                                                                            FILED
                           NOT FOR PUBLICATION                               MAY 22 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVE CHRISTENSEN,                               No. 11-35034

              Plaintiff - Appellee,              DC No. CV 09-189 BLW

  v.                                             MEMORANDUM *

DOUG ARMSTRONG, Detective,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 13, 2012
                               Seattle, Washington

Before:       HUG, TASHIMA, and CALLAHAN, Circuit Judges.

       Detective Doug Armstrong of the Bannock County Sheriff’s Department

appeals the district court’s denial of his motion for summary judgment based on

qualified immunity. Plaintiff Steve Christensen brought a malicious prosecution

claim against Armstrong pursuant to 42 U.S.C. § 1983, after he was charged and



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
arrested for unlawful possession of firearms under an Idaho statute that did not

apply to him. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). We review the denial of summary judgment de

novo, Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en banc), and we

reverse and remand.

       Our decision in Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981),

established a rebuttable presumption that the decision to file a criminal complaint

results from the independent determination of the prosecutor, insulating the officer

that initiated the criminal prosecution from liability. This presumption of

prosecutorial independence may be rebutted with evidence that the officer

“improperly exerted pressure on the prosecutor, knowingly provided

misinformation to him, concealed exculpatory evidence, or otherwise engaged in

wrongful or bad faith conduct that was actively instrumental in causing the

initiation of legal proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067

(9th Cir. 2004). “Such evidence must be substantial.” Harper v. City of L.A., 533

F.3d 1010, 1027 (9th Cir. 2008).

      The district court relied on Christensen’s deposition testimony and affidavit

to hold that there were disputed issues of material fact precluding summary

judgment. Christensen’s deposition testimony and affidavit indicated that he told


                                          2
Armstrong that his civil rights had been restored, that he had been so advised by

his probation officer, and that he had possessed firearms in the past. Armstrong’s

report did not include these statements. Instead, it stated that Christensen told

Armstrong he was unsure whether his right to own firearms had been restored.

      Christensen’s account of his conversation with Armstrong is not sufficient

evidence to overcome the presumption of prosecutorial independence. See

Newman v. Cnty. of Orange, 457 F.3d 991, 994-96 (9th Cir. 2006). Armstrong

stated in his police report that Christensen’s felony conviction dated back to 1977,

and it is the date of that conviction that made the Idaho firearms possession statute

inapplicable to him; the prosecutor thus had the relevant exculpatory evidence

before him when he made the decision to charge Christensen.

      Because Christensen failed to rebut the presumption of prosecutorial

independence, we reverse the district court’s determination that Armstrong was not

entitled to qualified immunity and remand for further proceedings.




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