                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 LONNIE CRAIG                                 No. 16-16001
 PATTERSON,
       Plaintiff-Appellant,                   D.C. No.
                                      2:12-cv-01350-MCE-CKD
                v.

 CITY OF YUBA CITY,                    ORDER CERTIFYING
       Defendant-Appellee.              QUESTION TO THE
                                      CALIFORNIA SUPREME
                                            COURT


                       Filed March 7, 2018

 Before: William A. Fletcher and Richard A. Paez, Circuit
       Judges, and Claudia Wilken,* District Judge.




    *
      The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
2                  PATTERSON V. CITY OF YUBA

                            SUMMARY**


                             Civil Rights

   The panel certified the following question to the
California Supreme Court:

         Does a finding of probable cause at a
         preliminary hearing preclude a false arrest
         claim?

    The panel withdrew the case from submission and stayed
further proceedings pending final action by the California
Supreme Court.


                               ORDER

    We certify the question set forth in Part II of this order to
the California Supreme Court. The answer to this question is
dispositive of the case, is not provided by clear California
precedent, and implicates the adjudication of California false
arrest claims against law enforcement officers. See Cal. R.
Ct. 8.548. Moreover, because the California Courts of
Appeal are split on how best to resolve the issue,
“considerations of comity and federalism suggest that the
highest court in California, rather than our court, should have
the opportunity to answer this question in the first instance.”
Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008).
We therefore respectfully request that the California Supreme

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               PATTERSON V. CITY OF YUBA                    3

Court exercise its discretion to decide the certified question
presented below. All further proceedings in this case are
stayed pending final action by the California Supreme Court,
and this case is withdrawn from submission until further
order of this court.

              I. Administrative Information

   We provide the following information in accordance with
California Rule of Court 8.548(b)(1).

   The caption of this case is:

                       No. 16-16001

             LONNIE CRAIG PATTERSON,

                  Plaintiff and Appellant,

                              v.

                  CITY OF YUBA CITY,

                  Defendant and Appellee.

   The names and addresses of counsel are:

    For Plaintiff-Appellant Lonnie Patterson: Phillip A.
Cooke, Law Offices of Phillip A. Cooke, 1215 Plumas St.,
Suite 1800, Yuba City, CA 95991; Curtis Brooks Cutter, John
Parker, Jr., Cutter Law PC, 401 Watt Avenue, Sacramento,
CA 95864.
4              PATTERSON V. CITY OF YUBA

   For Defendant-Appellee City of Yuba City: Bruce A.
Kilday, John A. Whitesides, Angelo, Kilday & Kilduff,
601 University Avenue, Suite 150, Sacramento, CA 95825.

    If the request for certification is granted, Plaintiff-
Appellant Lonnie Patterson should be deemed the petitioner
in the California Supreme Court.

                  II. Certified Question

    Pursuant to California Rule of Court 8.548(b)(2), we
certify the following question of state law before us:

   1. Does a finding of probable cause at a preliminary
hearing preclude a false arrest claim?

    Our phrasing of the question should not restrict the
California Supreme Court’s consideration of the issues
involved. Cal. R. Ct. 8.548(f)(5). We will accept and follow
the decision of the California Supreme Court. Cal. R. Ct.
8.548(b)(2).

                  III. Statement of Facts

                             A.

    Lonnie Patterson (“Patterson”) and his deceased fiancée,
Victoria Rogers-Vasselin (“Rogers-Vasselin”) were residents
of Yuba City in Sutter County, California. On May 20, 2010,
Yuba City police officers decided to investigate a report that
a woman at Rogers-Vasselin’s house had brandished a
firearm at someone earlier in the day. The officers arrived at
Rogers-Vasselin’s address late that night, just as Patterson
and Rogers-Vasselin were retiring for the evening. Shortly
               PATTERSON V. CITY OF YUBA                     5

thereafter, Patterson told Rogers-Vasselin that he thought he
heard someone knocking on their front door. She urged him
to check and take a gun for protection, since she was
concerned about recent reports of gang activity and robberies
in the neighborhood. Patterson, heeding his fiancée’s request,
retrieved a handgun from the house before opening the front
door.

    The parties dispute what happened next. In his
declaration, Patterson states that he did not point his gun at
Officer Catherine Alestra (“Alestra”), the officer who
knocked on the door; Yuba City officers testified at his
preliminary hearing that he did. Regardless, the officers
demanded that Patterson drop his gun and put his hands in the
air. Patterson immediately complied. At some point during
this exchange, Rogers-Vasselin had also made her way to the
front door, where she stood with a shotgun in hand and the
barrel pointing downwards. The officers shot and killed
Rogers-Vasselin after ordering her to drop her weapon. They
then arrested Patterson for assault.

    Local prosecutors charged Patterson with two felony
offenses: (1) assault upon a peace officer with a firearm under
California Penal Code § 245(d)(1); and (2) assault upon the
person of another with a firearm under California Penal Code
§ 245(a)(2). At the preliminary hearing, the prosecution
called two officers, Sergeant Stephan Thornton (“Thornton”)
and Officer William Wolfe (“Wolfe”), to testify. The
prosecution did not call Officer Alestra. Patterson did not
testify at the preliminary hearing, nor did he call any
witnesses. The magistrate limited the defense’s cross-
examination and did not permit questions pertaining to
whether the officers “intend[ed] to do something illegal.”
The magistrate reasoned that subjective intent was
6               PATTERSON V. CITY OF YUBA

“irrelevant” to the legality of the officers’ actions on the night
Patterson was arrested.

    Sergeant Thornton testified that he arrived at the
residence after the other six officers and was informed by
Officer Alestra some time later that a white male, later
identified as Patterson, had pointed his gun at her chest.
Sergeant Thornton arrived too late to witness Patterson’s
interaction with Officer Alestra. On cross-examination,
Sergeant Thornton admitted that based on the dispatcher’s
information, he was initially unaware that Officer Alestra was
dealing with a subject who had pointed a gun specifically at
Officer Alestra. Officer Wolfe, the arresting officer, testified
that he personally saw Patterson point his gun “approximately
less than a foot away from [Officer Alestra’s] throat and head
area” after he opened the front door.

    Based on the officers’ testimony, the magistrate found
that it was “clear from the evidence” that Patterson had
“point[ed] a firearm at [Officer Alestra].” The magistrate
separately added that it was less clear whether Patterson
“intended to commit an assault with a firearm on the person
who was on his porch, whoever it was,” although there was
some supporting evidence of intent. The magistrate
ultimately concluded, however, that there was “reasonable
and probable cause to believe that . . . Patterson committed a
violation of Section 242(a)(2) of the Penal Code” and
“certif[ied] the matter to trial court for arraignment.” The
magistrate also reduced the charge to a misdemeanor. The
magistrate declined to certify the charged violation of section
245(d)(1) for trial. Patterson was ultimately acquitted of all
charges by a jury in 2014 after his first trial resulted in a hung
jury.
                   PATTERSON V. CITY OF YUBA                              7

                                    B.

    Four days before the preliminary hearing, Patterson filed
the present suit in the United States District Court for the
Eastern District of California against Yuba City, among other
defendants. In response to the complaint, Yuba City asserted
several affirmative defenses, including probable cause to
arrest and res judicata.1 Of his six claims, Patterson later
stipulated to dismissing three. Yuba City moved for
summary judgment on Patterson’s remaining claims for
violation of his Fourth Amendment rights under 42 U.S.C.
§ 1983, intentional infliction of emotional distress, and false
arrest and imprisonment. Patterson filed an opposition to
Yuba City’s motion for summary judgment only with respect
to his false arrest claim. The district court granted Yuba
City’s motion for summary judgment. Citing McCutchen v.
City of Montclair, 73 Cal. App. 4th 1138 (1999), the district
court concluded that Patterson’s false arrest claim was barred
by collateral estoppel (issue preclusion) due to the probable
cause finding at the preliminary hearing. Because Patterson
was “collaterally estopp[ed] from denying the existence of
probable cause” and therefore could not negate Yuba City’s
affirmative defense, the district court did not analyze whether
Patterson had established a prima facie case of false arrest.

    Patterson timely appealed.


    1
       Under California law, probable cause to arrest is an affirmative
defense to a claim of false arrest. See Miller v. Glass, 282 P.2d 501, 503
(Cal. 1955) (explaining that lack of probable cause has “no bearing . . . on
charges of false arrest and imprisonment, except . . . where the offense is
apparently being committed in the presence of the arresting officer, he
may invoke by way of defense the doctrine of probable cause to justify the
arrest without a warrant” (emphasis added) (citations omitted)).
8               PATTERSON V. CITY OF YUBA

              IV. Explanation of Certification

    Patterson’s appeal turns on whether a preliminary hearing
determination of probable cause is entitled to preclusive
effect in a subsequent suit for false arrest and imprisonment
under California’s issue preclusion doctrine. If the California
Supreme Court accepts certification on this issue, the court’s
decision will “determine the outcome” of this appeal. Cal. R.
Ct. 8.548(a)(1). No controlling California precedent answers
this question. See Cal. R. Ct. 8.548(a)(2). Significantly, the
California Courts of Appeal have split on the issue, inhibiting
our ability to “predict how the [California Supreme Court]
would decide,” as we are bound to do. McKown v. Simon
Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012).
Accordingly, we believe that the California Supreme Court is
best suited to address what preclusive effect, if any, a
preliminary hearing determination of probable cause may
have on a subsequent claim for false arrest and imprisonment.

                               A.

    In California, “issue preclusion applies: (1) after final
adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against
one who was a party in the first suit or one in privity with that
party.” DKN Holdings LLC v. Faerber, 352 P.3d 378, 387
(Cal. 2015). The California Courts of Appeal disagree as to
whether a preliminary hearing determination of probable
cause satisfies these requirements with respect to a
subsequent civil suit for false arrest.

    In McCutchen, the Fourth District of the California Courts
of Appeal concluded that “a prior judicial determination at a
preliminary hearing that there was sufficient evidence to hold
                PATTERSON V. CITY OF YUBA                     9

the plaintiff over for trial may, in some situations, preclude
the plaintiff from relitigating the issue of probable cause to
arrest in a subsequent suit.” 73 Cal. App. 4th at 1147. The
court reasoned that “[t]he quantum of evidence required to
support a warrantless arrest is the same as the quantum of
evidence required to hold the defendant to stand trial.” Id. at
1146. Therefore, “absent a showing that evidence not
available to the arresting officer was presented at the
preliminary hearing, a finding of sufficiency of the evidence
to require the defendant to stand trial is a finding of probable
cause to arrest the defendant.” Id.

    We recognize that McCutchen relied, at least in part, on
our decision in Haupt v. Dillard, which held that “the issue
determined at [the plaintiff’s] preliminary hearing is identical
to the issue whether there was probable cause to arrest him.”
17 F.3d 285, 289 (9th Cir. 1994). Haupt, however, turned on
our application of Nevada—not California—law. Id. at
288–89.

    More importantly, McCutchen’s reasoning was called into
question eight years later by the Sixth District of the
California Courts of Appeal in Schmidlin v. City of Palo Alto,
which questioned whether a preliminary hearing
determination of probable cause could satisfy two of the
requirements for issue preclusion. 157 Cal. App. 4th 728,
767 (2007). The Schmidlin court specifically rejected the
premise that a preliminary hearing “either raises the issue of,
or provides an adequate opportunity to litigate, the legality of
an arrest.” Id. Although Schmidlin ultimately dealt with the
preclusive effect of an order following a suppression hearing,
the Sixth District expressed strong reservations about
McCutchen’s analysis of preclusion with respect to a
preliminary hearing determination of probable cause. Id. at
10              PATTERSON V. CITY OF YUBA

767–68. Unlike the Fourth District, the Sixth District said
unequivocally that “[t]he issue of ‘probable cause’ to arrest
. . . is simply not the same as—let alone identical to—that of
sufficient cause to hold the defendant for trial.” Id. at 767.
And even if the issue were the same, the Sixth District
reasoned that “the magistrate’s limited factfinding powers do
not permit the defendant to ‘actually litigate’ the issue so as
to give the magistrate’s ruling preclusive effect in a later civil
suit.” Id. at 768.

    Patterson argues that Schmidlin’s approach should
govern, because “a preliminary hearing is not a procedure in
which [the legality of an arrest] can be conclusively
resolved.” Yuba City contends that “[t]he opposing view
stated in Schmidlin is dicta,” and therefore cannot support
reversal so long as McCutchen remains good law.

    In the absence of controlling precedent on this question,
we are left at an impasse. See, e.g., Wige v. City of Los
Angeles, 713 F.3d 1183, 1185 n.1 (9th Cir. 2013) (avoiding
the need to “resolve any conflict between McCutchen and
Schmidlin,” because Wige was entitled to relief under either
approach). Moreover, although the Second District of the
California Courts of Appeal has opted to follow McCutchen
post-Schmidlin, other districts have yet to weigh in. Greene
v. Bank of America, 236 Cal. App. 4th 922, 933–35 (2015).
Accordingly, neither the Fourth nor the Sixth District’s
approach can be said to have received substantial
endorsement by their sister courts.

                               B.

   This disagreement between the districts of the California
Courts of Appeal underscores the importance of the question
                PATTERSON V. CITY OF YUBA                    11

presented to the state and highlights the public policy
implications at stake. The applicability of issue preclusion in
Patterson’s case and others like it impacts both California
plaintiffs, who seek redress for alleged official misconduct,
and California state and local law enforcement officers, who
are tasked with enforcing state law, including the effectuation
of arrests. Resolving the question presented will likely
require diligent and thoughtful parsing of California’s issue
preclusion requirements, a magistrate’s powers and
obligations at a preliminary hearing, and a criminal
defendant’s ability to adequately contest the issue of probable
cause at a preliminary hearing as a matter of California
practice. As to this last point, we note that it may often be
contrary to a criminal defendant’s interest to fully challenge
the prosecution’s evidence of probable cause by testifying at
the preliminary hearing. See 2 California Criminal Defense
Practice § 41.12[8] (Matthew Bender ed., 2017) (“The
defendant may take the stand at the preliminary examination
as a witness in his or her own defense although it is a rare,
and usually risky, procedure.”); Continuing Educ. of the Bar,
California Criminal Law Procedure and Practice § 8.13
(2016) (“It is unusual, however, for a defendant to testify or
to put on a defense [at a preliminary hearing], because it
would provide the prosecution with discovery . . . .”); see also
Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin
S. Kerr, 4 Criminal Procedure, § 14.1(d) (4th ed.) (“For
reasons discussed in § 14.4(d), the defense rarely will have its
own witnesses testify at the preliminary hearing.”).

    After careful consideration, and in light of the division
amongst the California Courts of Appeal and the importance
of the question presented, we believe certification to the
California Supreme Court is the most appropriate course of
12              PATTERSON V. CITY OF YUBA

action. This is not a decision we make lightly. See Couch v.
Telescope Inc., 611 F.3d 629, 634 (9th Cir. 2010).

               V. Accompanying Materials

    The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of record, and an original and ten
copies of this order and request for certification, along with
a certification of service on the parties, pursuant to California
Rules of Court 8.548(c) and (d).

    This case is withdrawn from submission. Further
proceedings in this case before our court are stayed pending
final action by the California Supreme Court. The Clerk is
directed to administratively close this docket, pending further
order. The parties shall notify this court within fourteen days
of the California Supreme Court’s acceptance or rejection of
certification, and again, if certification is accepted, within
fourteen days of the California Supreme Court’s issuance of
a decision.

     IT IS SO ORDERED.
