                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MANSOUR AREKAT, individually and                 No. 06-16074
in his capacity as chief operating officer
and owner of Areµat Pacific Security Inc.        D.C. No. CV-03-00710-BMK
a Hawaii corporation dba A.P.I. Security,
Inc.,
                                                 MEMORANDUM *
             Plaintiff - Appellant,

  v.

LEE D. DONOHUE; CITY AND
COUNTY OF HONOLULU; LETHA DE
CAIRES; MIKE MIRANDA; RAYMOND
ANCHETA; JOHN DOES 1-25,

             Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Hawaii
                   Barry M. Kurren, Magistrate Judge, Presiding

                       Argued and Submitted March 13, 2008
                            San Francisco, California

Before: REINHARDT, FISHER, and CALLAHAN, Circuit Judges.**


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        *
             *
             Due to the death of Judge Brunetti, Judge Callahan was drawn to
replace him on the panel.
      Plaintiff-Appellant Mansour Areµat appeals the district court's denial of his

renewed motion for judgment as a matter of law in the underlying y 1983 action.

See Fed R. Civ. P. 50(b). We review de novo the district court's order denying his

motion. See Art Attacµs Inµ, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th

Cir. 2009). A movant is entitled to judgment as a matter of law if the evidence

presented at trial, when viewed in the light most favorable to the nonmoving party,

would not permit a reasonable juror to find in the nonmoving party's favor. See

Torres v. City of Los Angeles, 548 F.3d 1197, 1205-06 (9th Cir. 2008). We do not

'weigh the evidence' favoring the movant against that adduced by the nonmoving

party but rather 'simply asµ whether the [defendants] ha[ve] presented sufficient

evidence to support the jury's conclusion.' Harper v. City of Los Angeles, 533

F.3d 1010, 1021 (9th Cir. 2008).

      Defendants tooµ Areµat into custody without a warrant and without any

other judicial process, and transported him to a medical facility for a psychiatric

examination pursuant to a mental health statute that provides for the '[e]mergency

examination and hospitalization' of certain mentally ill individuals. Haw. Rev.

Stat. y 334-59 (emphasis added). The statute allows police to transport to a

psychiatric facility for evaluation an individual who 'is imminently dangerous to



                                           2
self or others, or is gravely disabled, or is obviously ill.' Id. y 334-59(a)(1)

(emphasis added). The statute, under which Areµat was seized, applies only in

emergencies: Hawaii has a separate set of statutes that govern involuntary

examination and hospitalization in nonemergency situations. Those statutes

require a judicial determination before the authorities may seize and transport a

person to a hospital for an involuntary mental examination. See id. y 334-60.5(g);

see also id. y 334-60.2-.5 (providing additional standards and procedural

protections).

      The Fourth Amendment protects persons from unreasonable seizure by the

government. Seizure of a person alleged to be mentally ill and dangerous, liµe

seizure of a person alleged to have committed a crime, must be supported by

probable cause. See Maag v. Wessler, 960 F.2d 773, 775 (9th Cir. 1991). As

applied to the Hawaii emergency mental health statute, '[p]robable cause exists

when police officers have facts and circumstances within their µnowledge

sufficient to warrant a reasonable belief that' an individual 'is imminently

dangerous to self or others, or is gravely disabled, or is obviously ill.' See United

States v. Noster, 590 F.3d 624, 633 (9th Cir. 2009) (internal quotations, citation

omitted); Haw. Rev. Stat. y 334-59(a)(1). Here, the jury found that such probable

cause existed when the police seized Areµat. The evidence presented at trial,


                                           3
however, was insufficient as a matter of law to permit any reasonable juror to reach

that determination.1 Accordingly, Areµat's 50(b) motion should have been

granted.

      Defendants do not argue that Areµat was 'gravely disabled' or 'obviously

ill,' and there was no evidence in the record to support a finding that either

condition obtained. See Haw. Rev. Stat. y 334-1 (defining the terms). Nor was

there any evidence whatsoever to support a finding that Areµat was a danger to

himself.

             'Dangerous to self' means the person recently has
             threatened or attempted suicide or serious bodily harm; or
             the person recently has behaved in such a manner as to
             indicate that the person is unable, without supervision and
             the assistance of others, to satisfy the need for nourishment,
             essential medical care, shelter or self-protection, so that it
             is probable that death, substantial bodily injury, or serious
             physical debilitation or disease will result unless adequate
             treatment is afforded.

Id.; see also In re Doe, 78 P.3d 341, 366-67 (Haw. Ct. App. 2003) (finding

insufficient evidence based on racist remarµs and refusal to taµe psychiatric




      1
        The dissent locates evidence that the plaintiff posed a credible threat in that
section of the FBI report which stated that 'Areµat alluded that he might µill [] if
this harassment continued and he slept with his 'finger on the trigger.'' This
section of the FBI report was not introduced into evidence, however, and thus was
not before the jury.

                                           4
medication). That leaves only 'imminent[] dangerous[ness] to others' as a

possible basis for a finding of probable cause.

      'Dangerous to others' as defined in the statute requires evidence of a 'recent

act, attempt or threat' showing that the person is not just mentally ill, but actually

'liµely to do substantial physical or emotional injury to another.' Haw. Rev. Stat.

y 334-1 (emphasis added); In re Doe, 78 P.3d at 366 (holding that mental illness

alone is insufficient to demonstrate imminent and substantial dangerousness). The

evidence the jury had before it was insufficient to support a determination that

defendants had probable cause to believe that Areµat was a danger to others, let

alone that he was imminently dangerous or even that he suffered from a serious

mental illness. Nor was there any evidence that there was an emergency that

would warrant invocation of the emergency statute rather than the parallel non-

emergency statute.

      We next review the evidence submitted to the jury. Defendants' only

observation of plaintiff before taµing him into custody revealed no signs of

threatening behavior; rather, the arresting officers described him as being 'calm

and cooperative.' Accordingly, probable cause would have had to come from

other sources. Much of the evidence relied upon by defendants is simply

irrelevant. Areµat's demeanor and statements made after he was seized by


                                           5
defendants cannot provide the probable cause that defendants were required to

have before they seized him. His post-arrest statements, moreover, concerned only

his belief that his business competitors were conspiring to harm him, and his

concern that his unwarranted seizure was a product of that conspiracy. These

statements contained no threats or other indications of possible violence against

anyone. That Areµat, who owned a security company, had access to legally

registered firearms was also not indicative of dangerousness to others because

defendants provided no evidence of recent use or threatened use of the weapons

against anyone. The evidence that the jury heard regarding Areµat's self-initiated

interview with the FBI, the only portion of the interview materials that can support

the challenged jury findings, concerned his belief that he was under surveillance by

his business competitors and that those competitors were involved in organized

crime. It included no report of an 'act, attempt or threat' on Areµat's part that

would give rise to a reasonable belief that he was 'liµely to do substantial physical

or emotional injury to' anyone, let alone that there was an imminent threat of such

action on his part. Areµat's FBI interview, moreover, tooµ place more than a

month before his arrest, and thus his conduct in that interview could not, as a

matter of law, constitute the recent conduct demonstrating imminent

dangerousness that is required by the Hawaii emergency statute under which he


                                          6
was detained. Cf. Haw. Rev. Stat. y 334-60.3 (limiting inclusion of materials in a

petition for involuntary hospitalization to reflect evaluations within two or five

days, depending on the context of the examination).

      The remaining evidence on which defendants rely is the information that

they received from David Engle, a disgruntled and recently discharged former

employee of Areµat. This information, however, also could not, as a matter of law,

constitute probable cause. For purposes of establishing probable cause, an

arresting officer is permitted to depend on information supplied by a 'reliable'

source. See United States v. Martinez-Garcia, 397 F.3d 1205, 1216-17 (9th Cir.

2005). Engle, however, was not a reliable source. He had no history of providing

reliable information to the police, and all that defendants µnew of him was that he

had several recent criminal convictions, that he was a long time drug addict, and

that he was engaged in a wage dispute with Areµat. Cf. id. (finding an informant

credible based on a 'history of providing credible information to law enforcement'

and having 'never failed a polygraph test'); see also United States v.

Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986) ('A[n] . . . informant's

veracity may be established by the absence of an apparent motive to falsify and

independent police corroboration of the details provided by the informant.').




                                           7
      Even if Engle's information were deemed reliable, it could not constitute

evidence of probable cause for invoµing the emergency mental health examination

and hospitalization statute. First, Engle's allegations concerning Areµat's behavior

at his apartment related to events that tooµ place more than a month before

Areµat's arrest, not 'recent' events. Engle's other allegation - that Areµat

assaulted him when he went to Areµat's place of business and tried to collect a

paychecµ after having been fired - concerned a minor physical confrontation that

at most warranted an investigation as a minor criminal offense. The 'assault'

might have been sufficient to allow police to interview Areµat, and, perhaps, to

seeµ a warrant for his arrest.2 It could not, however, provide evidence that would

support a finding of probable cause that Areµat's mental condition was such that

there was an imminent danger that he would cause serious physical or emotional

injury to Engle or anyone else. In short, when the police seized and transported

Areµat to the hospital three days after his alleged confrontation with Engle, there


      2
        The police officer who interviewed Engle testified that he told her of this
incident '[t]hat there had been some worµplace violence that had occurred when he
went to try to retrieve his paychecµ; and that at the time Mansour Areµat had come
behind the counter from where he was standing, shoved him against the wall, put
his hand bacµ as if he was going to hit him, yelled many different things at him and
made him fearful of his own safety.' This was later confirmed by Engle's
testimony at the trial. Engle said that Areµat had 'c[o]me from behind the counter,
pushed me up against the wall, and called me a few choice names,' in front of a
number of witnesses.

                                          8
was simply no basis for the arresting police officers to believe that he presented an

imminent danger to anyone. Nor was there any basis whatsoever for a reasonable

belief on the part of the officers that Areµat's conduct warranted invocation of the

emergency mental health statute.

      To reiterate, the statute under which Areµat was seized permits an

individual's warrantless seizure and transportation to a psychiatric facility for

evaluation without any judicial procedures or other due process only in emergency

circumstances. Moreover, there must be sufficient reliable information for an

officer to form a reasonable belief that the individual poses an imminent threat of

causing serious physical or mental injury to himself or others. The emergency

provision of the law may not be invoµed in an ordinary criminal investigation, such

as might have been warranted as a result of Engle's complaint. A report by a

disgruntled former employee is precisely the type of allegation that requirees the

full procedural protections of Hawaii's nonemergency involuntary examination

and hospitalization statute. Uncorroborated reports by people with personal

grudges are not sufficient to invoµe the emergency provisions of Hawaii's mental

health law, especially when they are implemented several days after the fact.

      As a matter of law, the only finding or conclusion that was permissible on

the record before the jury is that defendants did not have probable cause to seize


                                           9
Areµat under the emergency mental health statute. The district court's denial of

Areµat's renewed motion for judgment as a matter of law is REVERSED, and the

case is REMANDED to the district court for further proceedings consistent with

this disposition.

       REVERSED and REMANDED.




                                        10
                                                                                FILED
Areµat v. Donohue, No. 06-16074                                                  NOV 19 2010

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S . CO U RT OF AP PE A LS

CALLAHAN, Circuit Judge, dissenting:

       I respectfully dissent. The majority, after properly noting that we do not re-

weigh the evidence when reviewing the denial of a motion for new trial, proceeds

to do exactly that.

       The majority's description of the evidence is a combination of misdirection

and re-weighing of the evidence. It starts by commenting on Areµat's 'calm and

cooperative' attitude when arrested and his unexceptional subsequent behavior. Of

course, the defendants in detaining Areµat did not rely on his behavior when or

after he was detained.

       The majority then attempts to explain away Areµat's suspicious behavior by

noting that he owned a security company and characterizing his interviews with the

FBI as not containing any 'act, attempt or threat.' However, reasonable minds

could consider Areµat's ownership of a security company with access to firearms a

reason to be concerned with Areµat's aberrant behavior. Moreover, the FBI's

report did describe a threat: it stated that 'Areµat alluded that he might µill [] if this

harassment continued and he slept with his 'finger on the trigger.'' Indeed, it

appears that Areµat's own statements to the FBI were one of the reasons the FBI

reported Areµat to the Health Suicide and Crisis Hotline.
      The majority proceeds to sanitize the evidence by determining that Engle

'was not a reliable source.' The majority feels competent to maµe this credibility

determination based on the facts that Engle 'had several recent criminal

convictions,' 'was a long time drug addict,' and 'was engaged in a wage dispute

with Areµat.' It conveniently ignores that both the FBI and the Honolulu Police

Department conducted lengthy interviews with Engle. They determined that Engle

was credible and that his concerns complemented the agencies' concerns that were

based on Areµat's comments and actions. Also, Engle testified at the trial so the

jury was able to maµe its own determination as to his reliability and credibility.

The fact that the majority does not find the evidence as compelling as the jury did

does not justify the majority's re-weighing of the evidence.

      Finally, perhaps uncomfortable with its revision of the evidence, the

majority seeµs to bootstrap its conclusion by asserting that Engle's information

was not - as a matter of law - sufficient to invoµe 'the emergency mental health

examination and hospitalization statute' because some of the events related by

Engle 'tooµ place more than a month before Areµat's arrest.' It then, consistent

with its comfort with re-weighing the evidence, discounts Engle's other allegations

as concerning 'a minor physical confrontation that at most warranted an

investigation as a minor criminal offense.' This characterization is necessary


                                           2
because otherwise the agencies moved promptly as Areµat was detained - as the

majority admits - three days after Engle's confrontation with Areµat. Surely, this

is not an unreasonable amount of time for police officers to consider and

investigate information provided by a person whom the majority claims is 'not a

reliable source' before detaining Areµat.

       The real harm worµed by the majority's decision is not just its impact on the

officers involved, but in leaving police officers no safe course. If the officers had

done nothing and Areµat had proceeded to shoot someone, defendants undoubtedly

would have been sued for failing to detain Areµat. One of the officers explained in

her deposition that this case reminded her of a prior case in which the police had

not removed a firearm from a person who exhibited signs of paranoia, and that

person had used it to µill a person, resulting in a huge civil liability for the police

department and the city. In this case, the defendants made a courageous decision

to detain Areµat. After considering all the evidence presented during a full trial, a

jury found that the officers had probable cause to believe that Areµat was

dangerous to himself or others. The jury's verdict was reasonable and should not

be set aside because two appellate judges, on the cold record, would have weighed

the evidence differently. Accordingly I dissent.




                                            3
