NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES WILKINSON, No. 18-55509
Plaintiff-Appellant, D.C. No.
8:16-cv-01976-AG-DFM
v.
MARK MAGRANN; THERESA PINES, MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted October 15, 2019
San Diego, California
Before: HURWITZ, OWENS, and LEE, Circuit Judges.
James Wilkinson appeals from the district court’s summary judgment in
favor of defendants California Highway Patrol (“CHP”) Officer Mark Magrann
and CHP Investigator Theresa Pines based on qualified immunity in his 42 U.S.C.
§ 1983 action. We review de novo both a district court’s grant of summary
judgment and a defendant officer’s entitlement to qualified immunity. S.B. v. Cty.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). As the parties are familiar with
the facts, we do not recount them here. We affirm.
1. At the time that defendants investigated Wilkinson and obtained a
search warrant, it was not clearly established for purposes of qualified immunity
that it violated Wilkinson’s double jeopardy rights to prosecute him for perjury for
allegedly testifying falsely in traffic court. See id. Based on then existing
precedent, defendants were not “plainly incompetent” to believe that Wilkinson’s
acquittal of the speeding charge did not necessarily decide that Wilkinson was
telling the truth when he denied being the driver of the speeding car. White v.
Pauly, 137 S. Ct. 548, 551 (2017) (citation omitted); see also United States v.
Castillo-Basa, 483 F.3d 890, 905 (9th Cir. 2007) (noting that under the Double
Jeopardy Clause there is no “per se bar against perjury prosecutions involving
defendants who testify and are acquitted at trial” and that “[w]hen an acquitting
jury has not necessarily or actually decided the question of a defendant’s veracity,
or a material issue sufficiently similar to one the prosecution must establish in the
prospective second proceeding, collateral estoppel does not bar a subsequent trial
for perjury”). In other words, at that time, the “contours” of Wilkinson’s double
jeopardy rights were not “sufficiently clear” that “every reasonable official” would
have understood that prosecuting Wilkinson for perjury violated those rights.
2
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation and internal quotation
marks omitted).
2. Moreover, even if the law was clearly established, defendants acted
reasonably by consulting a prosecutor, who reviewed the search application and
approved it, and by making a full disclosure to the magistrate who issued the
warrant. See Messerschmidt v. Millender, 565 U.S. 535, 553-54 (2012) (holding
that the officers reasonably believed that the scope of a warrant, which was
approved by a prosecutor and issued by a neutral magistrate, was supported by
probable cause). Any further claimed damages arose from the prosecutor’s
“independent decision[s],” not from any actions by defendants. McSherry v. City
of Long Beach, 584 F.3d 1129, 1137 (9th Cir. 2009) (stating that “[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” (quoting Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008))).
AFFIRMED.
3
FILED
OCT 24 2019
James Wilkinson v. Mark Magrann, et al., 18-55509 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HURWITZ, Circuit Judge, concurring in part and concurring in the judgment:
I concur in paragraph 2 of the memorandum disposition. For that reason, I
see no reason to reach the issue addressed in paragraph 1.