                                                                            FILED
                            NOT FOR PUBLICATION                                 DEC 10 2014

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



                            FOR THE NINTH CIRCUIT


GEORGE HERNANDEZ,                                 No. 12-55023

              Plaintiff - Appellant,              D.C. No. 2:10-cv-03703-JAK-
                                                  FFM
  v.

TYLER KENNEDY; FRANK WILLIS;                      MEMORANDUM*
CITY OF WEST COVINA,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                       Argued and Submitted October 9, 2013
                               Pasadena, California

Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.



       In his brief, Hernandez argued claims under Brady v. Maryland, 373 U.S. 83

(1963), search and seizure, intentional infliction of emotional distress, and

substantive due process, but as Hernandez conceded at oral argument, he was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
limited by precedent to his substantive due process argument. Though the police

officer, Tyler Kennedy, omitted material information suggesting weaknesses in the

case against Hernandez and the policeman’s improper motivation (his affair with

the alleged victim) when he argued for increased bail to keep Hernandez in jail, all

charges against Hernandez were dropped by the district attorney. There was, as

Hernandez concedes, probable cause for his arrest, his undisputed violation of a

restraining order. It does not vitiate the probable cause that his on and off

girlfriend encouraged the violation.



      The substantive due process argument is that the policeman relentlessly

pursued him and threw him in jail, despite knowing that he was probably innocent,

because the policeman wanted to have sex with Hernandez’s former girlfriend and

the mother of his three children. The policeman did indeed begin an affair with

Hernandez’s former girlfriend early in the investigation, and had indeed written

The Magic Triangle, a book on how to get women to consent to sex by agreeing

with whatever they say and telling whatever lies were necessary. And the

policeman had reason to suspect that the former girlfriend might be lying about

Hernandez forcibly raping her, because she had filed two false claims against

Hernandez before, she had repeatedly invited Hernandez to walk across the street


                                           2
and have sex with her, and Hernandez showed the policeman a videotape of the

two of them having consensual sexual intercourse on an earlier occasion. The

former girlfriend had left a message on Hernandez’s cell phone voice mail the very

day she alleged that he had raped her suggesting that she was miffed that he had

not responded to her request for sex.



      The defect in Hernandez’s “shock the conscience,” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998); United States v. Salerno, 481 U.S. 739, 746

(1987), substantive due process claim is that Hernandez’s evidence did not

establish that Officer Kennedy knew or should have known that he was innocent.

Though the policeman’s actions may have been motivated by a David-and-

Bathsheba intention to get Hernandez out of the way of the policeman’s sexual

relationship, the best Hernandez’s evidence established was that Kennedy should

have known that Hernandez had a strong probability of establishing a reasonable

doubt. Hernandez could have raped his former girlfriend on the occasion in

question despite their consensual sex on an earlier occasion, and despite her

rejected invitation to have sex that day. Kennedy did not (and did not have to, in

order to get him out of the way) fabricate evidence to frame a person whom he

knew or should have known to be innocent. His motivation did not wash away the


                                          3
evidence of the violation of the restraining order. See Whren v. United States, 517

U.S. 806, 811 (1996); Al-Kidd v. Ashcroft, 580 F.3d 949, 966 (9th Cir. 2009),

rev’d on other grounds, __ U.S. __, 131 S. Ct. 2074 (2011).



      Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014), cannot be extended to this

case. Tatum v. Moody states its rule as follows: “We emphasize the narrowness of

the constitutional rule we enforce today, which is restricted to detentions of (1)

unusual length, (2) caused by the investigating officers’ failure to disclose highly

significant exculpatory evidence to prosecutors, and (3) due to conduct that is

culpable in that the officers understood the risks to the plaintiff’s rights from

withholding the information or were completely indifferent to those risks.” Id. at

819–20. In Tatum, the innocent man was jailed for 27 months, here for one night.

See id. at 813. And in Tatum, the evidence not disclosed to the prosecutor was

much more clearly exculpatory. Had Kennedy disclosed to the prosecutor his

sexual relationship with Hernandez’s girlfriend and the mother of his children, the

prosecutor might have declined the case because of the potential embarrassment to

the police department or his office, but that embarrassment is not the same thing as

innocence of Hernandez on the charge of violating the restraining order. The

girlfriend’s entreaties to Hernandez to violate the restraining order do not prove his


                                           4
innocence of violating it, as opposed to proving her own poor character, as would

the evidence that she had lied before to get Hernandez in trouble. By contrast, the

two police officers in Tatum lied. Id. at 809. There, there was overwhelming

evidence of actual innocence, and here there is not. The police in Tatum put a man

in jail for robberies of stores with notes demanding money, a common enough

technique for bank robberies but an unusual modus operandi for retail store

robberies. The police represented that since the arrest, “the crime spree caused by

the ‘Demand Note Robber’ has ceased.” Id. That was a false statement. The

crime spree continued while the arrestee was in jail, even with the same

misspelling repeated in one of the demand notes. Id. at 813.



      Officer Kennedy’s motivation might arguably have been worse than what

motivated the police officer’s dishonesty in Tatum, but the one night detention did

not compare with the more than two years in Tatum, and the evidence Officer

Kennedy chose not to disclose, though it demonstrated the impeachability of both

himself and the purported victim, did not show that Hernandez was innocent.



      As for the claim that the City of West Covina should have fired Kennedy or

at least removed him as a sex crimes specialist because of his book, The Magic


                                          5
Triangle, on how to get sex by any means necessary, the book did not say Kennedy

was a police officer or suggest abuse of police power. Though the police chief had

looked at the book when it was brought to his attention by Commander Marc

Taylor, he established by thumbing through the book that it was Kennedy’s off

duty personal writing project, and said nothing to establish that Kennedy was a

police officer or would abuse his police authority. What the police chief had

before him amounted to an offensive book written by an officer off duty, that did

not cast a bad light on the police department or imply that the author would abuse

his police authority. Hernandez offered no evidence establishing municipal

“policies or customs,” Henry v. Cnty. of Shasta, 132 F.3d 512, 517 (9th Cir. 1997),

that would allow policemen to throw people in jail on weak charges in order to

have sex with their girlfriends.



      This case is troubling, but we are unable to conclude that Hernandez

established a genuine issue of material fact for a substantive due process claim.

See Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008) (affirming judgment on the

pleadings for police officer who struck vehicle during high speed chase of another

vehicle); Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (affirming summary




                                          6
judgment for investigators where improper interview techniques elicited false

statements about father sexual abusing children).



      AFFIRMED.




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