Zyhere Fichman v. Joseph Mercer

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2022
• Docket: 21-16452
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZYHERE L. FICHMAN, No. 21-16452

Plaintiff-Appellant, D.C. No. 3:19-cv-00292-MMD-CLB v.

JOSEPH MERCER, individually and in his MEMORANDUM* official capacity as a Sparks Police Department Officer; CITY OF SPARKS, a municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted June 14, 2022 San Francisco, California

Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.

Plaintiff-Appellant Zyhere Fichman timely appeals the district court’s grant

of Defendant-Appellee Joseph Mercer’s motion for summary judgment. We have

jurisdiction over Fichman’s appeal under 28 U.S.C. § 1291. After reviewing the

district court’s decision de novo, we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On the evening of June 2, 2017, police in Sparks, Nevada received a report

of a residential armed robbery. Mercer was one of the officers who eventually

responded. Based on his interview of the alleged victim, the information he

received from officers who had arrived at the scene before him, and additional

information learned from the immediately ensuing investigation, Mercer arrested

Fichman later that night. The district attorney eventually dropped the charges

against Fichman after the alleged victim stopped cooperating with law

enforcement. Fichman then sued Mercer and the City for allegedly arresting him

without probable cause in violation of Fichman’s Fourth Amendment rights. The

district court dismissed Fichman’s claim against the City, and he does not

challenge that ruling on appeal. The district court subsequently granted Mercer’s

motion for summary judgment, leading to the appeal now before us.

We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party. Bravo v. City of

Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011); see Frudden v. Pilling, 877

F.3d 821, 828 (9th Cir. 2017). “Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient to lead a person of

reasonable caution to believe an offense has been . . . committed by the person

being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

“[P]robable cause means ‘fair probability,’ not certainty or even a preponderance

2 of the evidence.” United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)

(quoting Illinois v. Gates, 462 U.S. 213, 246 (1983)). We make this assessment

based on “the information the officer had at the time of making the arrest.” John v.

City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008).

Here, there was probable cause for Mercer to arrest Fichman. It is

undisputed that the alleged victim knew Fichman and that on the night in question

she said he had been involved in the robbery. It is also uncontroverted that the

alleged victim’s description of the robbers’ getaway car fit the description of

Fichman’s car and that Mercer found Fichman in his car later that evening. Even

viewing these facts and other evidence in the record in the light most favorable to

Fichman, the district court did not err by granting summary judgment to Mercer.

See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010) (“Here, probable

cause was established by the substantial correspondence between the officers’

observations at the time of the arrest and the details that [the victim] had provided

to the police concerning the crime, the individuals involved, their vehicle, and the

location where the perpetrators operated.”).

Fichman’s theory—that Mercer planted Fichman’s name in the alleged

victim’s mind and ignored exculpatory evidence based on a vendetta Mercer

purportedly had against Fichman—finds no support in the evidence. Mercer and

Fichman had only briefly interacted before the night in question, such that Fichman

3 did not even remember doing so, and there is no apparent motive for Mercer to

frame Fichman. Fichman also admits that he has no proof that Mercer fabricated or

tampered with evidence, or that Mercer withheld exculpatory evidence. Other

disputed facts Fichman identified are immaterial. Some relate to events after the

night of the robbery and thus have little relevance to Mercer’s decision to arrest

Fichman. And although Fichman contends that Mercer’s investigation overlooked

points that might have undermined the alleged victim’s identification of him,

probable cause does not require certainty, but only a fair probability. Even granting

that questions and uncertainties remained, we conclude that the key undisputed

facts known to Mercer on the night of the robbery were sufficient, as a matter of

law, to lead a reasonably cautious person to conclude that Fichman was involved in

that robbery. Because the undisputed facts show that Mercer had probable cause to

arrest Fichman, Mercer’s motion for summary judgment was properly granted.

Finally, the parties disagree about certain evidentiary rulings made by the

district court in conjunction with the motion for summary judgment. Because our

holding would not change even if we resolved all these disputes in Fichman’s

favor, we decline to address the merits of these evidentiary issues.

The district court is AFFIRMED.