Robert Yousefian v. City of Glendale , 779 F.3d 1010 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT YOUSEFIAN, No. 12-57269
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-03579-
DMG-MAN
CITY OF GLENDALE; MICHAEL
LIZARRAGA; PETROS KMBIKYAN,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted
February 5, 2015—Pasadena California
Filed March 5, 2015
Before: Stephen Reinhardt and Ronald M. Gould, Circuit
Judges, and Robert W. Gettleman, Senior District Judge.*
Opinion by Judge Reinhardt
*
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by
designation.
2 YOUSEFIAN V. CITY OF GLENDALE
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought pursuant to 42 U.S.C. § 1983 alleging
false arrest and malicious prosecution.
Plaintiff was arrested by City of Glendale police officers
for an alleged assault on his father-in-law. After plaintiff’s
arrest, plaintiff’s wife met with one of the police officers and
gave him drugs which she purported to have found in
plaintiff’s car. Soon thereafter, the police officer and
plaintiff’s wife began a sexual relationship. Plaintiff was
charged with assault, elder abuse and two counts of drug
possession. The drug charges were eventually dismissed for
lack of probable cause, a jury acquitted plaintiff of the assault
and elder abuse charges and, after conducting an internal
investigation, the City terminated the police officer for
conduct inconsistent with the proper administration of the
department and unbecoming an officer.
The panel held that notwithstanding plaintiff’s self-
defense claim, there was indisputably probable cause to arrest
and prosecute plaintiff for assault and elder abuse. The panel
further determined that because the police officer’s romantic
relationship with plaintiff’s wife began after all of the
evidence relating to the altercation had been collected and
documented in official reports, the police officer’s later
misconduct did not undermine the existence of probable
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
YOUSEFIAN V. CITY OF GLENDALE 3
cause. The panel also affirmed the summary judgment as to
the individual defendants on the malicious prosecution claim
arising from the charge of drug possession on the grounds
that plaintiff failed to demonstrate a Fourth Amendment
seizure. Finally, the panel held that because plaintiff’s § 1983
claims against the individual police officers failed, his
municipal liability claim also necessarily failed. The panel
urged municipalities and other employers of law enforcement
officers to ensure that conduct like the police officer’s in this
case is neither permitted in the course of officers’ official
duties nor condoned thereafter.
COUNSEL
Mark J. Geragos (argued), Shelley Kaufman, and Tina
Glandian, Geragos & Geragos, Los Angeles, California, for
Plaintiff-Appellant.
Ann Marie Maurer (argued), Senior Assistant City Attorney,
and Michael J. Garcia, City Attorney, Glendale City
Attorney’s Office, Glendale, California, for Defendants-
Appellees City of Glendale and Petros Kmbikyan.
David D. Lawrence I (argued) and Christina M. Sprenger,
Lawrence Beach Allen & Choi, Glendale, California; Daniel
S. Cha, Lawrence Beach Allen & Choi, Santa Ana,
California, for Defendant-Appellee Michael Lizarraga.
4 YOUSEFIAN V. CITY OF GLENDALE
OPINION
REINHARDT, Circuit Judge:
In this § 1983 false arrest and malicious prosecution case,
the district court granted summary judgment to both
defendant officers and to the City of Glendale (sued under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). We
affirm.1
I.
On August 19, 2007, Robert Yousefian called the police
to report that he had been attacked by his father-in-law,
Matavos Moradian, in his home. Officer Michael Lizarraga
of the Glendale Police Department responded, as did three
other officers. They saw Moradian, an elderly man, lying on
the floor, bleeding profusely from a wound to his head.
Yousefian, by contrast, was not seriously injured and refused
any medical care. Everyone agreed that Yousefian struck
Moradian in the head with a glass candle-holder. Yousefian
claimed he did so to defend himself, after Moradian began to
hit him with his cane, while Moradian and his wife told police
that no such provocation had occurred. Yousefian told the
officers that he had asked his in-laws to come over to discuss
the whereabouts of his estranged wife, Nora2 – Moradian’s
1
Because we are reviewing a grant of summary judgment, we construe
the record in the light most favorable to the non-moving party, Yousefian.
A grant of summary judgment is reviewed de novo, and we may affirm on
any ground supported by the record. Devereaux v. Abbey, 263 F.3d 1070,
1074 (9th Cir. 2001).
2
Nora is referred to here by her first name because she shares a surname
with the plaintiff, her ex-husband.
YOUSEFIAN V. CITY OF GLENDALE 5
daughter – and the couple’s children. In his statement to the
police, Yousefian also accused Nora of various forms of
sexual impropriety. Lizarraga placed Yousefian under arrest
for assault with a deadly weapon. Yousefian was booked at
the police station and, later that evening, released on bond.
Lizarraga prepared and filed a report describing the physical
evidence at the scene and the statements of Yousefian,
Moradian, and Moradian’s wife, concluding that he found
probable cause to arrest Yousefian on the basis of those facts.
The reports filed by the other responding officers
corroborated the facts as Lizarraga described them.
In the late afternoon, Lizarraga met Nora (who had not
been home at the time of the altercation) at the hospital where
Moradian was receiving treatment for his injuries. Nora
accused Yousefian of drug possession, and urged Lizarraga
to search his car and home. Lizarraga declined, but gave Nora
his cell phone number and told her to call him if she found
any drugs. Shortly thereafter, Nora called, and told him that
she had found drugs in Yousefian’s car. When Lizarraga and
another officer arrived, she handed them drugs she purported
to have found. Lizarraga booked them into evidence but did
not re-arrest Yousefian.
Soon thereafter, Lizarraga began to flirt with Nora by text
message, and within a couple of weeks, they began a sexual
relationship, which lasted about a year. Lizarraga told neither
his supervisors nor the prosecutors involved in the case about
the affair.
After Yousefian was arrested, the case was turned over to
Detective Petros Kmbikyan, whom Deputy District Attorney
Singer asked to conduct a follow-up investigation. Lizarraga
had no more involvement in the case until after charges were
6 YOUSEFIAN V. CITY OF GLENDALE
filed. He did not discuss the case with Singer, and did not
sign the criminal complaint. His only further involvement
was as described infra.
Kmbikyan’s investigation, conducted in October 2007,
approximately two months after the arrest, included a re-
enactment of the assault with Moradian and his wife, but
centered mainly on the drugs. Kmbikyan conducted a
voluntary interview with Yousefian. Yousefian requested that
he be allowed to record the interview, but Kmbikyan assured
him it would be taped. Apparently, no recording was made,
because of “some sort of malfunction or the volume being
turned off.” Kmbikyan told Yousefian that his fingerprints
had been found on the plastic bags containing the drugs Nora
had handed over (this was not true), but Yousefian
maintained that she had planted them. Kmbikyan suggested
in his report that Yousefian’s agitation might be a symptom
of narcotic use but failed to document Yousefian’s offer to
take a polygraph or hair follicle drug test. Additionally,
Kmbikyan received a fax from Nora containing the negative
results of a series of drug tests Yousefian had taken; she
asked him to verify their validity. Kmbikyan did not inform
Singer that he had received this probative evidence until after
the preliminary hearing.
At the end of October 2007, Yousefian was charged with
four felony counts: assault, elder abuse, and two counts of
drug possession. At his arraignment, in December of that
year, Yousefian was released on his own recognizance; the
court required that he stay away from the victims of the
assault, and not possess weapons or drugs. At the preliminary
hearing, which was held in June and August, 2008, both
Lizarraga and Kmbikyan testified (along with Moradian and
Nora). Lizarraga’s testimony was in all respects consistent
YOUSEFIAN V. CITY OF GLENDALE 7
with the documentation in his police report of evidence
gathered at the scene. The defense called Kmbikyan, who
testified that Yousefian had played for him voicemail
messages left by Nora, threatening retribution if Yousefian
called the police (as he did after the altercation with
Moradian). The magistrate held him to answer on the assault
and elder abuse charges, but dismissed the drug possession
charges for lack of probable cause, concluding that Nora had
fabricated evidence.
In February 2010, in preparation for trial, another
prosecutor, Deputy District Attorney Worchell, met
consecutively with Lizarraga and Nora, who bumped into
each other in the hallway (at this point, they were no longer
having an affair). Text message records reveal that after the
encounter, Lizarraga told Nora that they should lie in order to
conceal their relationship. He also assured her that a minor
inconsistency in her parents’ stories about the assault was
“not . . . too big a deal.” When Yousefian’s defense counsel
obtained these cell phone records, in May of that year, he
informed the prosecutor (who informed Kmbikyan) of them.
Lizarraga then admitted the affair. Worchell decided to
continue with the case, concluding that “[t]here was no need
to dismiss any charges here as a result of that relationship.
That, I can tell you for certain.”
At trial, Lizarraga was questioned about, and
acknowledged, his relationship with Nora, which he
characterized as “friends with benefits.” On July 8, 2010, the
jury acquitted Yousefian of the two remaining charges –
assault and elder abuse.
8 YOUSEFIAN V. CITY OF GLENDALE
The police department conducted an internal affairs
investigation of Lizarraga.3 Initially, it was conducted by
Sergeant Glassick, who was apparently a friend and mentor
of Lizarraga’s. The investigation was completed by another
Sergeant, however, after Lizarraga revealed that, some
months earlier, he had disclosed his affair to Glassick, who
said “he didn’t think it was that big a deal and [that Lizarraga]
didn’t have anything to worry about but [that] as a courtesy
to the District Attorney before [he took] the stand for the trial,
[he] ha[d] to tell him about it.” Lizarraga also told
investigators that he had previously given his cell phone
number to women he met on duty, and that he had developed
relationships with some, but never before with a suspect,
witness, or victim. Sergeant Alpuerto, one of Lizarraga’s
supervisors, stated that he did not believe Lizarraga’s actions
had violated any policy because the officer “knew of other
officers who ‘met people on jobs and started relationships or
friendships that way’ and ‘didn’t see anyone getting
disciplined for that.’” At the conclusion of the investigation,
in August 2010, Lizarraga was terminated for conduct
inconsistent with the proper administration of the department
and unbecoming an officer. The termination letter stated that
although the affair
had no bearing on the grounds for Mr.
Yousefian’s arrest, it nonetheless clouded the
issues at the trial and impacted the
prosecution by requiring the Deputy District
Attorney to respond to collateral issues on the
3
Some of the records related to this investigation were filed under seal.
However, the parties’ public briefs quoted from these records without
objection; we rely on that now-public material in describing the facts of
this case.
YOUSEFIAN V. CITY OF GLENDALE 9
eve of trial. . . . You made a series of poor
decisions that colored the objectivity of the
arrest, the investigation, and the subsequent
court proceedings.
II.
The absence of probable cause is a necessary element of
§ 1983 false arrest and malicious prosecution claims. Barry
v. Fowler, 902 F.2d 770, 772–73 (9th Cir. 1990); Awabdy v.
City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004).
Here, there was indisputably probable cause to arrest and
prosecute Yousefian for assault and elder abuse. A police
officer who finds an elderly and infirm man bleeding
profusely from a head wound admittedly inflicted by a
younger man without significant injuries will have probable
cause to believe that the latter has committed assault. Further,
the victims and his wife both told the officers at the scene that
Yousefian had attacked him without provocation. Because
Lizarraga’s romantic relationship with Nora began after all of
the evidence relating to the altercation had been collected
and documented in official reports (by Lizarraga and the
other responding officers), his later misconduct does nothing
to undermine the existence of probable cause.4
4
As noted supra, Lizarraga’s subsequent testimony was limited to
recounting what was in his previously filed police reports.
Yousefian’s claims regarding Kmbikyan’s alleged misconduct relate
not to the assault and elder abuse charges, but rather to the failure to
disclose to the prosecutor evidence related to the drug charges.
10 YOUSEFIAN V. CITY OF GLENDALE
Yousefian argues that a jury could conclude that probable
cause was lacking because he himself called the police to the
scene and told them that he struck his father-in-law in self-
defense. However, probable cause requires only that those
“facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe ‘that the
suspect has committed . . . an offense.’” Barry, 902 F.2d at
773 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)). Certainly, an officer may not ignore exculpatory
evidence that would “negate a finding of probable cause.”
Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003).
Lizarraga did not ignore Yousefian’s protestations, however;
he documented them in his report, but simply believed
Moradian and his wife’s version of the incident to be more
credible. The mere existence of some evidence that could
suggest self-defense does not negate probable cause.
Yousefian’s claim of self-defense apparently created doubt in
the minds of the jurors, but probable cause can well exist (and
often does) even though ultimately, a jury is not persuaded
that there is proof beyond a reasonable doubt. See Borunda v.
Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). Here,
notwithstanding the self-defense claim, a jury could not
reasonably have concluded that the facts known to Lizarraga
were insufficient to establish probable cause and thus –
contrary to the magistrate’s determination – that probable
cause was lacking.5
5
At oral argument and in the briefs, Yousefian’s counsel cited
Hernandez v. City of Napa, 781 F. Supp. 2d 975 (N.D. Cal. 2011), which
found a triable question of fact as to whether there was probable cause to
arrest a woman who called the police to her own home during a domestic
dispute. However, that case is neither controlling precedent nor
persuasive.
YOUSEFIAN V. CITY OF GLENDALE 11
Because no reasonable jury could conclude that there was
no probable cause for the arrest or for prosecution on the
assault and elder abuse charges, we need not decide whether
the magistrate’s probable cause determination at the
preliminary hearing would collaterally estop relitigation of
the issue, or whether the prosecutor exercised independent
judgment in filing the charges. See Awabdy, 368 F.3d at
1067–68. Summary judgment as to the individual defendants
on the assault and elder abuse claims is affirmed.
As for the drug charges, no arrest occurred. Yousefian
urges only a claim of malicious prosecution. For such a claim
to be cognizable under § 1983, in addition to showing that the
defendants prosecuted him with malice and without probable
cause, a plaintiff must demonstrate a Fourth Amendment
seizure (or the violation of another such “explicit textual
source of constitutional protection”). See Albright v. Oliver,
510 U.S. 266, 271–75 (1994); Freeman v. City of Santa Ana,
68 F.3d 1180, 1189 (9th Cir. 1995).
The only seizure Yousefian could arguably have suffered
as a result of his prosecution on the simple drug possession
charges was being subjected to own-recognizance (OR)
release conditions6 between the time of his arraignment and
the time of his preliminary hearing. Those conditions would,
6
According to statute, these release conditions require defendants to
appear for all hearings and to request permission before leaving the state.
Cal. Penal Code § 1318(a). Our case law does not make clear whether
California’s OR release conditions, as applied to a defendant facing felony
charges, constitute a Fourth Amendment seizure. In Karam v. City of
Burbank, 352 F.3d 1188, 1193–94 (9th Cir. 2003), we held that the same
conditions, as applied to a defendant facing only misdemeanor charges,
did not, but left open the question as it applies to a defendant facing felony
charges. We need not, and do not, resolve that question here.
12 YOUSEFIAN V. CITY OF GLENDALE
however, have applied to him in any event, because during
that period, he was subjected to those same conditions in
connection with his OR release on the assault and elder abuse
charges. In some cases, the inclusion of charges unsupported
by probable cause in addition to charges that are supported
might result in more restrictive conditions of release or
increased bond. Here, however, the same release conditions
– the minimum conditions required by statute – were imposed
on both sets of charges. Moreover, the same conditions
remained in place after the drug charges were dismissed.
Even assuming that subjecting Yousefian to the OR release
conditions constituted a seizure, he would have been
subjected to that seizure regardless of the filing of the drug
possession charges. The OR release conditions were properly
imposed as a result of the assault and elder abuse charges, and
would have restrained Yousefian’s liberty (assuming it was
restrained) in exactly the same manner and to precisely the
same degree, regardless of the filing of the drug possession
charges. Thus, the drug prosecution was not the cause of
Yousefian’s suffering any restraint he would not otherwise
have suffered. See Harper v. City of L.A., 533 F.3d 1010,
1026 (9th Cir. 2008). In sum, Yousefian suffered no civil
rights injury as a result of the OR release conditions in
connection with the drug possession charges, and thus
summary judgment as to the individual defendants on the
drug possession claim is affirmed.
III.
As the district court correctly noted, municipalities cannot
be held liable when the individual police officer has inflicted
no constitutional injury. See City of L.A. v. Heller, 475 U.S.
796, 799 (1986) (per curiam); Jackson v. City of Bremerton,
268 F.3d 646, 653–54 (9th Cir. 2001). Because Yousefian’s
YOUSEFIAN V. CITY OF GLENDALE 13
§ 1983 claims against Lizarraga and Kmbikyan fail, his
municipal liability claim also necessarily fails.
* * *
The behavior of Officer Lizarraga was certainly
reprehensible – as the City of Glendale recognized in firing
him. Although it did not do so here, such conduct by police
officers puts in jeopardy the integrity of legitimate
prosecutions and jeopardizes defendants’ right to a fair trial.
This is not the first case we have had in recent months in
which a police officer in Los Angeles County has engaged in
similar conduct with a woman involved in a case which the
officer was assigned to investigate. See Hernandez v.
Kennedy, No. 12-55023, 2014 WL 6956890 (9th Cir. Dec. 10,
2014) (unpublished). Fortunately, because Lizarraga’s
improper conduct in no way affected the question whether
there was probable cause to arrest and prosecute Yousefian
for assault and elder abuse, the false arrest and malicious
prosecution claims regarding those charges fail. Yousefian’s
malicious prosecution claim with respect to Kmbikyan’s
actions with respect to the drug charges also fails, because
Yousefian suffered no injury that he would not otherwise
have suffered as a result of the filing of these charges, and
thus incurred no constitutional injury on account of them.
Because no constitutional violation occurred, there can be no
Monell liability on the part of the City of Glendale. Still, we
would urge municipalities and other employers of law
enforcement officers to ensure that conduct like Lizarraga’s
is neither permitted in the course of officers’ official duties
nor condoned thereafter. In doing so, we intimate no criticism
14 YOUSEFIAN V. CITY OF GLENDALE
of the City of Glendale, which took the appropriate action
after Lizarraga’s conduct came to light.
AFFIRMED.