Beck v. City of Upland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KENNETH BECK, 
Plaintiff-Appellant,
v.
CITY OF UPLAND; CITY OF UPLAND
POLICE DEPARTMENT; MARTIN
THOUVENELL, City of Upland No. 05-56901
Police Chief; JEFF MENDENHALL,
Upland Police Officer; MICHAEL  D.C. No.
CV-05-00184-ABC
OLLIS,
Defendants-Appellees, OPINION
and
INTRAVAIA ROCK AND SAND
CORPORATION; RON WILLEMSEN; LEE
JACKSON,
Defendants.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding

Argued and Submitted
August 10, 2007—Pasadena, California

Filed May 28, 2008

Before: Marsha S. Berzon and Sandra S. Ikuta,
Circuit Judges, and James K. Singleton,* District Judge.

*The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.

6035
6036 BECK v. CITY OF UPLAND
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Ikuta
6040 BECK v. CITY OF UPLAND

COUNSEL

Thomas R. Freeman (argued), Bird, Marella, Boxer, Wolpert,
Nessim, Drooks, & Lincenberg, P.C., Los Angeles, Califor-
nia, and Stephan J. Johnson, Reiss & Johnson, Rancho Cuca-
monga, California, for the plaintiff-appellant.

Samuel J. Wells (argued), Samuel J. Wells, APC, Los Ange-
les, California, and William K. Hanagami, King & Hanagami,
ALC, Los Angeles, California, for the defendants-appellees.

OPINION

BERZON, Circuit Judge:

Kenneth Beck and the City of Upland, California, engaged
for months in an escalating series of disputes arising from
Beck’s protests against a city contract granted to one of his
competitors. In the incident that gave rise to this case, Beck
was arrested six days after he confronted two city police offi-
cers over what he felt to be unfair treatment by the city.
Beck’s arrest was pursuant to a warrant for two felony viola-
tions of a California statute prohibiting threats of violence
made to deter police officers from performing their duties.
The warrant, we conclude — as did the state courts consider-
ing the criminal charges — was entirely without probable
cause. All charges against Beck were dismissed.

Beck maintains that his “First and Fourth Amendment
rights . . . were violated when he was arrested and imprisoned
[without probable cause] for his protected speech and then
forced to incur the cost of defending himself against the crim-
 BECK v. CITY OF UPLAND 6041
inal charges.” The question we consider is whether Beck’s
subsequent suit under 42 U.S.C. § 1983 for these constitu-
tional violations and for various state law causes of action
against the City of Upland, its police department, and the offi-
cers who engineered his arrest, Police Chief Martin Thouve-
nell and Sergeant Jeff Mendenhall, may go forward to trial.
The district court held that it may not, because (1) a San Ber-
nardino County prosecutor authorized the filing of a criminal
complaint before the police officers obtained an arrest war-
rant, thereby acting as an intervening cause of Beck’s injuries
and cutting off post-complaint liability under § 1983; and (2)
California state law immunized the officers. See Smiddy v.
Varney, 665 F.2d 261, 266-68 (“Smiddy I”) (9th Cir. 1981)
(discussing the post-complaint liability of the arresting offi-
cers in such circumstances); CAL. CIV. CODE § 43.55(a) (state
law immunity).

After the district court decision, the United States Supreme
Court decided Hartman v. Moore, 547 U.S. 250 (2006), clari-
fying the elements of a constitutional tort under § 1983 for
retaliatory arrest or prosecution. We hold, relying in part on
Hartman, that causation issues arising from the criminal com-
plaint do not preclude Beck’s case, and that California immu-
nity law does not either. We therefore reverse the district
court’s grant of summary judgment against Beck.

I. Background

A. The Rubble Removal Contract and the Zoning
Investigation

Early in 2003, Beck heard about a business opportunity
from city officials: Upland was planning construction work in
town, and there would be a significant amount of rubble to
remove and recycle.1 Beck thought his business, Dineen
1
Because we are reviewing a grant of summary judgment against Beck,
we relate the facts in the light most favorable to him, the nonmoving party.
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). The
defendants dispute many of these facts in opposing declarations and depo-
sitions.
6042 BECK v. CITY OF UPLAND
Trucking, was a good fit for the job: It had been operating in
town since 1958 and often did rubble removal and recycling
work. Beck believed the rubble had significant resale value
and would have been willing to remove it for free in exchange
for the right to resell it. So Beck was surprised when, on Sep-
tember 8, 2003, the City Council awarded a $350,000 no-bid
contract, without public notice or comment, to an out-of-town
competitor, Intravaia Rock & Sand. Because the city normally
put all projects over $5,000 out to bid, Beck suspected that
there were irregularities in the contracting process.

Acting on his belief, Beck called the mayor of Upland the
next day and told him that he planned to raise his concerns
about the contract at the next city council meeting, on Sep-
tember 22, 2003. On the 22nd, Ron Willemsen, president of
Intravaia, visited Beck and confronted him about the contract.
Soon after Willemsen’s visit, the mayor called Beck and
asked him not to speak publicly about the contract. That night,
instead of speaking at the city council meeting, Beck met with
Willemsen, Chief Thouvenell, and the city public works
director and was advised to work out a deal with Willemsen
to share the contract. As it turned out, the two were not able
to agree, and no deal was reached.

Instead, Beck took his grievances to the city manager,
Michael Milhiser, this time successfully. In early October, the
city backed out of the Intravaia contract. At about the same
time, Willemsen again came to Beck’s office and promised to
have “every agency down on top of [him]” because of his
efforts to block Willemsen’s contract.

On November 24, 2003, a zoning complaint letter arrived
at Upland city hall, sent by a law firm that represented
Intravaia. The letter suggested that rubble piles on Beck’s
land, which he maintained as part of his business and which
included rubble resulting from an earlier city project, were out
of compliance with zoning changes that had occurred in 2000.
The rubble piles had been there since at least the early 1990s,
 BECK v. CITY OF UPLAND 6043
but Beck had not previously been informed of any zoning
problems. Police officer Michael Ollis was assigned to inves-
tigate the complaint.

The decision to investigate was unusual. At the city council
meeting at which the 2000 zoning changes were adopted,
business owners had raised concerns over enforcement
against existing nonconforming businesses in Beck’s part of
the city and were assured that their existing uses of their prop-
erties were not threatened. Upland’s senior planner had indi-
cated that she was “not aware of one single incidence [sic]
where the City ha[d] enforced” against a nonconforming use
existing at the time a new zoning ordinance was passed; such
uses had “all been allowed to continue, as long as they contin-
ue.” Also, the city’s Director of Community Planning con-
firmed at that meeting that the city’s policy was to enforce
zoning ordinances only against new property uses.

Ollis and Sergeant Mendenhall, along with the city engi-
neer, arrived at Dineen Trucking to serve Beck with a notice
of zoning violations signed by Chief Thouvenell on January
27, 2004. Beck had not previously known of the investigation,
and the ensuing discussion was heated. Beck believed the
investigation to be retaliatory, and summarily ended the meet-
ing by ordering the three city officials to leave his property.

B. The Confrontation

The next week, Beck and his wife Brenda Beck went to a
party celebrating the opening of a local bank. As they were
leaving the event, Beck saw Chief Thouvenell and Sergeant
Mendenhall standing by the buffet. Beck “decided it was the
right time to go over there” and talk to Thouvenell about the
way the city was treating him.

After saying hello, Beck bluntly told Thouvenell to get
“Ollis off my ass.” In the course of the brief ensuing discus-
sion, Thouvenell at one point retorted, “Ken, we should have
6044 BECK v. CITY OF UPLAND
taken care of you a long time ago,” to which Beck responded
“You don’t know who you’re dealing with.”2 The conversa-
tion ended there, and both the Becks and the officers left the
function.

Both Chief Thouvenell and Sergeant Mendenhall later
declared that they believed Beck was threatening their “posi-
tion or employment” as police officers. Neither ever indicated
any belief that Beck had threatened them with violence.

The day after the incident at the bank opening, the Upland
Chamber of Commerce held a meeting triggered in part by the
zoning investigation of Beck’s business. Chief Thouvenell,
Sergeant Mendenhall, and the city manager, Milhiser,
attended the meeting. They were quite exercised over Beck’s
statements of the night before. Milhiser, for example, main-
tained that Beck had “been way out of line and very offen-
sive,” and said that Thouvenell had “exercised a lot of
restraint in not . . . hooking up [Beck] that night.” And Thou-
venell told the Chamber to “back off from this whole [Beck]
issue, leave it alone, stay out of their way,” and warned the
Chamber members that he would “make contact with the
attorney general’s office” if they persisted in their “interfer-
ence.”

C. The Police Report and the Complaint

Even before the Chamber meeting, Sergeant Mendenhall
and Chief Thouvenell were preparing to take action against
Beck. Immediately after the confrontation at the bank, Men-
2
The police recalled the comment differently, asserting that Beck used
profanity, saying “You better back the fuck off me because you don’t
know who you’re fucking with.” The police also assert that Beck, after
making the comment to Chief Thouvenell, repeated it to Sergeant Men-
denhall. Beck’s use of obscenity is not material to our legal analysis; even
if it were, we would have to assume on summary judgment that he did not
swear and that he spoke only to Chief Thouvenell. See Blankenhorn, 485
F.3d at 470.
 BECK v. CITY OF UPLAND 6045
denhall told Thouvenell that he believed Beck had violated a
criminal law against threatening police officers. Thouvenell
told him to look into the matter.

Mendenhall did so and prepared a police report on the inci-
dent. Thouvenell then indicated that Mendenhall should pre-
sent the report to the District Attorney’s office, which he did
on February 9, 2004. The report describes Mendenhall’s
impressions of the conversation with Beck at the bank open-
ing party and contains statements from other witnesses. The
report does not contain Thouvenell’s statement to Beck.

Sergeant Mendenhall also submitted a form to the District
Attorney providing basic information on Beck and the wit-
nesses. At the top of the form, under “crime/incident,” Men-
denhall wrote “PC 69 Threatening an Officer.” California
Penal Code § 69 criminalizes, in pertinent part, “attempts, by
means of any threat or violence, to deter or prevent an execu-
tive officer from performing any duty imposed upon such
officer by law.” The offense may be charged either as a felony
or as a misdemeanor. Mendenhall circled “Felony” rather than
“Misdemeanor” on the form.

Deputy District Attorney Joseph Gaetano reviewed the
police report. He conducted no additional investigation, fac-
tual or legal, and later stated he “suppose[s]” he generated a
criminal complaint on his computer. The program he uses to
do so allows him simply to click a box to format the com-
plaint and to select the charge; all other case-specific informa-
tion is typed in by a clerk. He had the complaint, charging
Beck with two counts of felony violation of § 69, ready for
Mendenhall to sign that day.

In a deposition concerning his decision, Gaetano testified
that Mendenhall did not tell him to prosecute Beck’s alleged
crime as a felony and did not tell him to prosecute Beck as a
favor to the police department. Gaetano asserted work-
product privilege, however, when asked whether his decision
6046 BECK v. CITY OF UPLAND
to charge Beck with a felony had been “swayed” by the fact
that “felony” was circled on the police report, and again when
asked if he felt “any pressure . . . to file charges against Mr.
Beck.”

A superior court judge issued a warrant for Beck’s arrest
shortly thereafter, after receiving the complaint and a declara-
tion by Sergeant Mendenhall in support of the warrant. The
judge received no document signed by Gaetano before he
issued the warrant.

D. The Arrest and Subsequent Judicial Proceedings

Two days after the warrant issued, three officers, each in
his or her own vehicle, pulled up in front of Dineen Trucking.
Beck was at his desk. Wearing bulletproof vests and with
weapons unharnessed, the officers entered Beck’s office,
arrested him, and handcuffed him. The officers took the hand-
cuffed Beck outside and waited with him at the front of his
business. Sergeant Mendenhall had arrived but remained off
the property, watching the arrest from his car. After half an
hour, another police car arrived to take Beck to the police sta-
tion and then to jail. Beck spent five hours in jail before he
posted bail, which was set at $15,000.

At Beck’s preliminary hearing the judge described himself
as “troubled by this case on many levels, not the least of
which is that it’s been filed as a felony.” Regarding the stan-
dard of proof in a preliminary hearing as minimal, the judge
allowed the case to go forward but urged the defense to “chal-
lenge the Court’s ruling via 995.” California Penal Code
§ 995 allows a court to set aside an indictment or information
for, among other things, lack of probable cause.

Beck’s lawyer did file a § 995 motion, and a second judge
set aside the charges. Citing People v. Superior Court of San
Francisco (Anderson), 151 Cal. App. 3d 893 (Ct. App.1984),
which requires a threat of violence to support a “threat” viola-
 BECK v. CITY OF UPLAND 6047
tion of § 69, the judge held that “obviously, [Beck’s] state-
ment does not contain any element of violence that I can
find,” and that there was “no indication of any immediate
threat of physical violence whatsoever.” He dismissed the
criminal case against Beck. A few months later, Upland vol-
untarily dismissed the zoning charges against Beck as well.3

E. The Litigation

Beck then brought this case. In addition to the federal
§ 1983 cause of action, Beck alleged eight causes of action
under state law. The § 1983 allegations here at issue were that
Beck was “falsely arrested, unlawfully detained, and falsely
imprisoned” in violation of his Fourth Amendment rights and
that the “arrest was perpetrated . . . in retaliation for [Beck’s]
exercise of his First Amendment rights against Defendant,
Martin Thouvenell, as well as [for] ‘whistle blowing’ ” on the
Intravaia contract.4 Of Beck’s state law causes of action, the
second (negligence), third (assault and battery), fourth (false
imprisonment), and fifth (intentional infliction of emotional
distress) are the subject of this appeal. Beck sought damages
for the costs he incurred in defending himself, and also sought
punitive and compensatory damages, attorneys’ fees, and
costs.

The officers claimed qualified immunity, arguing that, on
all the federal constitutional causes of action, Smiddy I immu-
nized them from liability for harm suffered after the com-
plaint was filed, and also asserted state law statutory
immunity. On November 14, 2005, the district court granted
summary judgment against Beck on his § 1983 causes of
3
Upland did, however, send Beck another notice of zoning violations in
December, 2004. As of October 27, 2005, no action had been taken on this
new notice.
4
Beck’s complaint alleges violations of other rights, but on appeal he
pursues only the Fourth and First Amendment violations arising from his
arrest, so we consider only those issues.
6048 BECK v. CITY OF UPLAND
action, holding that, under Smiddy I, Gaetano’s decision to
prepare the complaint was an independent and intervening
cause that immunized the Upland defendants “from liability
for any damages suffered by [Beck] as a result of his subse-
quent arrest and detention.” The court further held that, even
if Beck could overcome Smiddy I, his statements at the party
provided probable cause to support the warrant. Finally, the
court held Beck’s state law causes of action precluded by Cal-
ifornia statutory immunity.5

This timely appeal followed.

II. Analysis

A. Standard of Review and Analytic Framework

We review a grant of summary judgment de novo, making
all justifiable factual inferences in favor of the nonmoving
party. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th
Cir. 2007). “If a rational trier of fact might resolve the issue
in favor of the nonmoving party, summary judgment must be
denied.” Id. (alteration omitted).

Our analysis of the qualified immunity defense in a suit
under § 1983 follows the familiar two-step framework of Sau-
cier v. Katz, 533 U.S. 194 (2001), asking first whether the
officers’ conduct violated a federal right and, second, whether
the right was clearly established at the time. See Blankenhorn,
485 F.3d at 470-71; see also Malley v. Briggs, 475 U.S. 335,
337, 344-46 (1986) (applying the qualified immunity standard
in a false arrest case); Duran v. City of Douglas, Ariz., 904
F.2d 1372, 1376-78 (9th Cir. 1990) (applying the standard in
a First Amendment retaliatory arrest case).6 In this instance,
5
The court granted summary judgment in favor of Ollis because he was
not involved in the events surrounding the complaint and arrest. Beck does
not appeal that decision.
6
The officers argue that we may not consider Malley or other cases not
discussed in the district court. They are wrong. “[A]ppellate review of
 BECK v. CITY OF UPLAND 6049
however, the officers, relying on Smiddy I, maintain that they
cannot be held liable for violating Beck’s First or Fourth
Amendment rights by arresting him, because an independent
prosecutor authorized prosecution before the officers sought
and obtained an arrest warrant.7

We disagree. We hold that, on the summary judgment
record, Beck has shown, with regard to either of the asserted
constitutional violations, that the prosecutor’s actions were
not an intervening cause shielding the officers from liability,
albeit for different reasons; that the officers lack qualified
immunity; and that the officers may not avail themselves of
the California statutory immunity they assert.

B. The Presumption of Prosecutorial Independence and
the Causation Problem

[1] A prosecutor’s independent judgment may break the
chain of causation between the unconstitutional actions of
other officials and the harm suffered by a constitutional tort
plaintiff. See Hartman, 547 U.S. 250, 262-63 (2006) (discuss-
ing the issue in the First Amendment context); Smiddy I, 665
F.2d at 266-68 (discussing the issue in the Fourth Amendment
context). Put in traditional tort terms, the prosecutor’s inde-

qualified immunity dispositions is to be conducted in light of all relevant
precedents, not simply those cited to, or discovered by, the district court.”
Elder v. Holloway, 510 U.S. 510, 512 (1994).
7
Beck was arrested and imprisoned after the criminal complaint was
filed. His “false arrest” cause of action might thus be better styled as one
for malicious prosecution. See Blaxland v. Commonwealth Dir. of Pub.
Prosecutions, 323 F.3d 1198, 1204-06 (9th Cir. 2003) (distinguishing
between the two torts at common law). The Smiddy I presumption has,
however, been applied in both false arrest and malicious prosecution
cases. See, e.g., Borunda v. Richmond, 885 F.2d 1384, 1386-87, 1390 (9th
Cir. 1988) (false arrest); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067
(9th Cir. 2004) (malicious prosecution); see also id. at 1069 (referring to
Fourth Amendment malicious prosecution suits). As the distinction makes
no analytic difference here, we use Beck’s terms.
6050 BECK v. CITY OF UPLAND
pendent decision can be a superseding or intervening cause of
a constitutional tort plaintiff’s injury, precluding suit against
the officials who made an arrest or procured a prosecution.
See RESTATEMENT (SECOND) OF TORTS §§ 440 et seq. (discuss-
ing causation problems in tort cases).

The method we have prescribed for addressing this causa-
tion question in Fourth Amendment-based suits differs some-
what from the method the Supreme Court recently set out in
the context of First Amendment retaliatory prosecution suits.8
We first discuss both methods in some detail before explain-
ing how they apply to Beck’s appeal.

We first consider our Fourth Amendment causation law, in
which we have used a rebuttable-presumption-based
approach. In Smiddy I, a § 1983 false arrest case, we adopted
an evidentiary presumption, see Galbraith v. County of Santa
Clara, 307 F.3d 1119, 1126 (9th Cir. 2002), “that the prosecu-
tor filing [a criminal] complaint exercised independent judg-
ment in determining that probable cause for an accused’s
arrest exist[ed],” thereby breaking the “chain of causation
between an arrest and prosecution” and immunizing “investi-
gating officers . . . from damages suffered” after the com-
plaint was filed. Smiddy I, 665 F.2d at 266-67; see also
Smiddy v. Varney, 803 F.2d 1469, 1472 (“Smiddy II”) (9th
Cir. 1986) (discussing the presumption). The Smiddy I pre-
sumption may be rebutted if the plaintiff shows that the
independence of the prosecutor’s judgment has been compro-
mised. Smiddy I, 665 F.2d at 266-67.
8
Prior to Hartman, we sometimes applied Smiddy I in the First Amend-
ment retaliatory prosecution context. See Nadell v. Las Vegas Metro.
Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001). Such application is no
longer proper, as the Supreme Court set out a clearly conflicting approach
to resolving First Amendment causation issues in Hartman. See Miller v.
Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). For this reason,
we refer to Smiddy I as concerning Fourth Amendment causation.
 BECK v. CITY OF UPLAND 6051
Smiddy I provided examples of circumstances in which the
presumption of independent judgment will be considered
rebutted, emphasizing that “[t]hese examples are not intended
to be exclusive.” Id. at 267. The enunciated circumstances,
elaborated upon in later cases, include situations in which the
prosecutor was pressured by police or was given false infor-
mation, id. at 266-67; the police “act[ed] maliciously or with
reckless disregard for the rights of an arrested person,” id. at
267; the prosecutor “relied on the police investigation and
arrest when he filed the complaint instead of making an inde-
pendent judgment on the existence of probable cause for the
arrest,” id.9; or the officers “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). Once “the plaintiff has
introduced evidence to rebut the presumption, the burden
remains on the defendant to prove that an independent inter-
vening cause cuts off his tort liability.” Smiddy I, 665 F.2d at
267. Critically for this case, “[i]f for reasons of privilege or
otherwise the relevant evidence [to challenge the presump-
tion] is not available, no presumption will arise,” id. at 267-
68, and the defendant has the burden to show that the prosecu-
tor’s judgment was independent.10

Having described our approach in Fourth Amendment
arrest cases where a prosecutor’s actions have intervened, we
turn to the Supreme Court’s recent resolution of the similar
causation issues arising from prosecutorial actions in First
Amendment retaliatory prosecution cases. The Court set out
its approach in Hartman, published, as we have noted, after
9
We have since held that a plaintiff must present information in addition
to his own account that contradicts the police report to avail himself of this
showing. See Newman v. County of Orange, 457 F.3d 991, 994-95 (9th
Cir. 2006).
10
As we discuss below, even when privilege has been invoked, the
plaintiff in such cases always has the initial burden of showing that proba-
ble cause for the arrest or prosecution was absent.
6052 BECK v. CITY OF UPLAND
the district court decision in this case. See 547 U.S. at 262-66
(discussing the causation problem).11 Hartman addressed an
allegedly retaliatory prosecution in which the plaintiff con-
tended that postal inspectors retaliated against his constitu-
tionally protected speech by procuring his prosecution. Id. at
252-255. The plaintiff sought to hold the inspectors liable for
the prosecution. Id. The Court noted that the prosecutor’s
presence in the causal chain meant that “the requisite causa-
tion between the defendant[ ] [official’s] retaliatory animus
and the plaintiff’s injury is usually more complex than it is in
other retaliation cases,” id. at 261, because “[e]vidence of an
[official’s] animus does not necessarily show that the [offi-
cial] induced the action of a prosecutor who would not have
pressed charges otherwise.” Id. at 263. This difficulty, cou-
pled with the “longstanding presumption of regularity
accorded to prosecutorial decisionmaking,” id., and the fact
that “it would be unrealistic to expect a prosecutor to reveal
his mind,” id. at 264, gave the Court considerable pause in
determining the circumstances in which a plaintiff alleging a
speech-retaliatory prosecution can “bridge the gap [created by
the independent judgment of the prosecutor] between the non-
prosecuting government agent’s motive and the prosecutor’s
action.” Id.; see also id. at 263 (citing Smiddy I as an example
of the causation problem).

[2] Considering the dilemma created in a First Amendment
retaliatory prosecution case by the prosecutor’s intervening
decision to prosecute, the Court developed a bright-line,
objective standard as a substitute for inquiries into the prose-
cutor’s subjective state of mind. Noting that “there will
always be a distinct body of highly valuable circumstantial
evidence available and apt to prove or disprove retaliatory
causation, namely evidence showing whether there was or
was not probable cause to bring the criminal charge,” id. at
11
Hartman was brought under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), the “federal analogue” to § 1983. Hartman,
547 U.S. at 254, 255 n.2.
 BECK v. CITY OF UPLAND 6053
261, the Court held that “a retaliatory motive on the part of
an official urging prosecution combined with an absence of
probable cause supporting the prosecutor’s decision to go for-
ward are reasonable grounds to suspend the presumption of
regularity behind the charging decision,” id. at 265. So, under
Hartman, if a plaintiff can prove that the officials secured his
arrest or prosecution without probable cause and were moti-
vated by retaliation against the plaintiff’s protected speech,
the plaintiff’s First Amendment suit can go forward.12

[3] We see no reason to limit Hartman’s probable cause
requirement solely to First Amendment retaliatory arrest and
prosecution cases. Rather, its logic extends to Fourth Amend-
ment false arrest cases like Beck’s, at least to the extent that
the plaintiff must prove the absence of probable cause to rebut
the presumption of independent prosecutorial judgment, when
a prosecutor’s actions are interposed between the actions of
investigating officials and the arrest. Ordinarily, however, the
plaintiff bears the burden of proving the absence of probable
cause anyway in a Fourth Amendment false arrest case. Prov-
ing lack of probable cause is usually essential to demonstrat-
ing that the plaintiff’s Fourth Amendment rights were
violated. As a practical matter, consequently, Hartman will
rarely add to the plaintiff’s ultimate burden in a § 1983 false
arrest case.

C. Hartman and Smiddy I

More difficult is the question whether Hartman requires
that we overrule Smiddy I entirely. Smiddy I requires that
plaintiffs bear a burden of proof, beyond proving the absence
of probable cause, to overcome the presumption of prosecu-
12
We note that plaintiffs stating “ ‘ordinary’ retaliation claim[s]” posing
less complicated causation problems than that addressed in Hartman,
including actions concerning retaliatory searches, need not allege and
show the absence of probable cause. See Skoog v. County of Clackamas,
469 F.3d 1221, 1234 (9th Cir. 2006).
6054 BECK v. CITY OF UPLAND
torial independence. There is considerable tension between
the approach taken by the Court in Hartman and the approach
set out in Smiddy I and the cases following from it. After
Hartman, it is questionable that Smiddy I’s detailed evidenti-
ary inquiry into the independence of the prosecutor’s judg-
ment should still be employed to address the causal chain
problem in Fourth Amendment cases. The Supreme Court’s
simpler, probable-cause-based approach may be all that is
required with regard to the causation issue in the First
Amendment context.

The causal problem is, of course, essentially identical in
both contexts, and Smiddy I requires an inquiry into the prose-
cutor’s actual mental processes to resolve it, an approach
decisively rejected in Hartman. Hartman does require retalia-
tory animus, as well as the absence of probable cause, as ele-
ments of the constitutional tort there at issue. But the
retaliatory animus requirement arises out of the First
Amendment-based constitutional tort alleged in Hartman.
Proof of the absence of probable cause, it appears, is the sole
factor necessary to resolve the chain of causation problem.
Applying that reasoning, it could be held that that sole factor
would also be sufficient in the Fourth Amendment false arrest
context, where the absence of probable cause is the substan-
tive lynchpin of the constitutional tort and must be proven in
any event.13

[4] But Hartman did not involve a Fourth Amendment-
based cause of action. Nor did Hartman explain how its rea-
soning should be applied in such cases. We are mindful that,
as a three-judge panel, our ability to overrule circuit precedent
13
In other Fourth Amendment contexts, no more than proof of an
absence of probable cause is required. See Malley, 475 U.S. at 344 n.7
(indicating, where the arresting officers obtain a warrant without probable
cause, that the independent judgment of the warrant-issuing magistrate
does not give rise to a causation issue in a Fourth Amendment case against
the officers).
 BECK v. CITY OF UPLAND 6055
is limited. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th
Cir. 2003) (en banc). Although the reasoning we have out-
lined above has a great deal to recommend it, whether Hart-
man is “clearly irreconcilable” with Smiddy I is unclear, see
id. at 900; Hartman addressed itself only to the “details spe-
cific to retaliatory-prosecution cases,” 547 U.S. at 259. As it
turns out, Beck can satisfy both Hartman and Smiddy I on the
present record. We therefore need not decide whether Hart-
man overruled Smiddy I, and do not do so.

D. Causation in First and Fourth Amendment Cases
After Hartman

[5] To summarize: We hold, first, that to the degree Smiddy
I could be understood under our case law to apply to a First
Amendment-based retaliatory arrest or prosecution cause of
action, Smiddy I is inconsistent with Hartman and cannot
stand. In such cases, we will not separately inquire, through
application of a presumption or otherwise, into the prosecu-
tor’s actual state of mind. Instead, a showing of a “retaliatory
motive on the part of an official urging prosecution combined
with an absence of probable cause supporting the prosecutor’s
decision” will suffice to rebut the presumption of regularity
and settle the causation issue. Hartman, 547 U.S. at 265.

[6] Second, in any constitutional tort case, including Fourth
Amendment-based cases, in which a prosecutor has instigated
a prosecution, it is necessary, if not sufficient, that a plaintiff
seeking to sue non-prosecutorial officials alleged to be
responsible post-complaint for the arrest or prosecution show
the absence of probable cause. If that were not so, Smiddy I
would be irreconcilable with Hartman. See Miller, 335 F.3d
at 900.14
14
It is likely that that burden rested with the plaintiff under Smiddy I
even before Hartman, but we make clear that it does today.
6056 BECK v. CITY OF UPLAND
Third, we do not overrule Smiddy I’s rebuttable presump-
tion approach in the Fourth Amendment context, leaving the
question whether it should be overruled for a case in which
the answer matters. Instead, we demonstrate that Beck sur-
vives summary judgment even if Smiddy I does apply.

To implement our approach, we address Beck’s First and
Fourth Amendment causes of action separately. But, as the
causes of action share the common requirement that Beck
show that probable cause for his arrest was absent, we first
address that issue and hold that probable cause was, indeed,
lacking.

We next hold that Beck has satisfied Hartman, preserving
his First Amendment cause of action, because he has alleged
and shown retaliatory animus under two distinct theories, both
of which are viable on the present summary judgment record.
See Blankenhorn, 485 F.3d at 470. Turning to the Fourth
Amendment cause of action, we observe that the prosecutor,
Gaetano, asserted privilege rather than testifying as to
whether he felt pressure from the police to make his charging
decision and whether he was influenced by the police offi-
cers’ felony submission. Critical evidence necessary to rebut
the Smiddy I presumption of independence is therefore
unavailable, and, under the express language of Smiddy I
itself, Beck is not required to rebut the presumption of pro-
secutorial independence. In the absence of the presumption, a
rational jury could well conclude that the officers had not met
their burden to show “an independent intervening cause cuts
off [their] tort liability.” Smiddy I, 665 F.2d at 267. Beck’s
Fourth Amendment cause of action therefore also survives.

E. Beck’s Constitutional Causes of Action

1. Absence of Probable Cause

We have little difficulty concluding that there was no prob-
able cause to arrest Beck. As we have noted, Beck was
 BECK v. CITY OF UPLAND 6057
arrested for threatening the officers, in violation of California
Penal Code § 69. That provision may be violated by attempt-
ing to deter executive officers from their duties by “threat or
violence.” CAL. PENAL CODE § 69 (emphasis added); see also
In re M.L.B., 110 Cal. App. 3d 501 (Ct. App. 1980).

To assure that the statute does not violate the First Amend-
ment by sanctioning constitutionally protected challenges to
police officers’ activities, see City of Houston, Tex. v. Hill,
482 U.S. 451, 462-63 (1987), California courts adopted a nar-
rowing construction. Under that construction, adopted as early
as 1984, the statute’s “threat” provision is applicable only to
“threat[s] of unlawful violence used in an attempt to deter an
officer.” In re Manuel G., 16 Cal. 4th 805, 814-15 (1997); see
also Anderson, 151 Cal. App. 3d 893, 895-96, 898 (Ct. App.
1984) (same).

As a result of this limiting construction, the threats that
have been held to violate § 69 have been unmistakably threats
of violence, including “ ‘Me and my home boys are going to
start killing you and your friends,’ ” In re Manuel G, 16 Cal.
4th at 819; “ ‘I’m tired of you guys fucking with us, and you
better watch out, we’re going to start knocking you guys
off,’ ” id.; “ ‘We’ll get your house. We’ll get your cars. You
can’t be with your family twenty-four hours a day,’ ” In re
M.L.B., 110 Cal. App. 3d at 504; and “ ‘I am going to kill
you. This is a threat. You’re dead.’ ” People v. Hines, 15 Cal.
4th 997, 1058 (1997).

Beck’s statements bear scant resemblance to those that
have been held to violate § 69. In the context of a heated dis-
cussion over zoning violations at a civic function, Beck told
Chief Thouvenell that he “didn’t know who [he] was dealing
with.” At worst, if we suppose that the more profanity-laced
version of Beck’s comments that the officers recall is accu-
rate, Beck may also have sworn and told the officers to back
off. Regardless of the version of his statements we consider,
Beck could not have been understood in context to threaten
6058 BECK v. CITY OF UPLAND
violence. In fact, both officers so declared, maintaining only
that they thought he was threatening their job security.

We conclude, as did the state court deciding Beck’s § 995
motion, that there was no probable cause to arrest Beck for a
violation of § 69, much less for a felony violation of that stat-
ute. He has therefore made the probable cause showing neces-
sary to support both his First and Fourth Amendment causes
of action. We next turn to the other requisite of the First
Amendment cause of action, retaliatory motive.

2. The First Amendment Cause of Action: Retaliation

a. Scope of Appellate Review

We recognize that the district court did not have the oppor-
tunity to consider Hartman and, given the way it conducted
the Smiddy I analysis, did not directly address the retaliation
question. Although it will often be “the better approach” to
remand in such cases for the district court to “apply the appro-
priate standards,” see In re Exxon Valdez, 270 F.3d 1215,
1241 (9th Cir. 2001), “[t]he matter of what questions may be
taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be exer-
cised on the facts of individual cases.” Singelton v. Wulff, 428
U.S. 106, 121 (1976).

We are comfortable resolving the Hartman retaliation issue
on the facts of this case, where the new legal standard arose
during the briefing of this appeal, the standard was brought to
our attention by one of the parties, and, critically, the retalia-
tion issue was extensively litigated in the district court, albeit
under a somewhat different legal framework. See also Kimes
v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (courts may take
up an issue for the first time on appeal “when a change in law
raises a new issue while an appeal is pending”) (quotation in
original omitted); Golden Gate Hotel Ass’n v. San Francisco,
18 F.3d 1482, 1487 (9th Cir. 1994) (“Certainly there are cir-
 BECK v. CITY OF UPLAND 6059
cumstances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the proper
resolution is beyond any doubt.”) (quoting Singleton, 428
U.S. at 121).

The reason the retaliation issue was litigated in the district
court, including on the defendants’ Smiddy I-based motion for
summary judgment, is this: Under Smiddy I, proof that offi-
cials have “deliberately or recklessly misled” a prosecutor is
sufficient to show that the prosecutor has not exercised inde-
pendent judgment. See Galen v. County of Los Angeles, 477
F.3d 652, 663-64 (9th Cir. 2007). As part of Beck’s theory of
deliberate falsehood, he argued that the officers were moti-
vated by retaliatory animus to create a false case against him.
The parties therefore litigated that question, which had first
been raised in Beck’s complaint.15 Because the retaliation
issue has therefore been present in the case from the start, all
parties have had ample opportunity to investigate it and to
bring forward evidence and legal arguments regarding it.

Nor does the applicability of Hartman come as a surprise.
Although Hartman was published after Beck’s opening brief
was due, it issued before the officers filed their answering
brief. So, in addition to having addressed the retaliation issue
throughout the litigation, the officers had a chance to address
the Hartman framework — as Beck did in his reply brief —
although they failed to do so.

Further, because we are reviewing a summary judgment
record, we resolve factual disputes in favor of the non-moving
party and decide legal issues de novo. It therefore does not
matter whether the officers might have paid more attention to
rebutting retaliation had they addressed Hartman. We would
still view the facts in the light most favorable to Beck.16 In
15
The district court understood Beck to have alleged that he was “ar-
rest[ed] . . . in retaliation for exposing the allegedly illegal contract
between the City and Intravaia.”
16
Of course, the officers will have an opportunity to contest Beck’s fac-
tual version of the case at trial.
6060 BECK v. CITY OF UPLAND
sum, the officers suffer no prejudice, see Kimes, 84 F.3d at
1126, if we consider here the same retaliation issue which the
parties have already litigated in the context of the Smiddy I
framework.

For these reasons, and because it has already been four
years since Beck’s arrest and three years since this case was
filed, considerations of judicial efficiency lead us to resolve
the matter today. Justice would not be served by subjecting
the parties to further pre-trial disputes over immunity when
the matter can be clearly settled on the present summary judg-
ment record.

b. Retaliation

Beck alleges that his arrest was retaliatory in two regards:
First, he maintains that the officers arrested him in retaliation
for his brusque comments to Chief Thouvenell at the bank
opening party. Second, he contends that the officers’s actions
were the culmination of the extended dispute between Beck
and Upland that began with his protests against the rubble
removal contract and were in retaliation for that protest. On
the summary judgment record, a rational jury could find for
Beck on either theory, see Blankenhorn, 485 F.3d at 470, sat-
isfying Hartman.

[7] As to the first theory: Beck presented evidence showing
that he had a heated confrontation with Chief Thouvenell and
Sergeant Mendenhall at the bank opening party. He could
show that, in the heat of the moment, Thouvenell had told him
that “we should have taken care of you a long time ago.” He
also presented evidence from the Chamber of Commerce
meeting, indicating that Thouvenell, Mendenhall, and Mil-
hiser had been agitated over Beck’s comments and that Thou-
venell, in particular, had threatened that he would take legal
action against Chamber members who interfered with

[8] Beck also could show that the police, the alleged vic-
tims of his crime, did not investigate the matter beyond mak-
 BECK v. CITY OF UPLAND 6061
ing a few phone calls before going to the District Attorney to
file charges and secure an arrest warrant. Further, the police
report left out Thouvenell’s hostile comment to Beck and
reported the crime as a potential felony, rather than as a mis-
demeanor, suggesting that it was written to cast Beck in the
worst possible light.

[9] As viewed most favorably to Beck, the facts in this
regard resemble those in Duran, in which a police officer
stopped and arrested a man who first “exchanged a few heated
words” with him and who then made obscene gestures at him
just before the arrest. 904 F.2d at 1374-75. In that case, we
first held that probable cause for the stop was absent and then
warned that it appeared that the officer stopped the plaintiff
“at least partly in retaliation for the insult he received” from
him. Id. at 1377 78. Beck’s showing of a heated personal con-
frontation followed by a hasty arrest likewise could rationally
support a finding of retaliatory animus.

[10] Even if it did not adopt the above theory based on per-
sonal retaliatory animus, a rational jury could find that the
arrest was the culmination of Beck’s long-running dispute
with Upland over his efforts to block the rubble removal con-
tract. Beck presented a substantial case that his protests cre-
ated the tensions that led to his arrest. First, Beck could show
that Chief Thouvenell himself had advised him to work out a
deal with his competitor to share the contract. Second, he
could demonstrate that his competitor had suggested investi-
gating him for zoning violations after threatening that “every
agency” in Upland would be “down on top of [Beck].” Beck
could present evidence that such investigations of existing
nonconforming businesses were against city policy, and that,
at the time of the relevant zoning changes, Upland’s senior
planner was “not aware of one single” enforcement action
against an existing nonconforming use in Upland’s history.
Further, he could demonstrate that Chief Thouvenell and Ser-
geant Mendenhall were involved in the code enforcement
action, and that Beck and Mendenhall had had a dispute when
6062 BECK v. CITY OF UPLAND
Mendenhall arrived to discuss the zoning problems with him.
In addition to these showings, he could add the incidents we
have already described, including, in particular, Chief Thou-
venell’s statements at the Chamber of Commerce meeting. In
short, even if the jury did not believe that the police would
retaliate against Beck solely because of the confrontation at
the bank opening party, Beck could make out a case that the
confrontation was the culmination of a longer conflict rooted
in his First-Amendment-protected contract protest, and that
the arrest was in retaliation for Beck’s overall role in that con-
flict.

Viewed in that light, the facts in this case closely parallel
those in Hartman. The plaintiff in Hartman, Moore, made
equipment used by the postal service and successfully lobbied
against a policy that would have favored his competitors.
Hartman, 547 U.S. at 252-54. After he succeeded, Postal Ser-
vice inspectors began to investigate him for various crimes;
he was prosecuted but was cleared of all charges. Id. at 254.
Record evidence showed that the inspectors had pressured the
U.S. Attorney to prosecute, had thin evidence to support their
criminal allegations, and had been angered by Moore’s activi-
ties. See Moore v. Hartman, 388 F.3d 871, 882-85 (D.C. Cir.
2004).17 Similarly, Beck lobbied against government action
that would have favored his competitors and found himself
under investigation. While Beck might or might not ulti-
mately succeed in convincing a jury that his advocacy efforts
prompted the zoning investigation that escalated into the
arrest, a rational jury looking at the present record in the light
most favorable to Beck could so infer.

[11] Thus, under either view of retaliatory animus, Beck
has met the retaliation prong of Hartman. As we have dis-
cussed, he has also shown that probable cause was absent. He
17
Because the Supreme Court considered only the probable cause ques-
tion, Hartman, 547 U.S. at 256-57, it left the D.C. Circuit’s retaliation
findings undisturbed.
 BECK v. CITY OF UPLAND 6063
has therefore completed the Hartman showing, and his First
Amendment cause of action survives.

3. The Fourth Amendment Cause of Action:
Invocation of Privilege

The absence of probable cause also supports Beck’s Fourth
Amendment cause of action. The Smiddy I framework, how-
ever, requires more. For the reasons we have explained, we
address that framework here.

[12] We need not, however, consider, as did the district
court, whether the evidence Beck presented was sufficient to
meet the plaintiff’s Smiddy I burden of rebutting the presump-
tion of prosecutorial independence. Smiddy I held that where
invocations of privilege render “relevant evidence” concern-
ing the prosecutor’s decision to prosecute unavailable, no pre-
sumption of prosecutorial independence arises, and the
plaintiff need not rebut it. 665 F.2d at 267-68.18 Here, the
prosecutor, Gaetano, invoked privilege to shield relevant evi-
dence.

The basis for this privilege-based limitation on the plain-
tiff’s Smiddy I burden is the same concern that led the
Supreme Court in Hartman to abjure a subjective inquiry into
the prosecutor’s state of mind — namely, that ascertaining
that state of mind is likely to be exceedingly difficult. See
Hartman, 547 U.S. at 264. Where the prosecutor claims privi-
lege regarding key factual inquiries essential to rebutting the
Smiddy I presumption, it is unfair to the plaintiff to apply the
presumption, and, pursuant to Smiddy I’s caveat, we may not
do so.

Gaetano did answer some questions with regard to his
charging decision: He explained the nature of the process and
18
After Hartman, of course, the plaintiff always carries the initial bur-
den of showing the absence of probable cause.
6064 BECK v. CITY OF UPLAND
said that he had not actually been ordered by Chief Thouve-
nell or Sergeant Mendenhall to prosecute Beck. But Gaetano
twice asserted privilege when asked if he had been “swayed”
or “pressure[d]” by the police in his charging decision.

[13] The answers to the questions Gaetano refused to
answer are obviously central to the presumption of indepen-
dent judgment that underlies Smiddy I’s causal analysis.
Among the bases for overcoming the Smiddy I presumption is
“a showing that the district attorney was pressured or caused
by the investigating officers to act contrary to his independent
judgment.” Smiddy I, 665 F.2d at 266. With Gaetano’s
answers to questions directed precisely at that consideration
off the table, Beck cannot be required to come forward with
evidence to rebut the presumption of Gaetano’s independent
judgment. Instead, the burden of showing that Gaetano acted
independently falls on the officers.

A rational jury could find that the officers had not met their
burden to show that Gaetano’s judgment was sufficiently
independent as to amount to an intervening cause shielding
them from liability. See id. at 267. The officers were the pur-
ported victims of the crime. Their own descriptions of the
incident were at the core of the brief police report. Gaetano
testified that he conducted no additional legal or factual inves-
tigation of his own. Even when privilege is not asserted, we
have expressed concern about the application of the Smiddy
I presumption where “[t]he prosecutor’s only information
came from the police reports.” Barlow v. Ground, 943 F.2d
1132, 1137 (9th Cir. 1991); see also Blankenhorn, 485 F.3d
at 484; Newman v. County of Orange, 457 F.3d 991, 995 (9th
Cir. 2006); Borunda v. Richmond, 885 F.2d 1384,1390 (9th
Cir. 1988). Here, in addition to the presence of police as vic-
tims and Gaetano’s failure to do any additional investigation,
Gaetano’s decision to charge Beck’s comments as a felony, as
the police report suggested, and the omission of Thouvenell’s
comments to Beck in the police report all call the indepen-
dence of Gaetano’s judgment into serious question.
 BECK v. CITY OF UPLAND 6065
[14] In short, Beck has demonstrated that there was no
probable cause for his arrest, and the officers have not met
their burden to show that Gaetano’s judgment acted as an
intervening cause. We therefore hold that, on the present
record, Beck’s Fourth Amendment cause of action may go
forward.

F. Qualified Immunity

Beck has met his burden to establish causation on both his
First and Fourth Amendment causes of action. The remaining
issue on the § 1983 causes of action is whether Chief Thouve-
nell and Sergeant Mendenhall are entitled to qualified immuni-
ty.19 We address that question now.

We have already explained that, on this summary judgment
record, Beck was arrested in retaliation for his speech and that
the arrest was without probable cause. Those explanations sat-
isfy the first step of the qualified immunity inquiry with
regard to the First and Fourth Amendment issues, and we will
not repeat them here. See Saucier, 533 U.S. at 201 (discussing
step one of the qualified immunity inquiry) All that remains
is to determine whether the pertinent law was clearly estab-
lished at the time of the incidents in this case. See id. (discuss-
ing step two). It was.

[15] Regarding the First Amendment cause of action:
Arresting someone in retaliation for their exercise of free
speech rights was violative of law clearly established at the
time of Beck’s arrest. By 1990, it was “well established . . .
that government officials in general, and police officers in
particular, may not exercise their authority for personal
19
The officers do not argue that the intervening actions of the judge
issuing the warrant are of relevance, nor could they do so. As we have
noted, supra n.13, the Supreme Court has held that the ordinary qualified
immunity standard applies in such cases, without an additional causation
step. See Malley, 475 U.S. at 344-45 & 344 n.7, 346 n.9.
6066 BECK v. CITY OF UPLAND
motives, particularly in response to real or perceived slights
to their dignity. Surely anyone who takes an oath of office
knows — or should know — that much.” Duran, 904 F.2d at
1378; see also id. (“[W]hile police, no less than anyone else,
may resent having obscene words and gestures directed at
them, they may not exercise the awesome power at their dis-
posal to punish individuals for conduct that is not merely law-
ful, but protected by the First Amendment.”); United States v.
Poocha, 259 F.3d 1077, 1080 (9th Cir. 2001) (“The Supreme
Court has consistently held that the First Amendment protects
verbal criticism, challenges, and profanity directed at police
officers unless the speech is likely to ‘produce a clear and
present danger of a serious substantive evil.’ ”) (quoting Hill,
482 U.S. at 461); Guilford v. Pierce County, 136 F.3d 1345,
1349 (9th Cir. 1998) (same); MacKinney v. Nielsen, 69 F.3d
1002, 1007 (9th Cir. 1995) (citing Duran for the proposition
that there is a clearly established “First Amendment right to
challenge the police. Even when crass and inarticulate, verbal
challenges to the police are protected.”).

[16] Regarding the Fourth Amendment cause of action: As
we have discussed, the California courts limited § 69 “threat”
violations to threats of violence as early as 1984. The Califor-
nia Supreme Court ratified that interpretation in 1997, seven
years before Beck’s arrest in 2004. See In re Manuel G., 16
Cal. 4th at 814-15. We are aware of no conflicting California
cases. The arrest was therefore in violation of clearly estab-
lished law at the time it occurred, as it was without probable
cause under then-existing California law.

[17] In short, well before 2004, “a reasonable official [in
Sergeant Mendenhall’s position] would understand” that
arresting an individual in retaliation for protected speech is
constitutionally impermissible. See Saucier, 533 U.S. at 202.
Such an officer would also have known that the warrant appli-
cation and criminal complaint were objectively unsupported
by probable cause. Sergeant Mendenhall therefore may not
 BECK v. CITY OF UPLAND 6067
claim qualified immunity from liability resulting from the
criminal complaint or the warrant application he filed.

[18] Chief Thouvenell’s position is slightly different: He
did not sign or prepare the police report, the criminal com-
plaint, or the declaration submitted to secure the warrant. We
have held, however, that a supervising official may be liable
in his individual capacity if he “set in motion a series of acts
by others, or knowingly refused to terminate a series of acts
by others, which he knew or reasonably should have known,
would cause others to inflict the constitutional injury.” Larez
v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)
(internal alterations omitted). Thouvenell was one of Beck’s
purported victims. He approved Mendenhall’s investigation of
the incident and told him to present it to the prosecutor. It
should have been clear to Thouvenell from the start that there
was no probable cause to arrest Beck. Yet, he failed to do
anything to stop the process that led to the arrest, but instead
abetted it and threatened Chamber of Commerce members
when they attempted to get involved. He, too, may not claim
qualified immunity here.

There is no remaining barrier to Beck’s § 1983 causes of
action. We therefore reverse the district court’s grant of sum-
mary judgment against Beck on the issue.20

G. The State Law Causes of Action

[19] The district court also granted summary judgment
against Beck on his state law causes of action, relying upon
California Civil Code § 43.55(a), which provides in pertinent
part that:
20
The district court did not reach the question whether the City of
Upland or the Upland Police Department is liable under Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978), if Chief Thouvenell and Sergeant
Mendenhall are liable, and Beck does not raise it on this appeal. We there-
fore do not decide the issue.
6068 BECK v. CITY OF UPLAND
There shall be no liability on the part of, and no
cause of action shall arise against, any peace officer
who makes an arrest pursuant to a warrant of arrest
regular upon its face if the peace officer acts without
malice and in the reasonable belief that the person
arrested is the one referred to in the warrant.

The district court held that Beck had not presented sufficient
evidence to create a material issue as to whether the officers
acted maliciously, so the statutory immunity applies. We dis-
agree.21

Under California law, “[m]alice may be determined by tak-
ing into account all circumstances surrounding the arrest
allegedly known to the arresting officer.” McKay v. County of
San Diego, 111 Cal. App. 3d 251, 254 (Ct. App. 1980). Mal-
ice “may be proved by circumstantial evidence, and is defined
as that attitude or state of mind which actuates the doing of
an act for some improper or wrongful motive or purpose. It
does not necessarily require that the defendant be angry or
vindictive or bear any actual hostility or ill will toward the
plaintiff.” Laible v. Superior Court of the City and County of
San Francisco, 157 Cal. App. 3d 44, 53 (Ct. App. 1984) (quo-
tation marks omitted). Moreover, liability for an unlawful
arrest extends beyond the arresting officer if immunity is not
present: “A party who authorizes, encourages, directs or
assists an officer to do an unlawful act, or procures an unlaw-
ful arrest, without process, or participates in the unlawful
arrest or imprisonment is liable.” Harden v. San Francisco
Bay Area Rapid Transit District, 215 Cal. App. 3d 7, 15 (Ct.
App. 1989) (internal alterations and quotation marks omitted).

[20] Applying these concepts, both Sergeant Mendenhall
and Chief Thouvenell may be held liable for false arrest under
California law if they acted maliciously. The evidence of
21
The officers do not argue that they benefit from any other source of
state law immunity, so we address only § 43.55(a).
 BECK v. CITY OF UPLAND 6069
retaliatory intent we have already surveyed is sufficient to
allow a rational jury to find that both the officers “acted for
some improper or wrongful motive or purpose.” Laible, 157
Cal. App. 3d at 53; see also id. at 54 (“It is for the trier of fact
. . . to weigh the available inferences against [the officers’]
profession of pure motives.”). They are thus not immune
under § 43.55(a).

III. Conclusion

Beck’s case may go forward. We remand for trial.

REVERSED AND REMANDED.

IKUTA, Circuit Judge, concurring in part, dissenting in part:

In my view, the district court’s grant of summary judgment
must be reversed for two reasons. First, the district court
granted the defendants’ motion for summary judgment and
dismissed Beck’s § 1983 cause of action based in part on its
determination that the police officers had probable cause to
arrest Beck. This determination was erroneous: the police
officers lacked probable cause to arrest Beck as a matter of
law. See In re Manuel G., 16 Cal. 4th 805, 814-15 (1997).

Second, the district court determined that the officers were
immune from liability under Smiddy v. Varney, 665 F.2d 261
(9th Cir. 1981), due to the prosecutor’s intervening action of
filing a criminal charge against Beck. The Supreme Court’s
recent opinion in Hartman v. Moore, 547 U.S. 250 (2006),
casts doubt on the district court’s conclusion, at least with
respect to Beck’s allegation that the police officers arrested
him in retaliation for his exercise of First Amendment rights.
Beck had attempted to rebut the Smiddy presumption (i.e., the
presumption that a prosecutor’s filing of criminal charges
constitutes an exercise of independent judgment that immu-
6070 BECK v. CITY OF UPLAND
nizes investigating officers) by showing that the police offi-
cers unduly pressured or deceived the prosecutor. See Smiddy,
665 F.2d at 266-68. However, Hartman indicates that the
prosecutor’s intervening action will not immunize the police
officers from a First Amendment retaliatory arrest claim if
Beck can establish that the police officers lacked probable
cause and had a retaliatory intent. 547 U.S. at 265. Because
the district court did not have the benefit of Hartman, and
thus did not apply the correct test to Beck’s First Amendment
claim, we must reverse the grant of summary judgment in
favor of the defendants. I agree with the majority to that
extent, and join in Sections I, II A (excluding the majority’s
holding), II B, paragraphs 1, 2 and 4 of Section II D, and Sec-
tion II E 1.

However, in my view, it is not appropriate to go further and
address issues neither briefed to nor decided by the district
court. Although a First Amendment claim was lurking in
Beck’s complaint, the parties did not discuss it and the district
court did not address it. By the same token, the parties did not
develop their arguments on this key question whether the
record raised a material issue of retaliatory intent on the part
of the police officers. It is inappropriate for us to reach this
mixed issue of law and fact for the first time on appeal in the
absence of development by the parties or a ruling by the dis-
trict court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(“It is the general rule . . . that a federal appellate court does
not consider an issue not passed upon below.”).

Nor should we reach the question whether the Smiddy pre-
sumption immunized the police officers from liability under
Beck’s Fourth Amendment false arrest claim. The district
court had concluded that the police officers were immunized
under Smiddy because Beck had failed to show that the police
officers unduly pressured or deceived the prosecutor. Rather
than address the district court’s ruling, the majority rests its
determination that the Smiddy presumption does not immu-
nize the police officers from Beck’s Fourth Amendment false
 BECK v. CITY OF UPLAND 6071
arrest claim on a new ground: the Smiddy presumption fails
because the prosecutor raised the attorney-client privilege and
refused to answer some of Beck’s questions. See maj. op. at
6063-65. But neither party raised this argument even on
appeal—it appears for the first time in the majority opinion.
In my view, it is inappropriate for the majority to decide a key
issue on an unbriefed rationale sua sponte, without giving the
defendants any opportunity to rebut the majority’s reasoning.
See Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207,
1214 (7th Cir. 1993) (Posner, J.) (“Our system unlike that of
the Continent is not geared to having judges take over the
function of lawyers, even when the result would be to rescue
clients from their lawyers’ mistakes.”).

“Our judicial system generally assumes that consideration
of an issue at both the trial court and appellate court level is
more likely to yield the correct result, because the issue will
be more fully aired and analyzed by the parties, because more
judges will consider it, and because trial judges often bring a
perspective to an issue different from that of appellate judg-
es.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d
1141, 1154 (9th Cir. 2000). In the interest of fairness to the
defendants and deference to the district court, I would reverse
the district court on the narrow grounds explained above, and
remand this case for further proceedings.