Thomas Goldstein v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THOMAS LEE GOLDSTEIN, No. 10-56787
Plaintiff-Appellant,
D.C. No.
v. 2:04-cv-09692-
AHM-E
CITY OF LONG BEACH; JOHN HENRY
MILLER, in his individual and
official capacity; WILLIAM OPINION
COLLETTE, in his individual and
official capacity; LOGAN WREN, in
his individual and official capacity;
WILLIAM MACLYMAN, in his
individual and official capacity,
Defendants,

and

COUNTY OF LOS ANGELES,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding

Argued and Submitted
November 8, 2012—Pasadena, California

Filed May 8, 2013
2 GOLDSTEIN V. CITY OF LONG BEACH

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit
Judges, and Gloria M. Navarro, District Judge.*

Opinion by Judge Thomas;
Concurrence by Judge Reinhardt

SUMMARY**

Civil Rights

The panel reversed the district court’s grant of a motion
for judgment on the pleadings, entered following a decision
by the United States Supreme Court, and held that the County
of Los Angeles could be liable pursuant to 42 U.S.C. § 1983
because the district attorney acted as final policymaker for the
County when adopting and implementing internal polices and
procedures related to the use of jailhouse informants.

Plaintiff spent 24 years in prison after being convicted for
murder based largely upon the perjured testimony of
unreliable jailhouse informant Edward Fink. He was released
after the district court determined that Fink had lied and that
it might have made a difference if the prosecution had told
plaintiff’s lawyer that Fink had received prior rewards in
return for favorable testimony. Subsequently, in plaintiff’s
§ 1983 case, the Supreme Court held that the Los Angeles

*
The Honorable Gloria M. Navarro, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 GOLDSTEIN V. CITY OF LONG BEACH 3

County district attorney and chief deputy district attorney
were absolutely immune from plaintiff’s claims that the
prosecution failed to disclose impeachment material due to a
failure to properly train prosecutors, failed to properly
supervise prosecutors, and failed to establish an information
system containing potential impeachment material about
informants. Van de Kamp v Goldstein, 555 U.S. 335, 339
(2009). On remand, the district court, among other things,
granted the County’s motion for judgment on the pleadings.

Reversing the district court, the panel held that the Los
Angeles County District Attorney represents the County
when establishing administrative policies and training related
to the general operation of the district attorney’s office,
including the establishment of an index containing
information regarding the use of jailhouse informants.
Therefore, a cause of action may lie against the County under
§ 1983.

Judge Reinhardt concurred with the opinion and wrote
separately to emphasize the problems related to the
eponymous and notorious Edward Fink and to explain why he
found unpersuasive the California Supreme Court’s reasoning
in Pitts v. County of Kern, 949 P.2d 920, 923 (Cal. 1998)
(holding that the district attorney represents the state, not the
county, when preparing to prosecute and when prosecuting
crimes, and when establishing policy and training employees
in these areas).
4 GOLDSTEIN V. CITY OF LONG BEACH

COUNSEL

Barrett S. Litt and Lindsay B. Battles, Litt, Estuar & Kitson,
LLP, Los Angeles, California, for Plaintiff-Appellant.

Tomas A. Guterres and Catherine M. Mathers, Collins
Collins Muir + Stewart LLP, South Pasadena, California;
Timothy T. Coates and Cynthia E. Tobisman, Greines,
Martin, Stein & Richland LLP, Los Angeles, California, for
Defendant-Appellee.

OPINION

THOMAS, Circuit Judge:

We consider in this case whether a district attorney acts
as a local or a state official when establishing policy and
training related to the use of jailhouse informants. We find
that, as to the policies at issue here, the district attorney was
acting as a final policymaker for the County of Los Angeles.
We thus reverse the district court’s grant of the motion for
judgment on the pleadings and remand the case.1

I

Thomas Goldstein spent 24 years in prison after being
convicted for murder based largely upon the perjured
testimony of an unreliable jailhouse informant, the
aptronymic Edward Fink. Van de Kamp v Goldstein,
555 U.S. 335, 339 (2009); see also Thompson v. Calderon,

1
Appellant’s motion for judicial notice is GRANTED.
 GOLDSTEIN V. CITY OF LONG BEACH 5

120 F.3d 1045, 1053-1054 (9th Cir. 1997) (describing Fink as
a “perennial informant,” and describing his exploits in some
detail), rev’d, 523 U.S. 538 (1998).

Fink was a heroin addict and convicted felon who had
previously received reduced sentences by testifying in other
cases and received a reduced sentence in exchange for his
testimony against Goldstein. Goldstein v. Superior Court,
195 P.3d 588, 590 (Cal. 2008). Some prosecutors in the Los
Angeles County District Attorney’s office allegedly knew
about Fink’s history, but failed to inform the prosecutors
trying Goldstein’s case or Goldstein’s counsel that Fink had
testified before or that he received a benefit for testifying
against Goldstein, and Fink lied on the stand when he was
asked about previous assistance given or benefits received.
Van de Kamp, 555 U.S. at 339.

Goldstein was convicted almost solely on the basis of
Fink’s testimony. The California Supreme Court explained
the evidence against Goldstein:

In 1979 Goldstein was an engineering student
and Marine Corps veteran with no criminal
history. He became a murder suspect after an
eyewitness to an unrelated shooting saw the
gunman enter Goldstein’s apartment building.
No witness or forensic evidence connected
Goldstein with the murder victim, but Long
Beach police detectives showed Goldstein’s
photograph, among others, to Loran
Campbell, an eyewitness to the homicide.
Campbell did not recognize anyone in the
photo lineup, and Goldstein did not match
Campbell’s description of the suspect.
6 GOLDSTEIN V. CITY OF LONG BEACH

However, a detective asked if Goldstein could
have been the person Campbell saw running
from the scene. Campbell said it was
possible, though he was not certain.

Goldstein was arrested and placed in a jail cell
with Edward Floyd Fink, a heroin addict and
convicted felon. At Goldstein’s trial, Fink
testified that Goldstein said he was in jail
because he shot a man in a dispute over
money.

Goldstein v. Superior Court, 195 P.3d 588, 590 (Cal. 2008).
Campbell later recanted his identification of Goldstein,
leaving Fink’s testimony as the basis for the conviction. Id.

In 1998, Goldstein filed a habeas petition in the Central
District of California. Van de Kamp, 555 U.S. at 339. At an
evidentiary hearing, the district court agreed that Fink had
lied and that it might have made a difference “if the
prosecution had told Goldstein’s lawyer that Fink had
received prior rewards in return for favorable testimony[.]”
Id. at 339. The court ordered the state to grant Goldstein a
new trial or release him, and the Court of Appeals affirmed.
Id. The state decided to release Goldstein, who had already
served 24 years of his sentence. Id.

Goldstein then filed this action under 42 U.S.C. § 1983.
Id. at 340. As relevant here, Goldstein claims that the Los
Angeles County District Attorney’s Office failed to create
any system for the Deputy District Attorneys handling
criminal cases to access information pertaining to the benefits
provided to jailhouse informants and other impeachment
information, and failed to train Deputy District Attorneys to
 GOLDSTEIN V. CITY OF LONG BEACH 7

disseminate this information. Goldstein explains that the
district attorney’s office was on notice that jailhouse
informants were falsely testifying and considered the creation
of a system to track benefits provided jailhouse informants
and other impeachment information, but failed to create any
system.

In 2009, the United States Supreme Court addressed
whether the Los Angeles County district attorney and chief
deputy district attorney had absolute immunity from suit for
Goldstein’s claims. While the Supreme Court “agree[d] with
Goldstein that, in making these claims, he attack[ed] the
office’s administrative procedures,” it concluded that “[t]hose
claims focus upon a certain kind of administrative
obligation—a kind that itself is directly connected with the
conduct of a trial.” Van de Kamp, 555 U.S. at 344.
Therefore, the Court held that the Los Angeles County district
attorney and chief deputy district attorney were absolutely
immune from Goldstein’s claims that the prosecution failed
to disclose impeachment material due to a failure to properly
train prosecutors, failed to properly supervise prosecutors,
and failed to establish an information system containing
potential impeachment material about informants. Id. at 339.

On remand, the district court entered judgment in favor of
Los Angeles County district attorney John Van de Kamp and
chief deputy district attorney Curt Livesay.2 As to the County
of Los Angeles’ motion for judgment on the pleadings, the
district court explained that this Court has not had occasion

2
The district court had also dismissed with prejudice claims against
Long Beach, California defendants the City of Long Beach, John Henry
Miller, William Collette, and William MacLyman based on a settlement
between those parties and Goldstein.
8 GOLDSTEIN V. CITY OF LONG BEACH

to address the claims at issue here, but “reluctantly
concluded” that the district attorney acts on behalf of the
state, rather than the county, in setting policy related to
jailhouse informants “in light of Weiner [v. San Diego
County, 210 F.3d 1025 (9th Cir. 2000)] and the two decisions
of [the Northern District of California] construing it.”
Therefore, the district court granted the County of Los
Angeles’ motion for judgment on the pleadings.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we review an order granting a motion for judgment on the
pleadings de novo. Harris v. Cnty. of Orange, 682 F.3d 1126,
1131 (9th Cir. 2012). For purposes of our review, “[a]ll
material allegations in a complaint must be taken as true and
viewed in the light most favorable to the plaintiff.” Geraci v.
Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003).

II

“Pursuant to 42 U.S.C. § 1983, a local government may
be liable for constitutional torts committed by its officials
according to municipal policy, practice, or custom.” Weiner
v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91
(1978)). “To hold a local government liable for an official’s
conduct, a plaintiff must first establish that the official (1) had
final policymaking authority concerning the action . . . at
issue and (2) was the policymaker for the local governing
body for the purposes of the particular act.” Id. at 1028
(citing McMillian v. Monroe Cnty., 520 U.S. 781, 785
(1997)). States and state officials acting in their official
capacities cannot be sued for damages under Section 1983.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);
 GOLDSTEIN V. CITY OF LONG BEACH 9

see Ceballos v. Garcetti, 361 F.3d 1168, 1183 n.11 (9th Cir.
2004).

Here, all parties agree that the district attorney is the
relevant policymaker. Thus, the viability of Goldstein’s
claim turns on whether the Los Angeles District Attorney
acted here as a policymaker for the state or for the county.
This determination is made on a function-by-function
approach by analyzing under state law the organizational
structure and control over the district attorney. See
McMillian v. Monroe Cnty., 520 U.S. 781, 785–86 (1997).

A

In McMillian, the Supreme Court first set out the
procedure to determine whether a policymaker acts on behalf
of the state or local government. The case involved the
sheriff of Monroe County, Alabama, and the Court sought to
determine whether he acted as a state or local official when
intimidating a witness into making false statements and
suppressing exculpatory evidence. 520 U.S. at 784. The
Court was clear that the inquiry is not undertaken in a
“categorical, ‘all or nothing’ manner,” but rather that the
“cases on the liability of local governments under § 1983
instruct us to ask whether governmental officials are final
policymakers for the local government in a particular area, or
on a particular issue.” Id. at 785 (citations omitted).

The Court explained that the “inquiry is dependent on an
analysis of state law.” Id. at 786. It looked first to the
Alabama Constitution, and concluded that “the constitutional
provisions concerning sheriffs, the historical development of
those provisions, and the interpretation given them by the
Alabama Supreme Court strongly support Monroe County’s
10 GOLDSTEIN V. CITY OF LONG BEACH

contention that sheriffs represent the State, at least for some
purposes.” Id. at 787. Alabama had taken specific steps both
in its Constitution and statutes to increase state control over
sheriffs and move the authority to impeach sheriffs “from the
county courts to the State Supreme Court, because of the
failure of county courts to punish officers for neglect of
duty.” Id. at 788 (citation and alterations omitted).

When looking to Alabama’s statutes, the Supreme Court
explained that sheriffs must “attend upon” state courts in the
county, “obey the lawful orders and directions” of state
courts, and “execute and return the process and orders of any
state court, even those outside his county.” Id. at 789
(internal quotation marks and citation omitted). “[T]he
presiding circuit judge exercise[s] a general supervision over
the county sheriffs in his circuit, just as if the sheriffs are
normal court [i.e., state] employees.” Id. at 790 (alterations
in original) (internal quotation marks and citation omitted).
“[M]ost importantly,” the Court explained, “sheriffs are given
complete authority to enforce the state criminal law in their
counties” and must report evidence of crimes to the district
attorney (who is, in Alabama, a state official), while the
counties have no powers of law enforcement. Id. The
governor and attorney general can “direct the sheriff to
investigate any alleged violation of law in their counties,” and
the sheriff must “promptly” complete the investigation and
write a report to the state official. Id. at 791 (internal
quotation marks and citations omitted). Finally, the Court
noted that “the salaries of all sheriffs are set by the state
legislature, not by the county commissions.” Id. (citation
omitted).
 GOLDSTEIN V. CITY OF LONG BEACH 11

On the other hand, the Supreme Court explained that “the
sheriff’s salary is paid out of the county treasury,”3 “the
county provides the sheriff with equipment (including
cruisers),” “the sheriff’s jurisdiction is limited to the borders
of his county,” and “the sheriff is elected locally by the voters
in his county.” Id. (internal quotation marks and citation
omitted). The Court noted but found “little merit” in the fact
that the county coroner fills temporary vacancies in the
sheriff’s office, the sheriff is indicated in the code among
“county officials” or “county employees,” and that the
Monroe County Commission’s insurance policy may cover
“some, but not all” of the claims against the Sheriff in this
case. Id. at 792 n.7. The Court “d[id] not find these
provisions sufficient to tip the balance in favor of petitioner”
because the county commission’s influence over the sheriff’s
operations was only “attenuated and indirect.” Id. at 792.

Therefore, the Supreme Court concluded that “the weight
of the evidence is strongly on the side of the conclusion” that
“Alabama sheriffs, when executing their law enforcement
duties, represent the State of Alabama, not their counties.”
Id. at 793.

B

Based on our analysis of the relevant California
constitutional and statutory provisions, we conclude that
California district attorneys act as local policymakers when

3
The county was not able to change the sheriff’s salary or refuse to pay
him, though it could “deny funds . . . beyond what is reasonably
necessary.” McMillian, 520 U.S. at 791 (internal quotation marks and
citation omitted).
12 GOLDSTEIN V. CITY OF LONG BEACH

adopting and implementing internal policies and procedures
related to the use of jailhouse informants.

We begin by examining district attorneys’ place within
the structure of government, and then by looking at the
constitutional and statutory provisions relevant to power and
duties of district attorneys within their counties, as well as the
control the California Attorney General and the county boards
of supervisors exercise over them. Our task, of course, is not
merely to weigh the amount of control that the Attorney
General and county board of supervisors possess over a
district attorney; instead, we must decide whether the district
attorney was acting on behalf of the state or the county.

As to governmental structure, “[t]he officers of a county
[include] [a] district attorney.” Cal. Gov. Code § 24000.
This is also reflected in Article XI of the California
Constitution, “Local Government,” under which “[t]he
Legislature shall provide for county powers, an elected
county sheriff, an elected district attorney, an elected
assessor, and an elected governing body in each county.”
Cal. Const. art. XI, § 1(b). Additionally, a district attorney
must be a registered voter of the county in which he or she is
elected, Cal. Gov. Code § 24001, and is elected by the voters
of the county, Cal. Gov. Code § 24009. A district attorney
may be removed from office by the same procedure as for
other city and county officials. Cal. Gov. Code § 3073.

Though these structural provisions provide a helpful
starting point for our analysis, the state’s label of the district
attorney as a county official informs but of course cannot
determine the result of our functional inquiry. See
McMillian, 520 U.S. at 792 n.7 (finding “little merit” in the
fact that the sheriff is indicated in the code among “county
 GOLDSTEIN V. CITY OF LONG BEACH 13

officials” or “county employees”). For our more specific
inquiry, we focus on district attorneys’ roles vis-a-vis the
state Attorney General and the county board of supervisors.

First, Article V, Section 13 of the California Constitution
states:

Subject to the powers and duties of the
Governor, the Attorney General shall be the
chief law officer of the State. It shall be the
duty of the Attorney General to see that the
laws of the State are uniformly and adequately
enforced. The Attorney General shall have
direct supervision over every district attorney
and sheriff and over such other law
enforcement officers as may be designated by
law, in all matters pertaining to the duties of
their respective offices, and may require any
of said officers to make reports concerning the
investigation, detection, prosecution, and
punishment of crime in their respective
jurisdictions as to the Attorney General may
seem advisable. Whenever in the opinion of
the Attorney General any law of the State is
not being adequately enforced in any county,
it shall be the duty of the Attorney General to
prosecute any violations of law of which the
superior court shall have jurisdiction, and in
such cases the Attorney General shall have all
the powers of a district attorney. When
required by the public interest or directed by
14 GOLDSTEIN V. CITY OF LONG BEACH

the Governor, the Attorney General shall
assist any district attorney in the discharge of
the duties of that office.

Cal. Const. art. V, § 13.

We have already analyzed Article V, Section 13 of the
California Constitution as it relates to sheriffs’ supervision by
the Attorney General, and concluded that despite this
provision, sheriffs are county officers for the purposes of
investigation. Brewster v. Shasta Cnty., 275 F.3d 803, 805
(9th Cir. 2001). We cautioned that significant “reliance on
Article V, section 13, would prove too much.” Id. at 809.
“Under this provision, if taken to its logical extreme, all local
law enforcement agencies in California would be immune
from prosecution for civil rights violation, thereby rendering
meaningless the decision in Monell, which preserves § 1983
actions against local governments.” Bishop Paiute Tribe v.
Cnty. of Inyo, 291 F.3d 549 (9th Cir. 2002), vacated on other
grounds by Inyo Cnty. v. Paiute-Shoshone Indians, 538 U.S.
701 (2003). Instead, “[s]uch general law enforcement
authority ‘does not contemplate absolute control and
direction’ of the officials subject to the Attorney General’s
supervision.” Brewster, 275 F.3d at 809 (citing People v.
Brophy, 120 P.2d 946, 953 (Cal. Ct. App. 1942) (“[I]t is at
once evident that “supervision” does not contemplate control
. . . .”)); see also Pitts v. Cnty. of Kern, 949 P.2d 920, 939
(Cal. 1998) (Mosk, J., dissenting) (explaining that Brophy’s
analysis of the California Constitutional provision “is still
good law”).4

4
A contrary conclusion here that the district attorney here acts on behalf
of the state would be in tension with Brewster, given our conclusion there
that the sheriff acts on behalf of the county when conducting
 GOLDSTEIN V. CITY OF LONG BEACH 15

Though the Attorney General “shall have direct
supervision over every district attorney and sheriff,” the
Attorney General’s control over the district attorney is quite
limited: he or she is limited to requiring a district attorney to
“make reports.” Cal. Const. art V, § 13; see Cal. Gov. Code
§ 12550. The Attorney General may also “call into
conference the district attorneys” “for the purpose of
discussing the duties of their respective offices.” Cal. Gov.
Code § 12524. This falls far short of a power to dictate
policy to district attorneys statewide, and is in contrast to the
sheriffs’ role in McMillian in which the governor and
attorney general could “direct the sheriff to investigate any
alleged violation of law in their counties,” and the sheriff had
to“promptly” complete the investigation and write a report to
the state official. McMillian, 520 U.S. at 791 (internal
quotation marks and citations omitted).

Further, unlike in McMillian, there was no significant
constitutional or statutory change that makes clear a trend to
place district attorneys under state control. See id. at 788.
Instead, when Article V, Section 13 was proposed in 1934, it
had as its goal efficiency and horizontal coordination, rather

investigations even though the Attorney General has much greater
supervisory power over sheriffs than district attorneys. Compare Cal.
Gov. Code § 12560 (“Whenever [the Attorney General] deems it
necessary in the public interest he shall direct the activities of any sheriff
relative to the investigation or detection of crime within the jurisdiction of
the sheriff. . . .” (emphasis added)) with Cal. Gov. Code § 12550 (“When
[the Attorney General] deems it advisable or necessary in the public
interest, or when directed to do so by the Governor, he shall assist any
district attorney in the discharge of his duties . . . .” (emphasis added)).
This is in contrast to the many provisions of the California Code that treat
sheriffs and district attorneys identically. See, e.g., Cal. Gov. Code
§§ 12524, 24000, 24001, 25300, 25303, 29601.
16 GOLDSTEIN V. CITY OF LONG BEACH

than a desire to weaken district attorneys or give the Attorney
General additional power. See 1934 Proposed Amendments
to Constitution, Propositions and Proposed Laws at 9 (“[T]he
manner in which the Dillingers, the ‘Baby Face’ Nelsons, the
Machine Gun Kellys, the Tuohys [sic] and numerous other
criminal gangs have been playing hide and seek with the
public authorities has truly became [sic] a National
disgrace.”). Additionally, district attorneys were added to the
list of county officials in a 1986 Amendment, which shows
that the most recent trend in California is to confirm the
district attorney’s place as a county officer. See Cal. Const.
Art. XI, § 1(b), historical notes.

If the Attorney General believes a district attorney is not
adequately prosecuting crime, the Attorney General is not
given the power to force a district attorney to act or adopt a
particular policy, but instead may step in and “prosecute any
violations of law” himself or herself. Cal. Const. art V, § 13;
see Cal. Gov. Code § 12550. The Attorney General may also,
“with or without the concurrence of the district attorney,
direct the grand jury to convene” and “may take full charge
of the presentation of the matters to the grand jury . . . .” Cal.
Penal Code § 923(a). The power to act in place of a district
attorney is undoubtedly less than if the Attorney General
could force a district attorney to use his or her own time and
resources to act.

If the Attorney General does step in to conduct a
prosecution, “in such cases the Attorney General shall have
all the powers of a district attorney,” Cal. Const. art V, § 13,
which suggests that the Attorney General does not have those
powers unless and until he or she steps in to conduct a
particular prosecution himself or herself. Finally, the
Attorney General is given the power to “assist the district
 GOLDSTEIN V. CITY OF LONG BEACH 17

attorney in the discharge of the duties of that office,” Cal.
Const. art V, § 13, but this similarly does not suggest control
over or the power to mandate that a district attorney adopt a
particular policy.

Outside of conducting criminal prosecutions, the Attorney
General’s power is even more attenuated: California
authority indicates that district attorneys act on behalf of the
county and are under the general control of the county board
of supervisors. “The board of supervisors shall supervise the
official conduct of all county officers,” including the district
attorney, and the district attorney’s use of public funds. Cal.
Gov. Code § 25303. As did the state in McMillian, the
county board of supervisors “exercise[s] a general
supervision over the” district attorney, and for most purposes,
district attorneys are treated as “normal” county employees.
See McMillian, 520 U.S. at 790 (alterations in original).

The fact that the board of supervisors’ control “shall not
be construed to affect the independent and constitutionally
and statutorily designated investigative and prosecutorial
functions of the sheriff and district attorney of a county,” Cal.
Gov. Code § 25303, does not change this conclusion. As we
have previously explained when analyzing this provision as
to the sheriff, this limitation seeks to insulate the sheriff and
district attorney “from political pressure.” Brewster,
275 F.3d at 809. “The provision thus is akin to a separation
of powers provision, and as such has no obvious bearing on
whether [they] should be understood to act for the state or the
county. . . . Merely because a county official exercises certain
functions independently of other political entities within the
county does not mean that he does not act for the county.” Id.
at 810. Therefore, even though the board of supervisors does
not exercise complete control over the district attorney, that
18 GOLDSTEIN V. CITY OF LONG BEACH

does not mean that the district attorney was not acting on
behalf of the county here.

Other provisions indicating that the district attorney here
acts on behalf of the county include that the district attorney
is paid “out of the county treasury,” Cal. Gov. Code § 28000,
and the board of supervisors “shall prescribe the
compensation” of the district attorney, Cal. Gov. Code
§ 25300; cf. McMillian, 520 U.S. at 791 (“[T]he salaries of all
sheriffs are set by the state legislature, not by the county
commissions.”). Necessary expenses incurred “in the
prosecution of criminal cases” are “county charges,” Cal.
Gov. Code § 29601, the district attorney must “account for all
money received by him in his official capacity and pay it over
to the treasurer” of the county board of supervisors. “The
district attorney shall render legal services to the county
without fee,” Cal. Gov. Code § 26520; is the “legal adviser”
for the county if there is no county counsel, Cal. Gov. Code
§ 26526; cannot “in any way advocate” against the county,
Cal. Gov. Code § 26527; and may defend the county against
the State of California in a state eminent domain proceeding,
Cal. Gov. Code § 26541.

Finally, counties are required to defend and indemnify the
district attorney in an action for damages. Cal. Gov. Code
§§ 815.2, 825. The county’s obligation to defend and
indemnify the district attorney in an action for damages is a
“crucial factor [that] weighs heavily[.]” Streit v. Cnty. of Los
Angeles, 236 F.3d 552, 562 (9th Cir. 2001) (citation omitted).
In McMillian, the Court explained that the state’s
responsibility for judgments against the sheriff was “critical”
for the case and “strong evidence in favor of the . . .
conclusion that sheriffs act on behalf of the State.”
McMillian, 520 U.S. at 789.
 GOLDSTEIN V. CITY OF LONG BEACH 19

C

In addition to constitutional and statutory provisions, the
practical treatment of the policies Goldstein addresses
supports the conclusion that this is a local, not statewide,
determination. In 1988, a jailed informant demonstrated on
60 Minutes how easy it was to concoct a plausible
“confession” to a crime by a prisoner he had never even met;
in part because of this demonstration, a Los Angeles County
Grand Jury convened to conduct “intensive investigation” and
heard testimony from 120 witnesses about the use of
jailhouse informants in Los Angeles County. Report of the
1989–90 Los Angeles County Grand Jury, Investigation of
the Involvement of Jail House Informants in the Criminal
Justice System in Los Angeles County 1–2 (1990), available
at http://www.ccfaj.org/documents/reports/jailhouse/expert/
1 9 8 9-1 99 0 %20LA%20 C o u n t y% 2 0 G r a n d % 2 0 J u r y
%20Report.pdf.

The report it issued in 1990 recommended that the Los
Angeles County “District Attorney’s Office should maintain
a central file which contains all relevant information
regarding the informant,” id. at 149, which that District
Attorney’s Office has now done. See Steve Cooley, Los
Angeles County District Attorney’s Office, Legal
Policies Manual 188 (April 2005), available at
http://www.ccfaj.org/documents/reports/jailhouse/expert/
LACountyDApolicies.pdf.

In 2004, a California State Senate Resolution created the
California Commission on the Fair Administration of Justice,
which was asked to “make any recommendations and
proposals designed to further ensure that the application and
administration of criminal justice in California is just, fair,
20 GOLDSTEIN V. CITY OF LONG BEACH

and accurate[.]” California Commission on the Fair
Administration of Justice, Final Report 186 (2008), available
at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf.

The Commission issued its final report in 2008 and made
individualized recommendations about informant testimony
for the legislature, police agencies, prosecutors, judges, and
defense lawyers. Id. at 13–14. The report specifically
recommended that “California District Attorney Offices adopt
a written internal policy, wherever feasible, to govern the use
of in-custody informants. The policy should provide [for] the
maintenance of a central file preserving all records relating to
contacts with in-custody informants, whether they are used as
witnesses or not.” Id. It is instructive that the Committee,
with significant expertise with both district attorneys offices
and state office,5 specifically recommended that “California
District Attorney Offices” should maintain the central file of
informants, and did not include this among its separate
recommendations for the legislature or suggest that the
Attorney General promulgate a rule. The Commission also
conducted a survey of California county district attorneys,
and of the nine responses the Commission received, only two
offices had a “policy [that] requires the maintenance of a
central file of all informant information.” Id. at 47. This
similarly suggests that, at least up to this point, district

5
For example, the Chair of the Commission was John K. Van de Kamp,
the Los Angeles County District Attorney at the time Goldstein was
tried and later a two-term Attorney General for the State of California.
See California Commission on the Fair Administration of Justice,
Final Report 1 (2008), available at http://www.ccfaj.org/documents/
CCFAJFinalReport.pdf.
 GOLDSTEIN V. CITY OF LONG BEACH 21

attorney office policies related to informants have been
addressed by the individual offices rather than by the state.6

D

Taking all of these provisions together, it is clear that the
district attorney acts on behalf of the state when conducting
prosecutions, but that the local administrative policies
challenged by Goldstein are distinct from the prosecutorial
act. Most significant is the contrast between the steps that
were taken in Alabama to increase the state’s control over the
sheriff in McMillian and the contrary California trend to
categorize district attorneys as county officials; the fact that
“[t]he board of supervisors shall supervise the official
conduct of all county officers,” Cal. Gov. Code § 25303; and
the fact that the county must defend and indemnify the
district attorney in an action for damages, which the Supreme

6
We do recognize that the fact that the Attorney General has not
required all district attorney offices to adopt a policy creating a central file
for informants does not mean that she lacks the power to do so, but we do
note that Los Angeles County contends that the Attorney General has
much greater power than has ever been exercised. At oral argument, for
example, the County explained that the Attorney General has the power
to make the decision that no death penalty cases will be prosecuted in the
state of California, to require district attorneys offices statewide to
maintain an “open-file” policy, or to require that a centralized database for
jailhouse informants be adopted. The County offered neither authority for
nor examples of an Attorney General establishing policy in this way. The
County was also unable to offer and we have been unable to find any
example of the Attorney General stepping in to take over a prosecution or
dictating any sort of policy to a district attorney’s office without a request
from the district attorney’s office that he or she do so.
22 GOLDSTEIN V. CITY OF LONG BEACH

Court deemed “critical” in McMillian, 520 U.S. at 789; see
Cal. Gov. Code §§ 815.2, 825. Even taking into account the
control and supervisory powers of the Attorney General, the
Los Angeles County District Attorney represents the county
when establishing administrative policies and training related
to the general operation of the district attorney’s office,
including the establishment of an index containing
information regarding the use of jailhouse informants.

III

The County raises additional arguments. However, on
close examination, none is persuasive.

The County’s contention that the Supreme Court’s
conclusion in Van de Kamp determines the outcome of this
case is incorrect. Though the inquiries of prosecutorial
immunity and state or local policymaking may be related,
they are separate. The prosecutorial immunity inquiry
focuses on “policy considerations which compel civil
immunity,” Imbler v. Pachtman, 424 U.S. 409, 429 (1976),
and is a federal question that will have a consistent answer
nationwide. See Howlett v. Rose, 496 U.S. 356, 383 (1990).
The state-local determination under Section 1983, although
also a federal question ultimately, depends on a careful and
thorough analysis of state constitutional and statutory
provisions, and will vary “from region to region, and from
State to State.” McMillian v. Monroe Cnty., 520 U.S. 781,
795 (1997). In Van de Kamp, the Supreme Court did not look
to or examine California law, but focused on common-law
traditions and policy implications in determining that the
district attorney was entitled to absolute immunity.
 GOLDSTEIN V. CITY OF LONG BEACH 23

The County similarly asserts, without citation, that
California law conflates the two analyses: district attorneys
act as State officials in the same instances that they are
protected by absolute prosecutorial immunity. However, the
California Supreme Court has explained that it is incorrect to
“assume[] that the functions for which a prosecutor may
obtain absolute, as opposed to qualified, immunity parallel
those for which a district attorney represents the state, as
opposed to the county.” Pitts, 949 P.2d at 935. “[T]hese are
in fact separate inquiries.” Id.; see also Pembaur v. City of
Cincinnati, 475 U.S. 469, 474 n.2 (1986) (holding county
liable for prosecutor’s actions after petitioner had conceded
that prosecutor was absolutely immune).

Contrary to the County’s argument, our decision in
Weiner has no bearing on this case. In Weiner, we held that
a “district attorney act[s] on behalf of the state, not the
county, in deciding to prosecute” a person for a crime, but
acknowledged that “this is not to say that district attorneys in
California are state officers for all purposes. To the contrary,
California law suggests that a district attorney is a county
officer for some purposes.” Weiner, 210 F.3d at 1026, 1031.
Weiner challenged the prosecutor’s decision to retry him for
murder after he was granted a new trial. Id. at 1027. In
concluding that “a county district attorney acts as a state
official when deciding whether to prosecute an individual,”
we focused on the fact that, under California law, “[i]n the
prosecution of criminal cases [the district attorney] acts by
the authority and in the name of the people of the state.” Id.
at 1030 (citations omitted); see also Cal. Gov. Code § 26500.
Because we do not address the decision to prosecute an
individual, the analysis in Weiner does not resolve the
question before us today.
24 GOLDSTEIN V. CITY OF LONG BEACH

Similarly, the County is incorrect that we are bound by
the California Supreme Court’s determination in Pitts that the
district attorney acts on behalf of the state for some purposes.
Though we must look at the relevant state law and state
courts’ characterizations of that law, the final determination
under 42 U.S.C. § 1983 is a federal law statutory
interpretation question; no deference is due to the ultimate
conclusion of the California court that the provisions, taken
as a whole, indicate the district attorney was a state actor
under Section 1983 for any particular function. See Weiner,
210 F.3d at 1025. “Although we must consider the state’s
legal characterization of the government entities which are
parties to these actions, federal law provides the rule of
decision in section 1983 actions.” Streit v. Cnty. of Los
Angeles, 236 F.3d 552, 560 (9th Cir. 2001) (citations
omitted). “State law does not control our interpretation of a
federal statute.” Id.; see also Cortez v. Cnty. of Los Angeles,
294 F.3d 1186, 1191 (9th Cir. 2002); Brewster, 275 F.3d at
811.

Nonetheless, we need not disrupt the California Supreme
Court’s conclusion because Pitts addressed a district attorney
function different than the one we confront today. In Pitts,
the California Supreme Court concluded that “the district
attorney represents the state, not the county, when preparing
to prosecute and when prosecuting crimes, and when
establishing policy and training employees in these areas.”
Pitts v. Cnty. of Kern, 949 P.2d 920, 923 (Cal. 1998). Pitts
alleged that the County and district attorney “established a
pattern, custom, and practice of procuring false statements
and testimony by threat, . . . bribery, and coercion of
witnesses” that “failed to provide adequate training,
procedures, guidelines, rules, and regulations to prevent such
conduct . . . .” Id. at 927. The court noted that it was “not
 GOLDSTEIN V. CITY OF LONG BEACH 25

seeking to make a characterization of [California district
attorneys] that will hold true for every type of official activity
they engage in,” but instead focused on the district attorney’s
function “when preparing to prosecute and when prosecuting
criminal violations of state law, and when training and
developing policies for employees engaged in these
activities.” Id. at 928.

The California Supreme Court analyzed the provisions of
the California Constitution and the statutes discussed above,
and based on these considerations, it concluded that “when
preparing to prosecute and when prosecuting criminal
violations of state law, a district attorney represents the state
and is not a policymaker for the county.” Id. at 934. That
determination is not implicated by Goldstein’s claims.

As to training and supervising staff, the California
Supreme Court said that based on its conclusion that the
district attorney represents the state “when preparing to
prosecute and when prosecuting criminal violations of state
law,” it “further concludes it logically follows that he or she
also represents the state, and not the county, when training
and developing policy in these areas. No meaningful
analytical distinction can be made between these two
functions.” Id. at 935. Separating these two functions would
“require impossibly precise distinctions” and would lead to
“nonsensical,” “arbitrary” results. Id.

The Pitts Court examined the training and policies that
“failed to . . . prevent” the use of “threat, . . . bribery, and
coercion of witnesses,” id. at 927, and the challenged policies
were part of the training for district attorneys’ preparation of
individual witness for particular trials. In Pitts, child
witnesses were coerced into testifying falsely that the
26 GOLDSTEIN V. CITY OF LONG BEACH

defendants, their acquaintances or relatives, had sexually
abused them. Id. at 923. Coerced testimony from the alleged
victim of a crime is inextricably linked to the prosecution of
that crime.

The function at issue here, on the other hand, is
distinguishable from the question confronted by the
California Supreme Court because Goldstein challenges
administrative policy and accompanying training, rather than
prosecutorial training and policy. Goldstein’s challenge
focuses on the failure to create an index that includes
information about benefits provided to jailhouse informants
and other previous knowledge about the informants’
reliability, and the failure to train prosecutors to use that
index. Goldstein alleges that it was the lack of an index that
allowed Fink to lie about the benefits he received for
testifying against Goldstein, prevented prosecutors in
Goldstein’s case from knowing Fink’s history, and prevented
Goldstein’s counsel from impeaching Fink.

The conduct at issue here does not involve prosecutorial
strategy, but rather administrative oversight of systems used
to help prosecutors comply with their constitutional duties.
See Van de Kamp, 555 U.S. at 344 (“We agree with Goldstein
that, in making these claims, he attacks the office’s
administrative procedures.”); Pitts, 949 P.2d at 935 (“Our
conclusion as to which entity the district attorney represents
might differ were plaintiffs challenging . . . some other
administrative function . . . .”). In Pitts, there was no
administrative function involved. There can be a
“meaningful analytical distinction” between policies and
training relating to prosecutorial functions and an index made
and maintained as an administrative matter.
 GOLDSTEIN V. CITY OF LONG BEACH 27

IV

In sum, we conclude that the policies challenged by
Goldstein are distinct from the acts the district attorney
undertakes on behalf of the state. Even taking into account
the control and supervisory powers of the Attorney General,
the Los Angeles County District Attorney represents the
county when establishing policy and training related to the
use of jailhouse informants. Therefore, a cause of action may
lie against the County under 42 U.S.C. § 1983. We reverse
the judgment of the district court.

REVERSED AND REMANDED.

REINHARDT, Circuit Judge, concurring:

I concur fully in Judge Thomas’s opinion and write
separately to make two points, one brief and one less so.

I.

Judge Thomas understates the problem with the
eponymous and notorious Edward Fink, if that is possible. In
the case that Judge Thomas cites, Thompson v. Calderon,
120 F.3d 1045 (9th Cir. 1997) (en banc), rev’d, 523 U.S. 538
(1998), Thomas Thompson was executed on the basis of
Fink’s perjured testimony. It is unlikely that Thompson was
death-eligible for his part in the crime, if he was guilty at all
of any offense. See generally Stephen Reinhardt, The
Anatomy of an Execution: Fairness vs. “Process”, 74 N.Y.U.
L. Rev. 313, 322–26 (1999). At Thompson’s trial, the
prosecutor committed prosecutorial misconduct that
28 GOLDSTEIN V. CITY OF LONG BEACH

constituted a constitutional violation and required reversal.
See Thompson, 120 F.3d at 1055. Additionally, Thompson’s
lawyer provided woefully inadequate representation, which
constituted another constitutional violation that required
reversal. See id. at 1053–54.

Despite a request to reverse Thompson’s conviction by
seven California prosecutors with extensive death penalty
experience, including the author of California’s death penalty
statute, the Supreme Court refused to consider Fink’s
perjured testimony or any of the constitutional violations, on
the dubious ground that our court abused its discretion in
recalling the mandate, on a basis that the Court had never
before recognized. Calderon v. Thompson, 523 U.S. 538
(1998).

Although Thompson was executed as a result of Fink’s
perjury (as well as the other unfortunate judicial matters
described above), the innocent Mr. Goldstein was fortunate
enough to avoid that fate. See Goldstein v. Harris, 82 F.
App’x 592, 593 (9th Cir. 2003) (affirming the district court’s
grant of habeas relief). He now seeks civil damages for
spending twenty-four years of his life in prison, as a result of
the Los Angeles County District Attorney’s Office’s failure
to adopt necessary and reasonable internal administrative
policies and procedures. I agree that he is entitled to pursue
his claim.

II.

One of the principal arguments on which the County
relies is the California Supreme Court’s decision in Pitts v.
County of Kern, 949 P.2d 920, 923 (Cal. 1998), in which that
court held that “the district attorney represents the state, not
 GOLDSTEIN V. CITY OF LONG BEACH 29

the county, when preparing to prosecute and when
prosecuting crimes, and when establishing policy and training
employees in these areas.” I agree with Judge Thomas that we
are not bound by Pitts and that the policy at issue in Pitts
differs in kind from the administrative procedure that the
District Attorney failed to implement in this case. I write
separately, however, to explain why I find the reasoning in
Pitts to be unpersuasive. In short, the California Supreme
Court’s reasoning in Pitts is imprecise on a question that
demands precision.

To begin, the California Supreme Court never clearly
states the scope of its holding. On multiple occasions, the
state court writes that the setting of policy and training of
employees “in these areas” is a state function. E.g., Pitts,
949 P.2d at 923; id. at 934. I can only presume that “in these
areas” refers to the prosecution of crimes. The problem is that
virtually every “policy” in a district attorney’s office has
some relationship to the prosecution of crimes. Some policies
are directly related to the prosecutorial function—e.g., a
policy that prosecutors must instruct their witnesses to tell the
truth at all times when testifying. Some procedures are
indirectly related, if at all—e.g., a procedure governing the
disposal of confidential material in the office. I would call the
latter category of procedures “administrative.” The real
question then is whether the matter at issue is prosecutorial or
administrative. If prosecutorial, then the district
attorney—under the circumstances present in Pitts—serves as
a state actor. If administrative, then the district attorney—as
Judge Thomas’s opinion for the court explains—serves as a
county actor.

The California Supreme Court in large part avoided this
question in Pitts. It stated that drawing lines would “require
30 GOLDSTEIN V. CITY OF LONG BEACH

impossibly precise distinctions.” Pitts, 949 P.2d at 935. It
further declared that “no meaningful analytical distinction can
be made between” individual prosecutions and the setting of
policy and training of employees. Id. Thus, it suggested that
the establishing of all policies (including dress codes and the
like) and the training of all employees (presumably including
secretaries and janitors) is a state function, as well as the
prosecution of all cases.

I find the California Supreme Court’s imprecise answer
unpersuasive, for three reasons. First, the California Supreme
Court failed to follow the process set forth in McMillian,
which is for courts to make an independent determination
“whether governmental officials are final policymakers for
the local government in a particular area or on a particular
issue.” McMillian v. Monroe County, 520 U.S. 781, 785
(1997) (emphasis added). In Pitts, however, the California
Supreme Court made no function-specific determination.
Rather, it relied primarily on its conclusion that a district
attorney is a state actor when conducting individual
prosecutions and asserted that it “logically follow[ed]” that a
district attorney was also a state actor when setting policy or
training employees. Pitts, 949 P.2d at 934–35.1 In contrast, in
our opinion for the court, we conduct a close examination of
the relevant constitutional and statutory provisions and
conclude that the “Los Angeles County District Attorney
represents the county when establishing administrative
policies and training related to the general operation of the
district attorney’s office, including the establishment of an

1
It made only a passing reference to one provision of the California
Constitution, Article V, Section 13, which is not specific to the function
at issue in Pitts or in this case. See Maj. Op. at 13–17.
 GOLDSTEIN V. CITY OF LONG BEACH 31

index containing information regarding the use of jailhouse
informants.” Maj. Op. at 22.

Second, the California Supreme Court’s discussion is not
internally consistent. Despite asserting that distinguishing
policy and training decisions from individual prosecutorial
decisions would require “impossibly precise distinctions.”
Pitts, 949 P.2d at 935, the state court stated that its conclusion
“might differ were plaintiffs challenging a district attorney’s
alleged action or inaction related to hiring or firing an
employee . . . or some other administrative function.” Pitts,
949 P.2d at 935. This distinction eludes me. The training of
employees is no more related to individual prosecutions than
the hiring, firing, or disciplining of those employees. If “no
meaningful analytical difference” exists between individual
prosecutions and employee training, then it should not exist
between individual prosecutions and employee hiring or
firing; yet the California Supreme Court suggested that the
latter might yield a different conclusion. A better explanation
for the California Supreme Court’s inconsistency is that it
must have recognized that its conclusion would otherwise call
into question a vast swath of Section 1983 jurisprudence, in
which counties are generally held liable for failure to hire or
fire decisions. See Bd. of Cnty. Comm’rs v. Brown, 520 U.S.
397 (1997). Unlike the California Supreme Court, we reach
a consistent conclusion here: counties should be held liable
for their administrative policies and procedures, including the
training of their employees and the hiring and firing of those
employees. See, e.g., Connick v. Thompson, 131 S. Ct. 1350,
1359 (2011).

Third, the California Supreme Court was simply incorrect
when it stated that its conclusion follows as a matter of
“logic.” The entirety of our opinion contradicts this assertion
32 GOLDSTEIN V. CITY OF LONG BEACH

of logical inference. As we have demonstrated through a
close examination of the various constitutional and statutory
provisions, a district attorney may act on behalf of the state
when making prosecutorial decisions but act on behalf of the
county when setting administrative policy or training
employees. See Maj. Op. at 11–22. I therefore agree with the
highly respected California Supreme Court Justice Stanley
Mosk who wrote:

[T]here is no insurmountable analytical
difficulty to concluding that a county cannot
be held liable under section 1983 when the
district attorney or one of his or her deputies,
as an agent of the state, commits prosecutorial
misconduct, but can be held liable when the
district attorney’s hiring, training and
supervision program, which the district
attorney undertakes as a local policymaker,
results in injury to a person’s civil rights.

Pitts, 949 P.2d at 940 (Mosk, J., dissenting). Indeed, several
circuits have come to the same conclusion that we reach here,
that district attorneys act as county officers when deciding
administrative policy and procedures related to training or
supervision, even though they act as state officers when
conducting prosecutions. E.g., Walker v. City of New York,
974 F.2d 293, 296 (2d Cir.1992); Carter v. City of
Philadelphia, 181 F.3d 339, 352 (3d Cir. 1999); Esteves v.
Brock, 106 F.3d 674, 678 (5th Cir.1997); Owens v. Fulton
County, 877 F.2d 947, 952 (11th Cir. 1989). Thus, I believe
that there can be and is a “meaningful analytical distinction”
between prosecutorial decisions and the creation of
administrative policy or the training of employees.
 GOLDSTEIN V. CITY OF LONG BEACH 33

I do not suggest that it is always easy to distinguish
between policies that are prosecutorial in nature and
procedures that are administrative in nature. That point
notwithstanding, it is the proper inquiry. Line drawing is
frequently a difficult task for jurists. It is, however, one we
perform regularly. As Justice Oliver Wendell Holmes wrote
almost a century ago:

Neither are we troubled by the question where
to draw the line. That is the question in pretty
much everything worth arguing in the law.
Day and night, youth and age are only types.

Irwin v. Gavit, 268 U.S. 161, 168 (1925) (internal citation
omitted); see also Dominion Hotel v. State of Arizona,
249 U.S. 265, 269 (1919) (Holmes, J., for the court) (“[T]he
constant business of the law is to draw such lines.”). Nor is he
the only jurist of the Supreme Court to recognize this point.2

2
10 E. 40th St. Bldg. v. Callus, 325 U.S. 578, 584-85 (1945)
(Frankfurter, J., for the court) (“On the terms in which Congress drew the
legislation we cannot escape the duty of drawing lines. And when lines
have to be drawn they are bound to appear arbitrary when judged solely
by bordering cases. To speak of drawing lines in adjudication is to express
figuratively the task of keeping in mind the considerations relevant to a
problem and the duty of coming down on the side of the considerations
having controlling weight. Lines are not the worse for being narrow if they
are drawn on rational considerations. ”); Rosenberger v. Rector & Visitors
of Univ. of Virginia, 515 U.S. 819, 847 (1995) (O’Connor, J., concurring)
(“Reliance on categorical platitudes is unavailing. Resolution instead
depends on the hard task of judging—sifting through the details and
determining whether the challenged program offends . . . . Such judgment
requires courts to draw lines, sometimes quite fine, based on the particular
facts of each case.”). These are but a handful of the examples in which
Justices of the Supreme Court have recognized that line-drawing is
inherent in the task of judging.
34 GOLDSTEIN V. CITY OF LONG BEACH

The Pitts court abdicated its judicial function by adopting a
rule that avoids a case-by-case inquiry into whether a
particular function at issue is prosecutorial or administrative.