FOR PUBLICATION
UNITED STATES COURT OF APPEALS
THE NINTH CIRCUIT
HELENE SZAJER; ZOLTAN SZAJER,
Plaintiffs-Appellants,
v.
CITY OF LOS ANGELES; LOS
ANGELES POLICE DEPARTMENT; LOS No. 08-57010
ANGELES CHIEF OF POLICE WILLIAM
BRATTON; LOS ANGELES POLICE D.C. No.
2:07-CV-07433
DETECTIVE MICHAEL MERSEREAU;
OPINION
LOS ANGELES POLICE DETECTIVE R.
TOMPKINS; LOS ANGELES POLICE
DETECTIVE YADON; LOS ANGELES
POLICE DETECTIVE CONRADO,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
November 3, 2010—Pasadena, California
Filed February 11, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Zouhary
*The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2305
SZAJER v. LOS ANGELES 2307
COUNSEL
Burton C. Jacobson, Beverly Hills, California, for the
plaintiffs-appellants.
Carmen Trutanich, City Attorney, Blithe S. Bock, Deputy
City Attorney, for the defendants-appellees.
2308 SZAJER v. LOS ANGELES
OPINION
ZOUHARY, District Judge:
This is a civil rights action filed by Helene and Zoltan Sza-
jer (collectively, “Szajers”), owners and operators of the
“L.A. Guns” gun shop in West Hollywood, against the City
of Los Angeles (“City”), the Los Angeles Police Department
(“LAPD”), and a number of individual LAPD officers (collec-
tively “Appellees”). Following a “sting” operation wherein
the Szajers purchased illegal firearms from the LAPD, offi-
cers searched the Szajers’ gun shop and their personal resi-
dence, pursuant to a warrant obtained by LAPD Detective
Michael Mersereau. The searches resulted in the discovery of
illegal firearms and ammunition in both the gun shop and resi-
dence. The Szajers did not contest the validity of the warrant
or seek to suppress the evidence obtained during the searches.
As part of a plea agreement, the Szajers pled no contest to one
count of possession of an illegal assault weapon found in their
home.
The Szajers then filed this civil action, alleging that the
LAPD executed an illegal search at the gun shop. Defendants
filed a motion for summary judgment, which the district court
granted and the Szajers now appeal. For the reasons set forth
below, we affirm the district court’s decision granting sum-
mary judgment.
BACKGROUND
The Gun Sale
The circumstances of this action arise from activities on
November 17, 2005. On that date, Detective Mersereau used
a confidential informant to initiate the undercover sale of fire-
arms, including three illegal assault weapons, to the Szajers at
the gun shop. Detective Mersereau audibly monitored the
operation, as it took place, through a body wire worn by the
SZAJER v. LOS ANGELES 2309
informant. The assault weapons, which required a special per-
mit, included: (1) a Springfield M1A semiautomatic centerfire
rifle with flash suppressor; (2) a Whitney Wolverine semiau-
tomatic pistol that accepted a detachable magazine and a
threaded barrel; and (3) a Reising submachine gun. The
assault weapons were not registered to the informant.
After Zoltan Szajer inspected the weapons, he initially
offered the informant $1,800 for all three weapons. Shortly
thereafter he told the informant he could not purchase the sub-
machine gun because it may be an illegal weapon, and
advised the informant to take that gun to the West Hollywood
Sheriff’s Department. When the informant refused, Zoltan
Szajer offered to take the gun himself to the Sheriff’s Depart-
ment. The Szajers then purchased the other two weapons (the
M1A assault rifle without the flash suppressor, which Zoltan
Szajer had removed, and the Whitney Wolverine semiauto-
matic pistol) for $1,600, and the informant left the subma-
chine gun with Zoltan Szajer.
As soon as the informant left, Zoltan Szajer called the West
Hollywood Sheriff’s Department to request an officer pick up
the submachine gun. While Szajer was on the phone, Defen-
dant Mersereau and several other LAPD officers entered the
gun shop and, based on the Szajers’ purchase of two assault
rifles and possession of the Reising submachine gun, detained
the Szajers pending the application for a search warrant.
Detective Mersereau then drafted an affidavit for a magistrate
judge’s review.
The Arrest
In his affidavit, Detective Mersereau included three inci-
dents to establish probable cause. First, he explained that in
January 2005, he interviewed Charles Hanks concerning
assault weapons that Hanks may have owned. The Hanks
interview led to the discovery of an assault weapon last regis-
tered to the Szajers’ gun shop in 1995. Second, Detective
2310 SZAJER v. LOS ANGELES
Mersereau revealed that in January 2005, a confidential infor-
mant stated that in the late 1990s, Zoltan Szajer confided that
he possessed sixteen machine guns that he kept under the
floor boards of his residence. Third, Detective Mersereau
described the undercover operation that had taken place in
November 2005. A magistrate judge signed the search war-
rant authorizing the search of the gun shop, the Szajers’ resi-
dence and vacation home. Pursuant to the search warrant,
LAPD officers seized assault weapons and computers at the
residence and gun shop.
The Szajers were charged with thirteen criminal counts
relating to illegal possession of firearms, including an H & K
semiautomatic pistol found in the safe at the Szajers’ resi-
dence. The Szajers did not contest the validity of the warrant
or seek to suppress the evidence obtained during the searches.
In February 2007, the Szajers each pled no contest to a single
count — felony possession of the H & K pistol. Their convic-
tions have not been overturned, expunged or otherwise invali-
dated.
The Civil Action
Following their no contest plea, the Szajers filed this civil
suit, alleging that the City and LAPD officers violated the
Szajers’ civil rights by conducting illegal searches, and by
seizing their personal property. The Szajers also alleged that
the LAPD officers were pursuing a City policy “to put all gun
stores in the City of Los Angeles out of business by relying
on stale information, creating fictitious informants, falsifying
information included in search warrants, [and] illegally enter-
ing the premises of gun stores and planting evidence.”
Finally, the Szajers alleged that the City was liable for its fail-
ure to train and supervise its officers, which evidenced a pol-
icy of condoning “acts which would constitute illegal seizures
of lawfully possessed personal property.”
Defendants moved for summary judgment, which the dis-
trict court granted. In its order, the district court held that the
SZAJER v. LOS ANGELES 2311
Szajers’ claims were barred by Heck v. Humphrey, 512 U.S.
477 (1994), as a finding in favor of the Szajers would neces-
sarily imply that their convictions were invalid. The district
court further found that the Szajers’ claim that the City and
the LAPD had a policy or custom to violate the Second
Amendment was based on mere speculation, and that the Sza-
jers failed to present evidence sufficient to support their claim
against the City for its alleged failure to properly train and
supervise LAPD officers. Pursuant to Monell v. City of New
York Dep’t of Soc. Serv., 436 U.S. 658 (1978), the district
court found that the Szajers presented only their own experi-
ence with the LAPD as support for their claim and that “mu-
nicipal liability based upon failure to train cannot be derived
from a single incident.” The Szajers timely filed this appeal
on whether the district court properly concluded their claim
was barred by Heck. The Szajers do not challenge the district
court’s dismissal of their Monell claims.
DISCUSSION
Summary Judgment Standard of Review
This Court reviews the district court’s grant of summary
judgment de novo. Universal Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004). “[R]eview is governed
by the same standard used by the trial court under Federal
Civil Rule 56(c).” Adcock v. Chrysler Corp., 166 F.3d 1290,
1292 (9th Cir. 1999). This Court “must determine, viewing
the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law.” Universal Health Servs., 363 F.3d at 1019
(internal quotation marks omitted). When the underlying facts
are not in dispute, the court’s only function is to determine
whether the district court correctly applied the law. Id.
The Szajers argued below that the affidavit for the search
warrant omitted material information that misled the magis-
2312 SZAJER v. LOS ANGELES
trate, and had the magistrate been provided this information,
he would not have authorized the search. On appeal, the Sza-
jers challenge the decision of the district court, alleging: (1)
the district court disregarded an exception to the Heck doc-
trine; and (2) this lawsuit is not a direct challenge to the state
court convictions.
The Heck Doctrine
In Heck, the petitioner was convicted of voluntary man-
slaughter for killing his wife and was sentenced to a fifteen-
year prison term. 512 U.S. at 478. While his criminal appeal
was pending, the petitioner filed suit under 42 U.S.C. § 1983
against two prosecutors and an Indiana State Police investiga-
tor, alleging that they “had engaged in an ‘unlawful, unrea-
sonable, and arbitrary investigation’ leading to petitioner’s
arrest; ‘knowingly destroyed’ evidence ‘which was exculpa-
tory in nature and could have proved [petitioner’s] inno-
cence’; and caused ‘an illegal and unlawful voice
identification procedure’ to be used at petitioner’s trial.” Id.
at 478-9.
[1] The Court held that in order for an individual to
recover damages for “harm caused by actions whose unlaw-
fulness would render a conviction or sentence invalid,” the
conviction or sentence must be called into question in some
way — either through direct appeal, expungement, invalida-
tion by a state tribunal, or by a federal court’s issuance of a
writ of habeas corpus. Id. at 486-87. The Court further
explained:
[W]hen a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judg-
ment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sen-
tence has already been invalidated. But if the district
SZAJER v. LOS ANGELES 2313
court determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the
absence of some other bar to the suit.
Id. at 487. Thus, if finding in favor of a § 1983 plaintiff
“would necessarily imply the invalidity of his conviction or
sentence . . . the complaint must be dismissed.” Id.
[2] As support for reversal, the Szajers point to footnote
seven of the Heck opinion where the Court stated: “For exam-
ple, a suit for damages attributable to an allegedly unreason-
able search may lie even if the challenged search produced
evidence that was introduced in a state criminal trial resulting
in the § 1983 plaintiff’s still-outstanding conviction. Because
of doctrines like independent source and inevitable discovery,
and especially harmless error, such a § 1983 action, even if
successful, would not necessarily imply that the plaintiff’s
conviction was unlawful.” Id. at 487 n.7 (citations omitted).
Although footnote seven left open the question of the appli-
cability of Heck to Fourth Amendment claims, this Court has
since answered that question affirmatively. See, e.g., Whitaker
v. Garcetti, 486 F.3d 572, 583-84 (9th Cir. 2007); Harvey v.
Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000), overruled in
part on other grounds by Wallace v. Kato, 549 U.S. 384,
393-94 (2007).
[3] In Whitaker, this Court held that Heck barred plaintiffs,
who were convicted of cocaine possession, from bringing
§ 1983 claims alleging defendants falsified the warrant appli-
cation for wiretaps which ultimately produced the evidence
that triggered the investigations against them. Whitaker, 486
F.3d at 577, 584. This Court stated that the plaintiffs “chal-
lenge the search and seizure of the evidence upon which their
criminal charges and convictions were based. Heck and Har-
vey bar such a collateral attack through the vehicle of a civil
2314 SZAJER v. LOS ANGELES
suit.” Id. Accordingly, § 1983 claims premised on alleged
Fourth Amendment violations are not entirely exempt from
the Heck analysis, as the Szajers suggest.
Nonetheless, the Szajers urge this Court to follow two Sev-
enth Circuit cases: Copus v. City of Edgerton, 151 F.3d 646
(7th Cir. 1998) and Booker v. Ward, 94 F.3d 1052 (7th Cir.
1996). In those cases, the plaintiffs were allowed to pursue
§ 1983 claims based on Fourth Amendment violations
although their criminal convictions were not challenged. The
Seventh Circuit read footnote seven to mean that § 1983
claims based upon Fourth Amendment violations may pro-
ceed because Heck simply does not bar such claims. See
Copus, 151 F.3d at 648-49. These holdings, however, are in
direct conflict with Ninth Circuit precedent. See Whitaker,
486 F.3d at 583-84.
[4] We decline to take up the Szajers’ invitation to follow
the Seventh Circuit’s approach because this Court must fol-
low its own precedent. United States v. Vasquez-Ramos, 531
F.3d 987, 991 (9th Cir. 2008) (per curiam) (“We are bound by
circuit precedent unless there has been a substantial change in
relevant circumstances, or a subsequent en banc or Supreme
Court decision that is clearly irreconcilable with our prior
holding.” (internal citations omitted)).
[5] The Szajers further argue that Heck is inapplicable here
because they are challenging only the search of their gun
shop, not their conviction for possession of the unregistered
weapon found in their home. However, the searches of their
residence and gun shop were based on the same search war-
rant and supporting affidavit of Detective Mersereau.
The district court correctly found the magistrate must have
relied on the November 17 undercover operation in finding
probable cause because, for example, the residence informa-
tion was so stale that the district court found it “inconceiv-
able” that the magistrate would find probable cause on that
SZAJER v. LOS ANGELES 2315
piece of information alone. The information regarding the
illegal assault weapon last registered to the Szajers’ gun shop
in 1995, and the illegal firearms and ammunition stored at
their residence in the 1990s, was patently stale because it was
five to fifteen years old at the time of the warrant. See United
States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (“An affida-
vit must be based on facts so closely related to the time of the
issue of the warrant as to justify a finding of probable cause
at that time.”) (internal quotations omitted).
[6] The November 17 undercover operation was the only
basis for finding probable cause to search both the gun shop
and residence. Yet, the Szajers failed to challenge the search.
Just as in Whitaker, if the Szajers prevailed on their Section
1983 claim, it would necessarily imply the invalidity of their
state court convictions. Their civil claims necessarily chal-
lenge the validity of the undercover operation and in doing so
imply that there was no probable cause to search for weapons.
The conclusion that Heck bars such a challenge is buttressed
by the fact that the Szajers have not set forth, either on appeal
or to the district court below, any other basis for the discovery
of the assault weapon found in their home, which formed the
basis for their plea and conviction.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court granting summary judgment.