                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 10 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DEMETRIUS HARVEY,                                No. 08-17620

             Plaintiff - Appellant,              D.C. No. 4:07-cv-01681-SBA

  v.
                                                 MEMORANDUM *
CITY OF OAKLAND; et al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: HALL, NOONAN, and THOMAS, Circuit Judges.

       Demetrius Harvey filed this lawsuit against the City of Oakland, Oakland

Police Department, and eight individual police officers based upon his arrest and

detention in connection with the vandalism of two Oakland liquor stores. Harvey

seeks relief under § 1983 for Fourth Amendment violations and under California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
tort law for false arrest, negligence, and negligent infliction of emotional distress.

The district court granted defendants summary judgment on all claims. Harvey

timely appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.

      In analyzing Harvey’s § 1983 claims we must determine whether (a) the

facts that the plaintiff has alleged make out a constitutional violation, and (b) if so,

whether the constitutional right at issue was clearly established at the time of the

violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). We are “permitted to

exercise [our] sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 818

(2009). Because we conclude that defendants did not violate a clearly established

right—and are therefore entitled to qualified immunity—we need not address

whether Harvey has sufficiently demonstrated a Fourth Amendment violation.

      “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “In the context

of a police officer obtaining a warrant, immunity will be lost only where the

warrant application is so lacking in indicia of probable cause as to render official


                                           2
belief in the existence unreasonable.” Mill v. Graves, 930 F.2d 729, 731 (9th Cir.

1991). If reasonable minds could differ as to the existence of probable cause, a

magistrate’s determination that there was probable cause usually establishes that an

officer’s belief was objectively reasonable. KRL v. Estate of Moore, 512 F.3d

1184, 1189 (9th Cir. 2008). “It is inevitable that law enforcement officials will in

some cases reasonably but mistakenly conclude that probable cause is present . . .

In such cases those officials should not be held personally liable.” Rodis v. County

of San Francisco, 558 F.3d 964, 970-71 (9th Cir. 2009).

      We agree with the district court that defendant Sgt. Arotzarena is entitled to

qualified immunity because he could have reasonably believed in light of all the

circumstances that his conduct did not violate the Constitution. Sgt. Arotzarena

based his probable cause determination largely on the tip of a confidential

informant, CI-21. When considering whether an informant’s tip is sufficient to

support probable cause, we employ a “totality of the circumstances” test, taking

into account the informant’s veracity or reliability, and his or her basis of

knowledge. Illinois v. Gates, 462 U.S. 213, 238 (1983). The affidavit in support

of Harvey’s arrest warrant stated that Sgt. Arotzarena personally met with CI-21,

who identified Harvey and several other individuals from a surveillance video and

also from a lineup of DMV photos. See United States v. Rowland, 464 F.3d 899,


                                           3
908 (9th Cir. 2006) (“[A]n agent's face to face encounter with an informant may

bolster an informant’s reliability because officers may perceive and evaluate

personally an informant’s mannerisms, expressions and tone of voice and because

the informant knows that he may be tracked down and held accountable for false

assertions.”). Additionally, eyewitnesses from the San Pablo Market and the

mother of one of the suspects corroborated some of these identifications and did

not contradict any of them. United States v. Angulo-Lopez, 791 F.2d 1394, 1397

(9th Cir. 1986) (“Because an informant is right about some things, he is probably

right about other facts.”). The magistrate judge found these facts sufficient to

support a warrant for Harvey’s arrest.

      The record indicates that Sgt. Arotzarena omitted from his affidavit (1) that

the surveillance video was blurry and (2) that CI-21 initially identified a different

man as Harvey/Asad Bey before correcting himself. Had this information been

included, it may have weakened Sgt. Arotzarena’s support for probable cause.

However, Sgt. Arotzarena’s notes indicate that he also omitted the following facts

that would have strengthened his argument for probable cause: (1) the intelligence

unit of the Oakland Police Department confirmed that Harvey and the other

suspects were associated with Your Black Muslim Bakery; (2) CI-21 told Sgt.

Arotzarena that he formerly worked at the Bakery and was familiar with Harvey


                                          4
and other associates of the Bakery; and (3) CI-21 identified Harvey by age, height,

weight and distinguishing characteristics.

         The totality of the circumstances known to Sgt. Arotzarena when he sought

an arrest warrant provided a reasonable basis for believing that CI-21 was truthful

and had a substantial familiarity with Harvey and the other individuals he

identified. The information included in Sgt. Arotzarena’s affidavit gave rise to at

least disputable probable cause, and “we cannot say that a magistrate would not

have issued the warrant if he had been told all that [Sgt. Arotzarena] knew about

the informants.” Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir.

1997).

         Sgt. Arotzarena also could reasonably believe that it was lawful to detain

Harvey from December 27, 2005 (the date of his arrest) until January 3, 2006 (the

date of his arraignment), despite Harvey’s presentation of an alibi. Assuming that

probable cause supported Harvey’s initial arrest and detention, Sgt. Arotzarena was

under no affirmative duty to further investigate Harvey’s involvement in the

incidents. Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (“Given the

requirements that arrest be made only on probable cause and that one detained be

accorded a speedy trial, we do not think a sheriff executing an arrest warrant is

required by the Constitution to investigate independently every claim of innocence,


                                            5
whether the claim is based on mistaken identity or a defense such as lack of

requisite intent.”). Nevertheless, Sgt. Arotzarena did investigate Harvey’s

involvement after he was detained. He showed four eyewitnesses to the crimes the

surveillance video of the San Pablo Market and a six-pack photo lineup, and two of

the witnesses positively identified Harvey.1 One of the witnesses specifically

stated that Harvey was the individual who had held him up behind the counter.

Although two of the witnesses did not identify Harvey, the post-detention

investigations did not overwhelmingly demonstrate Harvey’s innocence and

provided some additional bases for believing he was involved in vandalizing the

two Oakland liquor stores. Summary judgment in favor of Sgt. Arotzarena

therefore was proper.

      The district court properly granted summary judgment to former Oakland

Police Chief Wayne Tucker, Deputy Chief Howard Jordan, Lt. Gier, Lt. Whitman

and Officer J. Morris. Harvey has not set forth evidence that any of the individual

defendants besides Sgt. Arotzarena were personally involved with the alleged



      1
       These photo lineups were not unduly suggestive because only Harvey and
one other individual were light-skinned African American men. We have held that
minor ethnic variations between a suspect and other individuals in a photo lineup
do not render a lineup constitutionally infirm. See, e.g., United States. v. Portillo,
633 F.2d 1313, 1324 (9th Cir. 1980); see also United States v. Nash, 946 F.2d 679,
681 (9th Cir. 1991).

                                          6
unlawful conduct or that they could be held liable in a supervisory capacity.

al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009).

      The district court also properly granted summary judgment to the City of

Oakland. Harvey has not shown that the City’s failure to adequately train its

employees amounted to a custom or policy giving rise to § 1983 liability. First,

defendants have produced an officer training manual that explicitly instructs

officers to “describe in details the facts showing probable cause for issuance of a

Warrant.” Second, even if the City does not have training materials specifically

stating that officers should include information that undermines probable cause,

there is no showing that Sgt. Arotzarena omitted any information because of a

citywide custom or policy of leaving out such information. Harvey has not shown

that any constitutional violation he suffered can be attributed to an official policy

or custom of the City of Oakland. Lee v. City of Los Angeles, 250 F.3d 668, 681

(9th Cir. 2001).

      For similar reasons that we affirm the district court’s grant of summary

judgment to defendants on Harvey’s § 1983 claims, we affirm the grant of

summary judgment to defendants on Harvey’s state law claims. O’Toole v.

Superior Court, 44 Cal. Rptr. 3d 531, 549-50 (Cal. Ct. App. 2006) (explaining that

officers are not liable for false arrest or false imprisonment under California law if


                                           7
the officer “had reasonable cause to believe the arrest was lawful” (quoting Cal.

Penal. Code § 847)).

AFFIRMED.




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                                                                               FILED
Harvey v. City of Oakland, No. 08-17620                                        MAY 10 2010

                                                                           MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                           U.S. COURT OF APPEALS



       We measure Dominique Arotzarena’s liability by what he provided the

magistrate who issued the arrest warrant for Harvey. See United States v. Gourde,

440 F.3d 1065, 1067 (9th Cir. ) (en banc).

       The foundation of the identification of suspects was a surveillance camera in

the San Pablo Liquor Market. Arotzarena omitted the fact that the compact disc

recording from the surveillance camera was not functioning at the time of the CI’s

interview. The recording, however, had been posted on the internet by a news

broadcaster. Arotzarena did not note that the CI viewed the lower-quality internet

version of the recording; that the film was blurry; or that the color resolution was

low.

       Arotzarena’s affidavit declares: “On November 25, 2005, I met with a

confidential informant. This CI had independent knowledge of this group.” The

immediate referent of “this group” is given in the preceding paragraph of the

affidavit as the group of men who had entered the San Pablo Market. The affidavit

provides no information as to how the CI had independent knowledge of “this

group.”

       Arotzarena’s affidavit goes on: “Through the video he [the CI] was able to

                                          1
identify five people. He positively identified a person known to him as ‘Jamal

Bey,’ ‘Asad Bey’ and ‘Yusuf Bey.’ He was also able to identify a light skin male

black, maybe half Asian. He also identified an elderly male black.”

      The CI was then shown DMV photos and he matched them to the persons he

had named in the video. And Asad Bey was said to be Demetrius Harvey.

Nothing more appears in the affidavit as to Harvey.

      The affidavit told the magistrate that a confidential informant had

“positively” identified Harvey as a participant in the crime. The credentials of the

CI were not given. No reason was provided as to how the CI should have

particular information about “this group,” i.e., those men who had invaded the San

Pablo Market. No information was provided to the magistrate as to the quality of

the film, the CI”s first misidentification of Harvey, and the limited profile of

“Harvey” captured on the film. The magistrate, instead, was informed by

Arotzarena’s affidavit that the identification of Harvey was as positive as that made

by the CI of four other men. A reasonable factfinder would be justified in finding

that these facts constitute a reckless disregard for the truth. See Butler v. Elle, 281

F.3d 1014, 1026 (9th Cir. 2002).

      Whether Arotzarena’s misrepresentations were material to the determination

of probable cause is a question for the court. Arotzarena’s statement that the CI

                                           2
had “independent knowledge of this group” was a material misrepresentation.

Nothing in the affidavit, nothing in Arotzarena’s “Case Notes” shows that the CI

had knowledge of “this group.” Although it is not mentioned in the affidavit, it

was known to the police that the CI worked at Your Black Muslim Bakery and

must therefore have known some men of the sixty who worked there. That

knowledge did not translate into knowledge of the group of invaders of the liquor

store.

         Arotzarena’s affidavit contained a second material misrepresentation: that

the CI had “positively” identified each of the suspects, as though the same

identification were made of each. Three of the men faced the camera. Their faces

could be positively identified. “Harvey” was turned from the camera. The

identification was half a guess. This guess followed the CI’s first mistaken

identification of a person with a very different appearance.

         The police knew that the invaders worked at Your Black Muslim Bakery. It

was tempting for Arotzarena to guess that the CI, who had worked there, knew the

men he identified, but the guess had no foundation. It was also important to the

police to net as many members of the mob as they could. Excepting these material

misrepresentations, probable cause was absent for the arrest of Harvey. See Crowe

v. County of San Diego, 593 F.3d 841, 870 (9th Cir. 2010).

                                           3
      It’s a jury question whether in these circumstances Arotzarena acted

reasonably or recklessly when he made the two misrepresentations to the

magistrate, who was led to authorize the arrest of an innocent man. See Butler, 281

F.3d at 1024.

      The damages Harvey might be awarded may not be great. Principle is what

is at stake. Often the Fourth Amendment is invoked in criminal cases as a shield

by those caught in criminal activity where overzealous law enforcement has

overstepped a constitutional boundary. Here, the Fourth Amendment is invoked by

innocence. The Constitution is the source of a vital right, whose vindication is no

small victory for democratic government.




                                         4
