NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALLEN BERNARD SHAY, No. 17-55918
Plaintiff-Appellant, D.C. No. 2:15-cv-04607-CAS-RAO v.
COUNTY OF LOS ANGELES; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding
Argued and Submitted January 10, 2019 Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District Judge.
Allen Shay appeals the District Court’s grant of summary judgment in favor
of the County of Los Angeles, Los Angeles County Sheriff’s Department, and
Deputy Christopher Derry. We have jurisdiction pursuant to 28 U.S.C. § 1291.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Shay alleges that Derry obtained a warrant for his arrest that was not
supported by probable cause and was obtained through judicial deception in
violation of the Fourth Amendment and 42 U.S.C. § 1983. The warrant was based
on Shay’s activities associated with fraudulent loan applications submitted by
Eddie Turner, Shay’s client and friend. Based on these alleged violations, Shay
also asserts that the Defendants falsely imprisoned him and violated the Tom Bane
Civil Rights Act, California Civil Code § 52.1. Shay further alleges that Derry
violated his Fourth Amendment rights by defaming him in a press statement
regarding his arrest. Finally, Shay contends that pursuant to the Defendants’
practice of moving to deny bail until a hearing can be convened in all felony fraud
cases, and Derry’s false statements made pursuant to this practice, Shay spent
eleven days in jail in violation of his Eighth and Fourteenth Amendment rights.
The warrant for Shay’s arrest was supported by probable cause. The District
Court listed a myriad of reasons bolstering this conclusion. Shay v. Cnty. of Los
Angeles, No. 15-cv-4607, 2017 WL 4679268, at *7-8 (C.D. Cal. June 5, 2017).
Shay did not seriously contest any of the stated reasons except Derry’s conclusion
that Shay worked in concert with Turner and made materially false and misleading
representations. Id. at *8.
2 Having reviewed the record de novo,1 viewing the facts in the light most
favorable to Shay,2 disregarding Derry’s conclusory statement in the warrant
application that Shay acted in concert with Turner and made false and misleading
representations, and considering Derry’s alleged omissions from the warrant
application,3 we conclude that, separate from Turner, the record contains
“reasonably trustworthy information sufficient to warrant a prudent person in
believing that [Shay] had committed or was committing an offense.” United States
v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988). As a result, no
rational factfinder could conclude that the neutral judge who issued the warrant did
not have a “substantial basis” to find that: (1) Turner had committed fraud; (2)
Shay had acted as Turner’s real estate broker; and (3) given the actions Shay took
in facilitating the fraudulent loan applications, Shay participated in the fraud. See
United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1988).
1 See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 2 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 3 See Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995) (providing that to maintain a judicial deception claim, the plaintiff must make a substantial showing of a deliberate falsehood or reckless disregard for the truth and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant). Here, the warrant contains probable cause even without the alleged falsehoods and with the alleged omissions.
3 Because probable cause existed for the arrest warrant and Derry did not
make any material misstatements or omissions in the warrant application, no
constitutional violation occurred in connection with the arrest. Therefore, the
District Court properly granted summary judgment in the Defendants’ favor on: (1)
Shay’s Fourth Amendment claims regarding the arrest, judicial deception claim,
and defamation-plus claim; (2) Shay’s Bane Act claim;4 and (3) Shay’s false
imprisonment claim.5
However, genuine disputes over material facts preclude summary judgment
on Shay’s Eighth and Fourteenth Amendment claims concerning the allegedly
false declaration Derry submitted in support of a “1275 hold motion”6 which led to
Shay being incarcerated without access to bail.
4 The statute requires a violation of a statutory or constitutional right, which, in this case, Shay alleges are his Fourth Amendment rights. See Cal. Civ. Code § 52.1(b). In that Shay’s Fourth Amendment rights were not violated, he cannot maintain a Bane Act claim. 5 Under California law, false imprisonment requires confinement “without lawful privilege.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1205 (9th Cir. 2003). Because there was probable cause to arrest Shay, Derry had the lawful privilege to detain him. Derry is also immune to this claim under California Civil Code § 43.55 and California Penal Code § 847 because he lawfully arrested Derry pursuant to a warrant containing probable cause and there is insufficient evidence that Derry acted with malice in doing so. 6 A 1275 hold motion is an ex parte motion requesting that no bail funds be accepted on the defendant’s behalf until a hearing is held to determine whether any of the bail funds were obtained feloniously. See Cal. Penal Code § 1275.1.
4 In order to hold Shay without bail, Derry submitted a declaration with the
1275 motion providing: “[a]fter a review of the facts in this matter, I believe that
the defendant has had access to significant amounts of monies feloniously obtained
from theft.” However, Derry was aware that any allegedly feloniously obtained
funds received by Shay were relatively small (around $50,000) and obtained seven
years previously. Derry performed no additional investigation into the likelihood
that Shay possessed such funds at the present time. Instead, Derry testified that he
signed the declaration because it was a countywide “standard practice to request a
bail hearing in felony theft cases,” regardless of the circumstances. Derry was
required under California law to set forth probable cause that the bail money was
feloniously obtained. Cal.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALLEN BERNARD SHAY, No. 17-55918
Plaintiff-Appellant, D.C. No. 2:15-cv-04607-CAS-RAO v.
COUNTY OF LOS ANGELES; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding
Argued and Submitted January 10, 2019 Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District Judge.
Allen Shay appeals the District Court’s grant of summary judgment in favor
of the County of Los Angeles, Los Angeles County Sheriff’s Department, and
Deputy Christopher Derry. We have jurisdiction pursuant to 28 U.S.C. § 1291.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Shay alleges that Derry obtained a warrant for his arrest that was not
supported by probable cause and was obtained through judicial deception in
violation of the Fourth Amendment and 42 U.S.C. § 1983. The warrant was based
on Shay’s activities associated with fraudulent loan applications submitted by
Eddie Turner, Shay’s client and friend. Based on these alleged violations, Shay
also asserts that the Defendants falsely imprisoned him and violated the Tom Bane
Civil Rights Act, California Civil Code § 52.1. Shay further alleges that Derry
violated his Fourth Amendment rights by defaming him in a press statement
regarding his arrest. Finally, Shay contends that pursuant to the Defendants’
practice of moving to deny bail until a hearing can be convened in all felony fraud
cases, and Derry’s false statements made pursuant to this practice, Shay spent
eleven days in jail in violation of his Eighth and Fourteenth Amendment rights.
The warrant for Shay’s arrest was supported by probable cause. The District
Court listed a myriad of reasons bolstering this conclusion. Shay v. Cnty. of Los
Angeles, No. 15-cv-4607, 2017 WL 4679268, at *7-8 (C.D. Cal. June 5, 2017).
Shay did not seriously contest any of the stated reasons except Derry’s conclusion
that Shay worked in concert with Turner and made materially false and misleading
representations. Id. at *8.
2 Having reviewed the record de novo,1 viewing the facts in the light most
favorable to Shay,2 disregarding Derry’s conclusory statement in the warrant
application that Shay acted in concert with Turner and made false and misleading
representations, and considering Derry’s alleged omissions from the warrant
application,3 we conclude that, separate from Turner, the record contains
“reasonably trustworthy information sufficient to warrant a prudent person in
believing that [Shay] had committed or was committing an offense.” United States
v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988). As a result, no
rational factfinder could conclude that the neutral judge who issued the warrant did
not have a “substantial basis” to find that: (1) Turner had committed fraud; (2)
Shay had acted as Turner’s real estate broker; and (3) given the actions Shay took
in facilitating the fraudulent loan applications, Shay participated in the fraud. See
United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1988).
1 See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 2 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 3 See Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995) (providing that to maintain a judicial deception claim, the plaintiff must make a substantial showing of a deliberate falsehood or reckless disregard for the truth and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant). Here, the warrant contains probable cause even without the alleged falsehoods and with the alleged omissions.
3 Because probable cause existed for the arrest warrant and Derry did not
make any material misstatements or omissions in the warrant application, no
constitutional violation occurred in connection with the arrest. Therefore, the
District Court properly granted summary judgment in the Defendants’ favor on: (1)
Shay’s Fourth Amendment claims regarding the arrest, judicial deception claim,
and defamation-plus claim; (2) Shay’s Bane Act claim;4 and (3) Shay’s false
imprisonment claim.5
However, genuine disputes over material facts preclude summary judgment
on Shay’s Eighth and Fourteenth Amendment claims concerning the allegedly
false declaration Derry submitted in support of a “1275 hold motion”6 which led to
Shay being incarcerated without access to bail.
4 The statute requires a violation of a statutory or constitutional right, which, in this case, Shay alleges are his Fourth Amendment rights. See Cal. Civ. Code § 52.1(b). In that Shay’s Fourth Amendment rights were not violated, he cannot maintain a Bane Act claim. 5 Under California law, false imprisonment requires confinement “without lawful privilege.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1205 (9th Cir. 2003). Because there was probable cause to arrest Shay, Derry had the lawful privilege to detain him. Derry is also immune to this claim under California Civil Code § 43.55 and California Penal Code § 847 because he lawfully arrested Derry pursuant to a warrant containing probable cause and there is insufficient evidence that Derry acted with malice in doing so. 6 A 1275 hold motion is an ex parte motion requesting that no bail funds be accepted on the defendant’s behalf until a hearing is held to determine whether any of the bail funds were obtained feloniously. See Cal. Penal Code § 1275.1.
4 In order to hold Shay without bail, Derry submitted a declaration with the
1275 motion providing: “[a]fter a review of the facts in this matter, I believe that
the defendant has had access to significant amounts of monies feloniously obtained
from theft.” However, Derry was aware that any allegedly feloniously obtained
funds received by Shay were relatively small (around $50,000) and obtained seven
years previously. Derry performed no additional investigation into the likelihood
that Shay possessed such funds at the present time. Instead, Derry testified that he
signed the declaration because it was a countywide “standard practice to request a
bail hearing in felony theft cases,” regardless of the circumstances. Derry was
required under California law to set forth probable cause that the bail money was
feloniously obtained. Cal. Penal Code § 1275.1(b)(1). We conclude that under
these circumstances, a reasonable jury could find that Derry failed to follow this
law and submitted the declaration and deprived Shay of bail with deliberate
indifference to or reckless disregard for Shay’s rights. See Tatum v. Moody, 768
F.3d 806, 820-21 (9th Cir. 2014).
We further conclude that summary judgment is inappropriate regarding
Shay’s associated municipal liability claim under Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978). Shay contends, inter alia:
(1) that Derry, with deliberate indifference, deprived him of his Eighth and
Fourteenth Amendment rights by submitting the declaration in support of the 1275
5 motion; and (2) that the moving force behind this deprivation was the countywide
long-standing practice of filing boilerplate 1275 motions in all felony fraud cases.
See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Having found
factual issues regarding the prerequisite constitutional violation, we further
conclude that Derry’s testimony about the countywide practice generates a genuine
dispute of material fact concerning the existence of a long-standing municipal
practice that drove the alleged constitutional violations.
Because no reasonable factfinder could conclude that the arrest warrant
lacked probable cause or contained material misstatements or omissions, we affirm
the District Court’s grant of summary judgment in favor of the Defendants on
Shay’s Fourth Amendment claims, Bane Act claim, and false imprisonment claim.
However, we reverse the District Court’s grant of summary judgment regarding
Shay’s Eighth and Fourteenth Amendment claims associated with Derry’s
submission of the declaration in support of the 1275 motion and Shay’s subsequent
incarceration for eleven days without bail or the legitimate consideration of bail.
We remand for further proceedings consistent with this decision. The parties shall
bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.