FILED
NOT FOR PUBLICATION MAY 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVE CHRISTENSEN, No. 11-35034
Plaintiff - Appellee, DC No. CV 09-189 BLW
v. MEMORANDUM *
DOUG ARMSTRONG, Detective,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted April 13, 2012
Seattle, Washington
Before: HUG, TASHIMA, and CALLAHAN, Circuit Judges.
Detective Doug Armstrong of the Bannock County Sheriff’s Department
appeals the district court’s denial of his motion for summary judgment based on
qualified immunity. Plaintiff Steve Christensen brought a malicious prosecution
claim against Armstrong pursuant to 42 U.S.C. § 1983, after he was charged and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
arrested for unlawful possession of firearms under an Idaho statute that did not
apply to him. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). We review the denial of summary judgment de
novo, Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en banc), and we
reverse and remand.
Our decision in Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981),
established a rebuttable presumption that the decision to file a criminal complaint
results from the independent determination of the prosecutor, insulating the officer
that initiated the criminal prosecution from liability. This presumption of
prosecutorial independence may be rebutted with evidence that the officer
“improperly exerted pressure on the prosecutor, knowingly provided
misinformation to him, concealed exculpatory evidence, or otherwise engaged in
wrongful or bad faith conduct that was actively instrumental in causing the
initiation of legal proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067
(9th Cir. 2004). “Such evidence must be substantial.” Harper v. City of L.A., 533
F.3d 1010, 1027 (9th Cir. 2008).
The district court relied on Christensen’s deposition testimony and affidavit
to hold that there were disputed issues of material fact precluding summary
judgment. Christensen’s deposition testimony and affidavit indicated that he told
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Armstrong that his civil rights had been restored, that he had been so advised by
his probation officer, and that he had possessed firearms in the past. Armstrong’s
report did not include these statements. Instead, it stated that Christensen told
Armstrong he was unsure whether his right to own firearms had been restored.
Christensen’s account of his conversation with Armstrong is not sufficient
evidence to overcome the presumption of prosecutorial independence. See
Newman v. Cnty. of Orange, 457 F.3d 991, 994-96 (9th Cir. 2006). Armstrong
stated in his police report that Christensen’s felony conviction dated back to 1977,
and it is the date of that conviction that made the Idaho firearms possession statute
inapplicable to him; the prosecutor thus had the relevant exculpatory evidence
before him when he made the decision to charge Christensen.
Because Christensen failed to rebut the presumption of prosecutorial
independence, we reverse the district court’s determination that Armstrong was not
entitled to qualified immunity and remand for further proceedings.
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