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NOT FOR PUBLICATION NOV 19 2010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