First, Shirk
was a citizen witness, not an informant, and such witnesses
are generally presumed reliable. See United States v. Banks,
539 F.2d 14, 17 (9th Cir. 1976) (“A detailed eyewitness report
of a crime is self-corroborating; it supplies its own indicia of
reliability.”); see also United States v. Blount, 123 F.3d 831,
835 (5th Cir. 1997) (noting that “citizen informants, identified
bystanders, victims and crime scene witnesses may generally
be presumed credible by police in a way that professional
informants are not”) (internal quotation marks omitted); 2
Wayne R. LaFave, Search and Seizure § 3.4(a) (4th ed. 2004)
(noting that corroboration is generally not essential when an
average citizen reports a crime based on personal observa-
tions, and that in such cases reliability may generally be pre-
sumed).7
6
It appears that the female actually called out for Frank, i.e., Frank
Prater.
7
In Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991), we
declined to adopt the “argument that merely because citizen witnesses are
EWING v. CITY OF STOCKTON 16223
Second, the judge could reasonably find the information
Shirk provided reliable under the circumstances. Indicia of
reliability include:
1) the opportunity to view the criminal at the time of
the crime; 2) the degree of attention paid to the crim-
inal; 3) the accuracy of the prior descriptions of the
criminal; 4) the level of certainty demonstrated at the
time of confrontation; and 5) [ ] the length of time
between the crime and the confrontation.
Grant v. City of Long Beach, 315 F.3d 1081, 1087 (9th Cir.
2002), amended, 334 F.3d 795 (9th Cir. 2002).8 Shirk’s con-
temporaneous statement was that he was standing next to
Donahue when the female pushed him. The next day, when
events presumably remained fresh in his mind, Shirk viewed
photos on the Jus’ Brothers web site and “immediately recog-
nized” the female. The DA’s investigator identified the
female as Heather Ewing, wife of Jus’ Brothers member Mark
Ewing. The next day, Shirk provided a more detailed state-
ment, which included descriptions of all three bikers.9
presumptively reliable, the officers in this situation had no duty to exam-
ine further the basis of the witness’ knowledge or talk with any other wit-
nesses.” However, in the present case, the officers spoke with multiple
witnesses, received the photos upon which Shirk based his identification,
and reviewed their findings with a district attorney’s investigator familiar
with the Jus’ Brothers.
8
In determining whether an affidavit establishes probable cause for the
issuance of a search warrant, the court limits its review to the data con-
tained within the four corners of the affidavit. United States v. Gourde,
440 F.3d 1065, 1067 (9th Cir. 2006) (en banc). In the present case, the
parties discuss much evidence outside the four corners of Hutto’s affida-
vit. Some of this evidence may be relevant to appellants’ arguments
regarding omissions from the affidavit, but it may not be considered in
evaluating the warrant itself.
9
The Ewings argue that Shirk’s description of the woman was influ-
enced by his viewing of the website photos. In his initial statement he
described the woman as being in her mid-30’s; only after viewing the
16224 EWING v. CITY OF STOCKTON
[8] Third, the affidavit provided a substantial basis for con-
cluding that there was a fair probability that police would dis-
cover evidence relating to the Donahue murder in the Ewing
home. Multiple witnesses stated that two men wearing Jus’
Brothers vests participated in the fight. Shirk identified
Heather as the female who rode off with one of the bikers.
The DA Investigator stated that Heather was married to Mark,
a Jus’ Brothers member. Based on this evidence, the issuing
judge reasonably concluded that the police might find evi-
dence relating to the homicide in the Ewing home. The
Ewings argue that the affidavit did not establish that the
Ewings committed the murder. However, it did not have to.
It needed only to establish probable cause for the search. See
Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) (“Under
existing law, valid warrants may be issued to search any prop-
erty, whether or not occupied by a third party, at which there
is probable cause to believe that fruits, instrumentalities, or
evidence of a crime will be found.”).
The Ewings contend that the officers omitted other infor-
mation casting doubt on Shirk’s identification of Heather. But
“[t]he government need not include all of the information in
its possession to obtain a search warrant . . . . The omission
of facts rises to the level of misrepresentation only if the omit-
ted facts ‘cast doubt on the existence of probable cause.’ ”
website did he provide details. But the issuing judge was aware of these
facts, which do not undercut probable cause. Citing Simmons v. United
States, 390 U.S. 377 (1968), the Ewings complain that Shirk viewed the
website under suggestive circumstances, but we cannot fault the police for
the manner in which Shirk, on his own, investigated the case. Further, the
record suggests that Shirk did not identify Heather arbitrarily. He advised
Reyes that he looked through various photos before he spotted the female
biker, and he did not identify either of the male bikers from the website
photos. Thus, based on the what they knew at the time, the police had no
reason to doubt Shirk. The Ewings fault the officers for not exploring with
Shirk the fact that other women depicted on the website looked like
Heather. But in analyzing a judicial deception claim, we need not scruti-
nize police investigative tactics in this fashion.
EWING v. CITY OF STOCKTON 16225
United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991)
(quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir.
1980)); see also United States v. Streich, 759 F.2d 579, 586
(7th Cir. 1985) (noting that Illinois v. Gates does not require
officers to apprise a judicial officer of everything); United
States v. Luciano, 785 F. Supp. 878, 881 (D. Mont. 1991)
(“Certainly, an investigating officer cannot be expected to
include the sum total of all of his investigation in the affidavit
supporting a search warrant.”). None of the details appellants
cite cast doubt on the existence of probable cause.10
The Ewings first assert that the officers should have
advised the judge that Shirk only briefly viewed the female
and that a helmet covered most of her face. But Shirk told the
officers “I looked right at her, that’s how I got a good look
at her.”11 Shirk stated that the female wore a full face helmet,
but he did not say that it covered her face. Further, the officers
disclosed that the female wore a “full face helmet” in the affi-
davit. Thus, this information does not undermine Shirk’s iden-
tification or the judge’s issuance of the warrant.
The Ewings next note that after viewing various DMV pho-
tos, including those of Mark and Heather, Contreras and
Rajala initially made no identifications. However, the officers
10
As discussed above, the materiality of an omission is an issue for the
court.
11
The Ewings quote Shirk’s testimony from Prater and Memory’s trial,
but the officers obviously did not have this information at the time they
prepared the warrant affidavit. The Ewings also fault the officers for not
asking Shirk more questions, such as whether he had been drinking, how
long he looked at the female, whether her helmet face shield was up or
down, and what the lighting conditions were. But judicial deception claims
do not require an inquiry into the quality of the police investigation. See
generally Gates, 462 U.S. at 235-36 (recognizing that because affidavits
are typically drafted in the midst and haste of a criminal investigation, by
non-lawyers, they must be read with an understanding of that context and
accordingly held to a lower standard of scrutiny than that applied to plead-
ings filed in more formal proceedings).
16226 EWING v. CITY OF STOCKTON
included Rajala’s statement in the affidavit. They did not
include Contreras’s non-identification,12 but given the strength
of Shirk’s identification, this omission does not cast doubt on
probable cause. See United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (holding that omission of non-
identification from photo spread was not material, and that the
Fourth Amendment does not require an affiant to include all
potentially exculpatory evidence in the affidavit).
[9] The Ewings also complain that prior to applying for the
warrant, the officers did not show photos to the bartender,
Jamie Whipp, or, after obtaining Shirk’s identification, seek
corroboration from Whipp or Contreras. But these are not the
type of omissions with which Franks13 and its progeny are
concerned. Once he has probable cause, an officer is not ordi-
narily required to continue to investigate or seek further cor-
roboration. See, e.g., McBride v. Grice, 576 F.3d 703, 707
(7th Cir. 2009) (“An officer should pursue reasonable avenues
of investigation and may not close his eyes to facts that would
clarify the situation, but once an officer has established proba-
ble cause, he may end his investigation.”) (citing Ramirez v.
City of Buena Park, 560 F.3d 1012, 1023-24 (9th Cir. 2009));
McKinney v. Richland County Sheriff’s Dep’t, 431 F.3d 415,
418-19 (4th Cir. 2005) (“The fact that [the officer] did not
conduct a more thorough investigation before seeking the
arrest warrant does not negate the probable cause established
by the victim’s identification.”); Kelley v. Myler, 149 F.3d
641, 647 (7th Cir. 1998) (“The inquiry is whether an officer
has reasonable grounds on which to act, not whether it was
reasonable to conduct further investigation.”). Application of
this principle seems particularly appropriate in the present sit-
uation, where evidence, unless promptly seized, could have
disappeared and where the officers were particularly inter-
12
After the Ewings’ arrest, Contreras did identify Heather as the female
biker from a photo spread.
13
See Franks v. Delaware, 438 U.S. 154 (1978).
EWING v. CITY OF STOCKTON 16227
ested in seizing weapons used in a crime, as well as trace evi-
dence such as hair, blood or fibers.14
The Ewings further argue that Shirk’s description of the
woman differed from that of other witnesses. But only a few
of the twenty-one witnesses interviewed at the scene men-
tioned the woman, and the Ewings do not point to any signifi-
cant differences. Only Contreras provided a detailed
description, stating that the woman was possibly in her late
30’s, about 5’10” tall, 120-135 pounds, blond hair, wearing a
black helmet and dark clothing. Shirk subsequently described
the woman as late 20’s to mid-30’s, about 5’6” or 5’7”,
weighing 120-130 pounds, blond hair, wearing dark clothing
and a black helmet. Aside from Shirk’s statement that the
woman wore glasses, the two descriptions are quite similar.
Omission of this information did not mislead the judge.
The Ewings next argue that the officers misrepresented that
the female biker enticed or otherwise instigated the confronta-
tion with Donahue. But the portion of the affidavit containing
this statement consists of a near verbatim quote from the
police report of the on-the-scene interview with Shirk. The
Ewings do not argue that the officers falsified this statement;
rather, they argue that Shirk’s later, more detailed statement
indicates that the statement was inaccurate. But the officers
included a paraphrased version of the later statement in the
affidavit, which accurately relates Shirk’s contention that the
female started the confrontation by pushing Donahue. The
Ewings fault the officers for not including Shirk’s statements
that the female “looked completely harmless” and was “trying
to keep out of the way”, and that he didn’t “think she meant
anything by what she did.” The Ewings also note that Contr-
14
It is also worth noting that on November 8, after the officers had
arrested Heather and Mark on gun and drug charges but before adding the
murder charge, they did present photo spreads to five witnesses, including
Whipp and Contreras, both of whom identified Heather as the female
biker.
16228 EWING v. CITY OF STOCKTON
eras stated in his interview that the female appeared to be try-
ing to get away from the fight. But however the confrontation
started, whether the female biker instigated it or was simply
trying to get away, it is undisputed that she pushed or jogged
Donahue hard, that he yelled at her, that she then called to one
of the bikers who immediately attacked Donahue and killed
him, and that she then fled the scene with the bikers. These
facts indicate that the judge reasonably concluded that the
officers might find evidence of the crime at the female’s home.15
Finally, the Ewings attack the district court’s statement that
there was reasonable suspicion that Mark was involved. How-
ever, this statement is irrelevant. The question was whether
there was probable cause to search the Ewings’ house, not to
arrest Mark.16
B. Particularity of Warrant
[10] A warrant must particularly describe “the place to be
searched, and the person or things to be seized.” U.S. Const.
amend. IV. This requirement is designed “to prevent ‘a gen-
eral, exploratory rummaging in a person’s belongings.’ ”
United States v. McClintock, 748 F.2d 1278, 1282 (9th Cir.
1984) (quoting Andresen v. Maryland, 427 U.S. 463, 480
15
The Ewings correctly note that the affidavit contains only Shirk’s
description of the female’s activity. Thus, the district court should not
have referred to a “myriad of witness testimony.” Nor should it have
stated that Heather’s vital statistics matched those recounted by others. No
others recounted any statistics.
16
The officers argue that they are entitled to qualified immunity in con-
nection with the search warrant. However, qualified immunity is generally
unavailable in a judicial deception case. See Branch v. Tunnell, 937 F.2d
1382, 1387 (9th Cir. 1991) (stating that “if an officer submitted an affida-
vit that contained statements he knew to be false or would have known
were false had he not recklessly disregarded the truth, . . . he cannot be
said to have acted in an objectively reasonable manner, and the shield of
qualified immunity is lost”) (internal quotation marks omitted), overruled
on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119(9th Cir. 2002).
EWING v. CITY OF STOCKTON 16229
(1976)). However, “a search warrant need only be reasonably
specific, rather than elaborately detailed,” and “the specificity
required [ ] depend[s] on the circumstances of the case and
the type of items involved.” United States v. Brobst, 558 F.3d
982, 993 (9th Cir. 2009) (internal quotation marks omitted).
Relevant factors are:
(1) whether probable cause exists to seize all items
of a particular type described in the warrant; (2)
whether the warrant sets out objective standards by
which executing officers can differentiate items sub-
ject to seizure from those which are not; and (3)
whether the government was able to describe the
items more particularly in light of the information
available to it at the time the warrant was issued.
United States v. Lacy, 119 F.3d 742, 746 n.7 (9th Cir. 1997).
[11] The district court found ¶¶ 5 and 7 of the warrant, per-
taining to narcotics and computer equipment, overbroad, and
it severed the overbroad portions. The Ewings contend that
the district court should not have employed severance and that
other portions of the warrant are also overbroad. The Ewings’
argument regarding the propriety of severance consists of two
sentences and is based solely on the district court’s failure to
cite a Ninth Circuit case supporting application of the doctrine
of partial suppression in the civil context. However, the
Ewings offer no reason why the doctrine should not apply.
We have “endorsed a doctrine of severance” in the criminal
context, e.g., United States v. SDI Future Health, Inc., 568
F.3d 684, 707 (9th Cir. 2009); see also United States v. Sells,
463 F.3d 1148, 1150 n.1 (10th Cir. 2006) (noting that all fed-
eral circuits apply the doctrine), and see no reason not to
apply it in civil cases. As the court stated in Naugle v. Witney,
755 F. Supp. 1504, 1517 (D. Utah 1990):
It would seem highly anomalous for this court to
allow the admission of evidence obtained pursuant to
16230 EWING v. CITY OF STOCKTON
the valid portion of this Warrant in a criminal trial
while holding defendants civilly liable for the search
and seizure of that same evidence.
The fourth amendment is not applied with zero-sum
force in the criminal context, and the court knows no
compelling policy reasons why it should be so
applied in the civil context. Deterrence of police
conduct violative of the fourth amendment, the
prime justification for the exclusionary rule, is not
undermined by the severance doctrine because evi-
dence seized pursuant to the invalid part of the war-
rant still is excluded. Similarly, in the civil context,
police overreaching is deterred by the liability that
may be imposed for that portion of the search con-
ducted pursuant to the unconstitutional part of the
warrant.
Turning to the Ewings’ second argument, they contend first
that ¶ 1, regarding “Indicia tending to establish the identity of
persons in control of the premises,” is overbroad. However,
this court has long upheld warrants containing such language.
See, e.g., United States v. Alexander, 761 F.2d 1294, 1302
(9th Cir. 1985) (collecting cases). The Ewings argue that such
cases typically involve situations where the premises in ques-
tion are used to commit crimes. See, e.g., United States v.
Whitten, 706 F.2d 1000, 1009-10 (9th Cir. 1983), implied
overruling on other grounds recognized by United States v.
Rodriguez-Rodriguez, 441 F.3d 767 (9th Cir. 2006). But the
Ewings cite no authority limiting the language to such cases.17
Further, in the present case, where the female biker — reason-
ably believed to be Heather — left the scene of the crime with
17
The Ewings cite Whitten, in which the court expressed concern about
a general search of an individual’s papers and effects. 706 F.2d at 1010.
But the cited portion of the opinion addressed the execution of the search,
not the warrant itself (which contained similar indicia of control language,
and which the court upheld).
EWING v. CITY OF STOCKTON 16231
two males, it was reasonable for the officers to seek such evi-
dence.
The same is true of the Ewings’ challenge to ¶ 6, pertaining
to gang material; the officers had information that two Jus’
Brothers members were involved in the fight outside Shaker’s
Bar, that one of them killed Donahue, and that Heather was
his companion. Thus, it was reasonable for the officers to seek
information that might enable them to identify the two gang
members. The Ewings argue that no evidence indicated that
Heather belonged to the gang; however, whether or not she
was a formal member, Shirk found her photo on the Jus’
Brothers website.
The Ewings also argue that ¶¶ 2-4 are overbroad, but this
challenge is particularly weak. In ¶ 2, the judge authorized a
search for items of clothing worn by the suspect, including
Jus’ Brothers jackets or vests; in ¶ 3 for weapons the suspect
may have used, including knives, flashlights or tools, match-
ing given descriptions; and in ¶ 4 for trace evidence, including
hair, blood, natural fibers or latent fingerprints that the sus-
pect may have left. The Ewings complain that the warrant was
not limited according to the witnesses’ specific descriptions.
But the witnesses did not provide precise descriptions of the
clothing or weapons in question, making greater specificity
impracticable. The Ewings assert that ¶ 4 does not identify the
suspect, but evidence making such identification possible is
what the officers hoped to find.
[12] Thus, for the reasons stated, ¶¶ 1-4 and 6 of the war-
rant are sufficiently particular, making application of the sev-
erance doctrine appropriate. See United States v. Sears, 411
F.3d 1124, 1130 (9th Cir. 2005).18
18
Because the Ewings’ overbreadth claim fails, so too does their claim
that the officers unlawfully arrested Heather on drug and gun charges,
which claim is predicated on the invalidity of the warrant.
16232 EWING v. CITY OF STOCKTON
C. Arrest of Mark and Heather for Murder
[13] “ ‘Probable cause to arrest exists when officers have
knowledge or reasonably trustworthy information sufficient to
lead a person of reasonable caution to believe that an offense
has been or is being committed by the person being arrest-
ed.’ ” Torres v. City of L.A., 548 F.3d 1197, 1206 (9th Cir.
2008) (quoting United States v. Lopez, 482 F.3d 1067, 1072
(9th Cir. 2007)), cert. denied, 129 S. Ct. 1995 (2009). As we
noted in Torres, which also involved an arrest for murder,
“the proper inquiry is whether the detectives had probable
cause to believe that [the plaintiff] had committed a crime,”
not merely that he or she was present at the scene or accompa-
nied the responsible parties. Id.In California, murder is unlawful killing with malice afore-
thought. See Cal. Penal Code § 187. An aider or abettor is one
who “ ‘acting with (1) knowledge of the unlawful purpose of
the perpetrator, and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3)
by act or advice aids, promotes, encourages or instigates, the
commission of the crime.’ ” Juan H. v. Allen, 408 F.3d 1262,
1276 (9th Cir. 2005) (quoting People v. Beeman, 674 P.2d
1318, 1326 (Cal. 1984)). California also recognizes “a pro-
vocative act murder theory,” which “can be applied in ‘situa-
tions in which criminal defendants neither kill nor intend to
kill, but cause a third party to kill in response to their life-
threatening provocative acts.’ ” Torres, 548 F.3d at 1207 n.8
(quoting People v. Cervantes, 29 P.3d 225, 230 (Cal. 2001)).
As indicated above, the police had arrested Mark and
Heather on drug and weapon charges when they add-booked
the murder charge. Although the officers had discretion to add
murder charges on their own, following typical practice,
Reyes contacted the district attorney’s office to obtain advice
and spoke to Fleming. Reyes advised Fleming that three wit-
nesses had identified Heather as the female biker and that the
police had discovered knives, a Mag-lite flashlight and Jus’
EWING v. CITY OF STOCKTON 16233
Brothers clothing in her house. He also advised Fleming that
one witness had made a weak identification of Mark. Fleming
advised Reyes to add-book a murder charge. As a result, Mark
and Heather were denied bail, prolonging their detention.19
The district court found that Heather’s arrest for aiding and
abetting murder was supported by probable cause but ques-
tioned the legitimacy of Mark’s. However, it determined that
the officers were entitled to qualified immunity in connection
with Mark’s arrest because they relied on Fleming’s legal
advice. We find that as to both arrests, the officers are entitled
to qualified immunity. As to its conclusion that Heather’s
arrest was supported by probable cause, the district court cited
no California cases. Moreover, the evidence supporting its
conclusion was slim. Limited evidence supported the notion
that the female biker instigated a confrontation with Donahue
(as opposed to bumping into him while trying to avoid the fra-
cas) or that she intended to or did anything to encourage or
facilitate the attack on Donahue. See People v. Richardson,
183 P.3d 1146, 1189 (Cal. 2008) (stating that “mere presence
at the scene of a crime . . . [is] [in]sufficient to establish aid-
ing and abetting”) (internal quotation marks omitted), cert.
denied, 129 S. Ct. 1316 (2009). The fact that the female biker
left the scene with the biker and was later in possession of
items that may have been connected to the offense does not
support a charge of aiding and abetting murder. No one con-
tends that Heather was an accessory after the fact.
[14] In any case, we need not determine whether the offi-
cers had probable cause to arrest Heather for murder because
the officers are entitled to qualified immunity. See Pearson v.
19
As the Seventh Circuit noted in Holmes v. Village of Hoffman Estate,
511 F.3d 673, 682 (7th Cir. 2007), “probable cause to believe that a person
has committed any crime will preclude a false arrest claim, even if the per-
son was arrested on additional or different charges for which there was no
probable cause.” However, the parties agree that in the present case, the
arrest for murder was significant because it caused Mark and Heather’s
continued detention.
16234 EWING v. CITY OF STOCKTON
Callahan, 129 S. Ct. 808, 818 (2009) (authorizing courts to
determine whether right at issue was clearly established
before deciding whether it was violated). The Ewings do not
establish that the unlawfulness of charging Heather with mur-
der on the facts in question was clearly established. See Hope
v. Pelzer, 536 U.S. 730, 739 (2002) (stating unlawfulness
must be apparent based on pre-existing law). Further, the offi-
cers were entitled to rely on the legal advice they obtained
from Fleming.20 Many courts, including this one, have
endorsed such consultation, see, e.g., Kijonka v. Seitzinger,
363 F.3d 645, 648 (7th Cir. 2004) (citing Arnsberg v. United
States, 757 F.2d 971, 981 (9th Cir. 1985)), and while it will
not automatically insulate an officer from liability, “it goes far
to establish qualified immunity.” Id.; see also Frye v. Kansas
City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004)
(“Although following an attorney’s advice does not automati-
cally cloak [officers] with qualified immunity, it can show the
reasonableness of the action taken.”) (internal quotation
marks omitted).
The officers are similarly entitled to qualified immunity
with respect to their arrest of Mark. As the district court
noted, the evidence against Mark was slim. One witness made
a tentative identification. The officers did, however, have
some circumstantial evidence, including the Mag-lite, knives
and Jus’ Brothers paraphernalia found in the Ewing home.
They also had Shirk’s statement that the woman called out to
a man whose name may have ended in a K. Most signifi-
cantly, however, they had Fleming’s recommendation to add
a murder charge. As stated, an officer’s consultation with a
prosecutor is not conclusive on the issue of qualified immu-
nity. See, e.g., Dixon v. Wallowa County, 336 F.3d 1013,
1019 (9th Cir. 2003); Stevens v. Rose, 298 F.3d 880, 884 (9th
20
Reyes expressed doubt as to the existence of probable cause, but his
subjective beliefs are irrelevant; the standard is objective. Lopez, 482 F.3d
at 1072.
EWING v. CITY OF STOCKTON 16235
Cir. 2002). However, it is evidence of good faith, and in the
present case, it tips the scale in favor of qualified immunity.
D. Continued Detention of Mark and Heather
[15] As we explained in United States v. Ortiz-Hernandez,
427 F.3d 567, 574 (9th Cir. 2005):
A person may not be arrested, or must be released
from arrest, if previously established probable cause
has dissipated. “As a corollary . . . of the rule that the
police may rely on the totality of facts available to
them in establishing probable cause, they also may
not disregard facts tending to dissipate probable
cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th
Cir. 1988); BeVier v. Hucal, 806 F.2d 123, 128 (7th
Cir.1986) (citation omitted) (“The continuation of
even a lawful arrest violates the Fourth Amendment
when the police discover additional facts dissipating
their earlier probable cause.”).
However, once a prosecutor has filed charges, the arresting
officers will generally be found immune. See Smiddy v.
Varney, 665 F.2d 261, 266-67 (9th Cir. 1981).
Between November 8, when the officers arrested Heather
and Mark for murder, and November 10, when the district
attorney filed a formal complaint, the officers received infor-
mation suggesting that they had the wrong people. On
November 9, the bartender, Whipp, identified a man named
“Rob” from a Jus’ Brothers group photo as one of the bikers
involved and stated she did not recognize Mark, whose pic-
ture she had seen in the morning paper.21 On November 10,
she identified Robert Memory from a photo lineup, and on the
same day, anonymous callers identified the assailant as Fran-
kie. Reyes was aware of Whipp’s statements and of the calls
21
Whipp did identify Heather from a photo spread.
16236 EWING v. CITY OF STOCKTON
identifying Frankie, and he also knew that on November 8, an
anonymous tipster called the Stockton crime-stoppers, stating
that “the guy who killed the kid at Shaker’s is a JUS
BROTHER and his name is Frankie.”
[16] We agree with the district court that the officers are
entitled to qualified immunity in connection with their deci-
sion not to release Mark and Heather. Whether or not the offi-
cers knew Frankie’s last name, which is disputed, anonymous
tips, standing alone, are entitled to little weight. See, e.g.,
United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006);
United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994); see
also Florida v. J.L., 529 U.S. 266, 268-69 (2000) (holding
that an anonymous tip that a person is carrying a gun — with-
out any corroborating evidence — did not provide reasonable
suspicion of criminal wrongdoing justifying the officer’s stop
and frisk of that person). No witness who was willing to iden-
tify himself identified Frank Prater, and the officers had mul-
tiple identifications of Heather and one weak ID of Mark. The
Ewings cite no similar case in which a constitutional violation
was found, nor do they establish that given the conflicting
evidence that the officers possessed, that only a plainly
incompetent officer or one intent on knowingly violating the
law would have concluded that probable cause had dissipated.
See Malley v. Briggs, 475 U.S. 335, 341 (1986). Further, we
note once again that the officers shared the new information
with Fleming, who nevertheless elected to proceed.
E. Absolute Immunity as to DA-Defendants
[17] A prosecutor is entitled to absolute immunity
from a civil action for damages when he or she per-
forms a function that is “intimately associated with
the judicial phase of the criminal process.” Imbler v.
Pachtman, 424 U.S. 409, 430 (1976). A prosecutor’s
functions that are protected by absolute immunity
include initiating a prosecution and presenting the
State’s case, id. at 431, appearing at a probable cause
EWING v. CITY OF STOCKTON 16237
hearing to support an application for a search war-
rant, [Burns v. Reed, 500 U.S. 478, 492 1991)], and
preparing and filing an arrest warrant. Kalina v.
Fletcher, 522 U.S. 118, 129 (1997). However, the
functions of an advocate do not include advising
police officers whether probable cause exists during
their pretrial investigation, Burns, 500 U.S. at 493,
fabricating evidence before probable cause has been
established, Buckley v. Fitzsimmons, 509 U.S. 259,
275 (1993), or attesting to the facts that support an
arrest warrant. Kalina, 522 U.S. at 130-31.
KRL v. Moore, 384 F.3d 1105, 1110-11 (9th Cir. 2004). Qual-
ified rather than absolute immunity is generally presumed to
be “sufficient to protect government officials in the exercise
of their duties,” and the Supreme Court has declined “to
extend [absolute immunity] any further than its justification
would warrant.” Burns, 500 U.S. at 486-87 (internal quotation
marks omitted).
[18] “To determine whether an action is ‘prosecutorial,’ ”
and thus warrants absolute immunity, we analyze the nature
of the function performed. Al-Kidd v. Ashcroft, 580 F.3d 949,
958 (9th Cir. 2009). Thus, prosecutors are entitled to absolute
immunity not only when they represent the state in court, but
also when they engage in activities “intimately associated
with the judicial phase of the criminal process.” Imbler, 424
U.S. at 430. However, while prosecutors will inevitably par-
ticipate in activity preliminary to filing charges, they are enti-
tled to absolute immunity “ ‘only for actions that are
connected with the prosecutor’s role in judicial proceedings,
not for every litigation-inducing conduct.’ ” Al-Kidd, 580
F.3d at 958 (quoting Burns, 500 U.S. at 494); see also
Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)
(“In other cases, the Court has held that a prosecutor does not
have absolute immunity for providing legal advice to police
that probable cause exists to arrest a suspect, Burns, 500 U.S.
16238 EWING v. CITY OF STOCKTON
at 491, or for personally attesting to the truth of evidence in
support of charging documents, Kalina, 522 U.S. at 130.”).
The Ewings concede that Fleming is entitled to absolute
immunity for his decisions to charge Heather and Mark with
murder and not to release them between November 10 and 15,
see Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (stat-
ing that a prosecutor’s failure to dismiss charges after learning
of new information is protected by absolute immunity), but
argue that he is not so entitled for advising the officers to add
book murder charges on November 8. We agree.
[19] The Supreme Court has clearly stated that with respect
to advising police, prosecutors are entitled to qualified not
absolute immunity. Burns, 500 U.S. at 492-95. Noting the
absence of a common law tradition supporting absolute
immunity, the Court stated: “Indeed, it is incongruous to
allow prosecutors to be absolutely immune from liability for
giving advice to the police, but to allow police officers only
qualified immunity for following the advice. Ironically, it
would mean that the police, who do not ordinarily hold law
degrees, would be required to know the clearly established
law, but prosecutors would not.” Id. at 495 (internal citation
omitted).
[20] In the present case, the district court appears to have
mistakenly limited Burns to apply only to situations where
prosecutors advise police about prospective investigative
techniques. Although the Burns Court sometimes character-
ized the prosecutor’s role as “investigative,” it clearly held
that with respect to advising police that they had probable
cause to arrest, the prosecutor was not entitled to absolute immu-
nity.22 See also Harris v. Bornhorst, 513 F.3d 503, 510 (6th
22
The district court relied primarily on Spivey v. Robertson, 197 F.3d
772 (5th Cir. 1999), but that case, which never even mentioned Burns,
involved advice to the police in connection with a court filing. The district
court cited two other cases, one of which, Flavel v. Logsdon, 718 F. Supp.
836 (D. Or. 1989), predates Burns and relied on cases that Burns rejected.
The other, Orobono v. Koch, 30 F. Supp. 2d 843 (E.D. Pa. 1998), does not
cite Burns and contains little analysis.
EWING v. CITY OF STOCKTON 16239
Cir. 2008) (“[I]n Prince v. Hicks, 198 F.3d 607 (6th Cir.
1999), we affirmed the denial of absolute immunity to a pros-
ecutor who advised police that probable cause existed to
arrest a suspect.”), cert. denied, 128 S. Ct. 2938 (2008); Mink
v. Suthers, 482 F.3d 1244, 1260 (10th Cir. 2007) (“Advising
police on interrogation methods or ‘the existence of probable
cause’ does not qualify” for absolute immunity.) (quoting
Burns, 500 U.S. at 487), cert. denied, 128 S. Ct. 1122 (2008);
Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (“The
absolute immunity of a prosecutor does not extend to his giv-
ing legal advice to the police when they are investigating
whether a crime has occurred.”); Hill v. City of New York, 45
F.3d 653, 661 (2d Cir. 1995) (“Nor is advising the police dur-
ing the investigative stage of a case that they have probable
cause to arrest an advocacy function.”).
The DA-defendants argue that Fleming’s advice to Reyes
was a “charging decision.” But Reyes testified that Fleming
advised him about probable cause on November 8, and the
record indicates that Fleming did not make a charging deci-
sion until November 10. See, e.g., Van Deelen v. City of
Eudora, Kan., 53 F. Supp. 2d 1223, 1231 (D. Kan. 1999)
(“Thus, the question is not simply a matter of whether the
prosecutor communicated advice to the police but rather was
the advice closely associated to the attorney’s decision to
prosecute.”); see also Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993) (stating that absolute immunity applies to “the
professional evaluation of the evidence assembled by the
police and appropriate preparation for its presentation at trial
or before a grand jury after a decision to seek an indictment
has been made”) (emphasis added); Johnson v. City of Merid-
ian, 23 F. Supp. 2d 681, 684 (S.D. Miss. 1998) (rejecting
absolute immunity where the prosecutor was not “merely
informing the officer of his decision to initiate criminal pro-
ceedings,” but rather “was effectively advising the officer that
probable cause for the arrest existed, a situation akin to that
in Burns”).
16240 EWING v. CITY OF STOCKTON
The DA-defendants also note that the police had already
arrested Mark and Heather on drug and gun charges. How-
ever, as discussed, the addition of the murder charges caused
Mark and Heather to be detained without bail. See Holmes,
511 F.3d at 683 (“It is reasonable to demand that each charge
that a police officer elects to lodge against the accused be sup-
ported by probable cause. Otherwise, police officers would be
free to tack a variety of baseless charges on to one valid
charge with no risk of being held accountable for their
excess.”).
[21] In sum, qualified rather than absolute immunity is gen-
erally sufficient to protect government officials in the course
of their duties, and a litigant seeking the greater protection
“bears the burden of demonstrating that absolute immunity is
justified for the function in question.” Botello v. Gammick,
413 F.3d 971, 976 (9th Cir. 2005). In the present case, the
record does not support a finding of absolute immunity for
Fleming.
[22] Alternatively, the DA-defendants contend that Flem-
ing is entitled to qualified immunity, arguing that a reasonable
prosecutor has every reason to expect that it is lawful to apply
charges to a criminal defendant in custody based on informa-
tion provided by the police. But the DA-defendants do not
discuss the specifics of Fleming’s decision, and their argu-
ment largely rehashes their absolute immunity claim. We
therefore decline to address the issue and remand the case for
an initial determination by the district court of whether Flem-
ing is entitled to qualified immunity.
The district court granted summary judgment to DA Phil-
lips based on its determination of absolute immunity as to
Fleming. For the reasons stated, Fleming is not entitled to
absolute immunity. However, we affirm the dismissal of Phil-
lips from the case on other grounds.
[23] The Ewings allege no personal involvement by Phil-
lips in the relevant events, and there is no respondeat superior
EWING v. CITY OF STOCKTON 16241
liability under § 1983. See Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002) (“In order for a person acting under color
of state law to be liable under section 1983 there must be a
showing of personal participation in the alleged rights depri-
vation: there is no respondeat superior liability under section
1983.”). The Ewings fare no better proceeding against Phillips
in his “official capacity.” Setting aside the issue of whether
official capacity claims against a district attorney are subject
to dismissal under the Eleventh Amendment, see Pitts v.
County of Kern, 949 P.2d 920, 930-31 (Cal. 1998) (holding
that California district attorneys act as agents of the state
when they prosecute cases and establish policy and train
employees in this area), and assuming arguendo that appel-
lants could bring a Monell-type claim against Phillips as head
of the County DA’s office, appellants fail to present any evi-
dence that a municipal policy caused their injury. See Monell
v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 690-
695 (1978) (authorizing municipal liability under § 1983
when a municipality’s “policy or custom” causes a violation
of an individual’s federal rights).
[24] In the district court, the only “policy” the Ewings men-
tioned was the police practice of conferring with the district
attorney’s office before arresting someone for murder. We fail
to see how such policy, if it qualifies as one, caused appel-
lants’ injuries. See City of Canton v. Harris, 489 U.S. 378,
385 (1989) (“[O]ur first inquiry in any case alleging munici-
pal liability under § 1983 is the question whether there is a
direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.”). The problem here
was not that Reyes conferred with Fleming pursuant to the
policy (as discussed above, courts have long noted that such
consultation is a good idea), it was that Fleming may have
given bad advice. That bad advice cannot be attributed to the
policy or, absent some evidence that he ratified it, to Phillips.
See id. at 387 (“Nor, without more, would a city automatically
be liable under § 1983 if one of its employees happened to
apply the policy in an unconstitutional manner, for liability
16242 EWING v. CITY OF STOCKTON
would then rest on respondeat superior.”); Houghton v. Car-
done, 295 F. Supp. 2d 268, 277 (W.D.N.Y. 2003) (“Where,
however, liability is premised on the policymaker’s approval
of a subordinate’s unlawful act, it must be shown that the
policymaker ratified both the ‘subordinate’s decision and the
basis for it,’ see City of St. Louis v. Praprotnik, 485 U.S. 112,
127 (1988), as municipalities cannot be liable on a theory of
respondeat superior.”). The Ewings also alleged in the com-
plaint that Phillips adopted and ratified the actions of the DA
defendants, but nothing in the record supports this assertion.
Therefore, we must dismiss Phillips from the case.
IV. CONCLUSION
[25] For the foregoing reasons, we affirm in part, reverse
in part and remand for further proceedings. Each party shall
bear its own costs on appeal.