FILED
NOT FOR PUBLICATION
JUL 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIOLORDO APPLING, an Individual, No. 15-55732
Plaintiff-Appellant, D.C. No.
2:13-cv-08891-JAK-AJW
v.
CITY OF LOS ANGELES, a local public MEMORANDUM*
entity; DETECTIVE SUE
BRANDSTETTER; DETECTIVE
THOMAS SMALL, in his official
capacity; DETECTIVE TIMO ILLIG,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted March 8, 2017
Pasadena, California
Before: PREGERSON, PAEZ, and CHRISTEN, Circuit Judges.
This is a civil rights case brought by Riolordo Appling (“Appling”) under 42
U.S.C. §§ 1983 and 1985 against the City of Los Angeles and individual Los
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Angeles Police Department (LAPD) detectives. Appling’s civil rights claims arise
out of his arrest, conviction, and incarceration for a crime he argues he did not
commit. The district court granted summary judgment in favor of the defendants.
Appling timely appealed.
Shortly after midnight on June 1, 2009, a fight broke out in the parking lot of
a Hollywood nightclub. The fight ended when the primary instigator (the “male
suspect”) and his female companion fled the scene in a white BMW. As the male
suspect sped out of the parking lot, he ran over Michael Weaver, who had been
punched unconscious during the melee. Mr. Weaver sustained serious injuries, but
survived.
Responding LAPD detectives interviewed witnesses who described the
BMW, the male suspect, and his female companion. The detectives quickly
identified the woman, as she was a regular patron of the nightclub. After nearly a
year of unsuccessful attempts to contact her, the woman finally called the
detectives back. Although she was largely uncooperative, the woman told the
detectives she had a friend named Riolordo Appling who was a young African
American man, like the male suspect. The detectives ran Appling’s name through
a database and learned that he received a traffic ticket four months after the
incident while driving a white BMW. The detectives compiled a six-pack photo
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spread with Appling’s photograph and showed it to the seven witnesses they had
previously interviewed. Only one witness made a positive, unqualified
identification of Appling.
The detectives then presented the case to the Los Angeles County District
Attorney’s Office. Prosecutors charged Appling with assault, felony hit and run,
and felony battery. The detectives obtained an arrest warrant and arrested Appling.
Appling pled not guilty. A jury convicted him on all counts.
After his conviction, Appling hired a new attorney who requested further
forensic examination of the BMW Appling drove. The examination established
that the BMW Appling drove still had all of its factory windows. This was
significant because the driver’s side window of the BMW used in the crime had
been shattered in the course of the melee. Based on this evidence, it became clear
that the BMW Appling drove was not the same car used to commit the crime. As a
result, the trial judge granted Appling a new trial. The prosecutor did not refile
charges and the trial judge dismissed the case. Appling was incarcerated for 11
months.
After Appling was released, he filed this civil rights action against the City
of Los Angeles and three LAPD detectives, alleging various civil rights claims
under 42 U.S.C. §§ 1983 and 1985. The district court granted the defendants’
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motion for summary judgment and Appling timely appealed. We have jurisdiction
under 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand for a
trial.
“A grant of summary judgment is reviewed de novo. Likewise, a grant of
summary judgment on the ground of qualified immunity is also reviewed de novo.”
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007) (citations
omitted). Appling alleges seven claims under 42 U.S.C. § 1983 and one claim
under 42 U.S.C. § 1985.1 We address each in turn.
First, Appling argues that he was falsely arrested because the arrest warrant
application was facially invalid. Under 42 U.S.C. § 1983, a plaintiff may establish
a false arrest claim by showing “that a warrant lacked probable cause on its face.”
Chism v. Washington State, 661 F.3d 380, 386 n.9 (9th Cir. 2011). “Probable
cause to arrest exists when officers have knowledge or reasonably trustworthy
information sufficient to lead a person of reasonable caution to believe that an
offense has been or is being committed by the person being arrested.” United
States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “[A]n affidavit supporting
the warrant, or the complaint itself, ‘must recite competent facts that would lead a
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Appling abandoned an additional claim under § 1985(2) for conspiracy to
obstruct justice by failing to address it in his briefing. See, e.g., Weston v.
Lockheed Missiles & Space Co., 881 F.2d 814, 816 (9th Cir. 1989).
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man of ordinary caution and prudence conscientiously to entertain a strong
suspicion of the guilt of the accused.’” In re Walters, 543 P.2d 607, 614 (Cal.
1975) (en banc) (quoting People v. Cressey, 471 P.2d 19, 24 (Cal. 1970)). Officers
are entitled to qualified immunity unless the “lack of probable cause was so
obvious that any reasonable officer would conclude that the warrant was facially
invalid.” KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir. 2008). For the
reasons discussed below, we reverse the district court’s order granting summary
judgment and qualified immunity in favor of the defendants as to this claim.
Other than the felony complaint, the record does not reflect what documents
comprised the warrant application. The felony complaint contained few facts and
the record does not include a warrant affidavit. Even if the detectives included
every available fact in the warrant application, there was minimal evidence
supporting Appling’s arrest: witnesses gave vague and conflicting descriptions of
the male suspect, the BMW’s license plate number is disputed, and the
circumstances of the crime (it was dark and many witnesses were intoxicated), plus
the 11-month delay between the crime and the six-pack photo spread, render
witnesses’ identifications of Appling unreliable. See Manson v. Braithwaite, 432
U.S. 98, 116 (1977); Torres v. City of Los Angeles, 548 F.3d 1197, 1209 (9th Cir.
2008); Grant v. City of Long Beach, 315 F.3d 1081, 1088 (9th Cir. 2002), opinion
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amended on denial of reh’g, 334 F.3d 795 (9th Cir. 2003). Viewing this evidence
in the light most favorable to Appling, the nonmoving party, we conclude that
triable issues of material fact exist as to whether the “lack of probable cause was so
obvious that any reasonable officer reading the warrant would conclude that the
warrant was facially invalid.” KRL, 512 F.3d at 1192.
Second, Appling argues that the defendants falsely arrested him because
they engaged in judicial deception. To survive summary judgment on a judicial
deception claim, a plaintiff “must make (1) a substantial showing of deliberate
falsehood or reckless disregard for the truth, and (2) establish that but for the
dishonesty, the challenged action would not have occurred.” Butler v. Elle, 281
F.3d 1014, 1024 (9th Cir. 2002) (internal quotation marks omitted). “[I]f an officer
submitted an affidavit that contained statements he knew to be false or would have
known to be false had he not recklessly disregarded the truth . . . the shield of
qualified immunity is lost.” Id. (citing Hervey v. Estes, 65 F.3d 784, 788–89 (9th
Cir. 1995)). For the following reasons, we reverse the district court’s order
granting summary judgment and qualified immunity in favor of the defendants as
to this claim.
The defendants’ “pre-arrest warrant” reports (which the defendants allegedly
submitted to the judge issuing the arrest warrant) state that the BMW involved in
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the crime “was determined to have been driven by a Riolordo Appling.” But
whether Appling drove the BMW was exactly what had not been determined.
Because the record reflects uncertainty as to whether the BMW Appling drove had
a different license plate number than the BMW used in the crime, the
aforementioned statement constitutes at least a reckless disregard for the truth. The
defendants also failed to emphasize that only one witness was certain about his
identification of Appling from the photo spread. Viewing this evidence in the light
most favorable to Appling, the nonmoving party, we conclude that triable issues of
material fact exist as to whether the defendants recklessly disregarded the truth and
whether “but for the dishonesty” the judge would have issued the arrest warrant.
See Elle, 281 F.3d at 1024.
Third, Appling alleges a malicious prosecution claim. A malicious
prosecution claim requires a showing “that the defendants prosecuted [the plaintiff]
with malice and without probable cause, and that they did so for the purpose of
denying [him] a specific constitutional right.” Smith v. Almada, 640 F.3d 931, 938
(9th Cir. 2011) (internal quotation marks omitted). Appling does not raise a
genuine issue of material fact regarding whether the defendants acted maliciously.
Fourth, Appling contends that the defendants deliberately fabricated
evidence in violation of Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir.
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2001). Although witnesses provided varied descriptions of the male suspect, the
defendants did not fabricate witnesses’ statements. There is no evidence that the
defendants pressured witnesses, nor that they knew that the BMW Appling drove
could not have been the car used to perpetrate the crime.
Fifth, Appling claims that the defendants withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Appling claims that the
defendants hid evidence that the BMW Appling drove was not the vehicle used in
the crime. This claim is unsupported. Appling also argues that the defendants
concealed that one witness had an adverse incentive against Appling, but Appling
was already aware of this because that witness had filed a civil lawsuit against him.
See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (finding no Brady violation
where “Petitioner possessed the salient facts regarding the existence of the records
that he claims were withheld”). Finally, Appling argues that the defendants did not
give one of their investigative files to the prosecutors, but the file in question did
not exist until after Appling’s criminal trial.
Sixth, Appling alleges an equal protection claim. “To succeed on a § 1983
equal protection claim, the plaintiff[] must prove that the defendants acted in a
discriminatory manner and that the discrimination was intentional.” Reese v.
Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). Appling argues
8
that “there were different and unconstitutional standards afforded to him because
he is a black American.” This assertion is insufficient to overcome summary
judgment. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)
(“[C]onclusory statements of bias do not carry the nonmoving party’s burden in
opposition to a motion for summary judgment.”).
Seventh, Appling alleges a municipal liability claim against the City of Los
Angeles. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978).
However, Appling does not provide evidence of a deficient LAPD policy or
custom sufficient to support his Monell claim.
Finally, Appling alleges a claim under 42 U.S.C. § 1985(3). To establish a
§ 1985(3) claim, a plaintiff must, among other things, establish “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.
1992) (citation omitted). For the reasons previously outlined, Appling has not met
this burden.
***
In sum, we affirm the district court’s grant of summary judgment in favor of
the defendants as to Appling’s malicious prosecution, Devereaux, Brady, equal
protection, Monell, and § 1985(3) claims. We reverse the district court’s grant of
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summary judgment in favor of the defendants as to Appling’s false arrest claims,
i.e. that the warrant application was facially invalid and that the defendants
engaged in judicial deception. Accordingly, we remand for a trial.
AFFIRMED in part, REVERSED in part, and REMANDED.
The parties shall bear their own costs on appeal.
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