FILED
NOT FOR PUBLICATION
OCT 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JEFFRIES, No. 16-16483
Plaintiff-Appellant, D.C. No.
2:14-cv-01862-KJD-CWH
v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM*
DEPARTMENT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted October 13, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and TROTT, Circuit Judges.
Michael Jeffries appeals the district court’s grant of summary judgment to
Las Vegas Metropolitan Police Department (“Department”) on his claims under 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the facts and procedural history of this case,
we need not recount them here. We review a district court’s decision to grant
summary judgment de novo. Weiner v. San Diego Cty., 210 F.3d 1025, 1028 (9th
Cir. 2000). We affirm.
I
The district court did not err in considering the exhibits attached to the
Department’s motion for summary judgment. On a motion for summary judgment,
a district court may consider inadmissible evidence as long as the evidence could
be presented in an admissible form at trial. Fraser v. Goodale, 342 F. 3d 1032,
1036-37 (9th Cir. 2003). Similarly, a district court’s consideration of
unauthenticated evidence on a motion for summary judgment constitutes harmless
error if a competent witness with personal knowledge could have authenticated the
evidence. Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1551 (9th Cir.
1990).
The seven exhibits attached to the Department’s motion could be
authenticated and provided in an admissible form at trial and the district court did
not err by considering the evidence. Deputy Owens authenticated Exhibits A and
C by personal knowledge through his deposition testimony. Exhibit F consisted of
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Jeffries’s interrogatory responses, and was authenticated through Jeffries’s
verification that the responses were accurate.
Although the Department did not authenticate Exhibits D, E, and G, the
district court’s consideration of those exhibits constitutes harmless error because a
competent witness with personal knowledge could authenticate the exhibits at trial.
II
The district court properly granted summary judgment to the Department on
Jeffries’s § 1983 claims because he did not establish that his Constitutional rights
were violated. To state a prima facie case under § 1983, Jeffries must show (1) the
Department acted under color of state law; and (2) deprived Jeffries of a right
secured by the United States Constitution. Karim Panahi v. L. A. Police Dep’t,
839 F.2d 621, 624 (9th Cir. 1988).
A
The Department did not violate Jeffries’s Fourth Amendment right when
officers entered his house in response to a 911 call alleging domestic violence after
the occupants refused to answer the door. The entry was justified under the
exigent circumstance exception to the Fourth Amendment. See United States v.
Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (“When the domestic violence
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victim is still in the home, circumstances may justify an entry pursuant to the
exigency doctrine.”). Nor did any other unreasonable search or seizure occur.
The Department’s decision to extend Jeffries’s probation and to not confirm
his appointment did not violate or deprive Jeffries of his Fourth Amendment right.
Jeffries was terminated not for his exercise of any such right, but for his violation
of the Department’s civil service standards.
B
The Department did not violate or deprive Jeffries of his Fifth Amendment
right against self-incrimination because that right was not implicated. Jeffries was
not compelled to answer incriminating questions or provide incriminating
testimony, and no such testimony was used against him in a criminal case. See
Chavez v. Martinez, 538 U.S. 760, 767 (2003) (“Statements compelled by police
interrogations of course may not be used against a defendant at trial . . . but it is not
until their use in a criminal case that a violation of the Self-Incrimination Clause
occurs.”). Jeffries did not answer any questions at the residence and no statements
were used against him in court. The district court properly granted summary
judgment on the claim.
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III
The district court properly granted summary judgment to the Department on
Jeffries’s Fourteenth Amendment Due Process claim. The essential due process
safeguards of notice and a hearing apply only to deprivations of liberty or property
interests protected by the Fourteenth Amendment. See Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 569-70 (1972) (“The requirements of procedural
due process apply only to the deprivation of interests encompassed by the
Fourteenth Amendment’s protection of liberty and property.”)
We need not decide whether Jeffries possessed some protected property
interest in his employment as a probationary, at will employee. Even assuming,
arguendo, that Jeffries possessed some protected property interest, the Department
afforded him sufficient procedural due process by following its procedure
applicable to probationary employees. Prior to the non-confirmation decision, the
Department provided Jeffries with notice and an informal hearing. Jeffries
attended the hearing and presented evidence of mitigating factors in his defense.
He received all the process that he was due. The district court properly granted
summary judgment on the claim.
AFFIRMED.
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FILED
Jeffries v. LVMPD, No. 16-16483
OCT 17 2017
TROTT, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Ordinarily it makes no sense to turn up the heat when the goose has already
been cooked, but this case is an exception. The civil rights claims and arguments
Jeffries and his attorney bring to us are utterly fanciful, delusional, and legally
frivolous. The district court effectively so advised Jeffries and Ms. Chapman in a
succinct and persuasive Order, but undaunted they appealed anyway.
This appeal is an waste of precious judicial resources. Jeffries has no case.
He was a probationary police officer. His step-son placed a recorded 9-1-1 call to
Jeffries’ own department reporting that his mother, Pia Zadora, is “going crazy”
and had grabbed his neck. When officers responded to the call at Jeffries’s home,
Jeffries refused to cooperate, shouting at them from inside his house to “come back
here and get me.” To quote the police report, he also said, “Why don’t you fucking
come back here and get me.” His aggressive response caused the responding
officers to call for SWAT backup. Eventually, his wife and step-son came out of
the house, but not Jeffries. Because Zadora had been placed under arrest for
“Battery Domestic Violence,” and the victim of her assault was out of danger, the
police wisely took no further action.
And what does Jeffries say about these facts? “I have very little actual
recollection of the events of June 1, 2013 due to the fact that I was extremely
intoxicated.” “I may or I may not have called out, if I did call out I do not recall
what was said.” The uncontradicted police report states that Jeffries later admitted
having “a couple of drinks at dinner” and later “consumed two bottles of red wine
once back at home.”
In Jeffries’s Opposition to Summary Judgment, counsel said, “The events of
June 1, 2013 are for the most part agreed upon without substantive material issue.”
“Due to his intoxicated state, Plaintiff cannot say what he did or did not say that
evening.”
In a Supplemental Opposition, counsel tacitly admitted Jeffries’s combative
behavior but argued that all of it was protected by the Constitution. Counsel
described her client’s allegedly constitutional behavior she attempts to justify as
follows:
The [Department’s] nonconfirmation hearing was based
only upon Mr. Jeffries conduct on June 1, 2013,
specifically: 1) shouting expletives, specifically ‘why
don’t you fucking come back here and get me’ which
caused the on scene sergeant to declare a barricade
situation and call SWAT out; 2) he made no effort to
contact police on the scene; and 3) he failed to obey
commands to exit his house and speak with officers on
the scene.
Enough.
Three judges’ chambers have carefully examined this case and found it
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seriously wanting. I write separately because it behooves counsel to learn from
this misadventure that appealing just because you can is unprofessional, as is
indiscriminately throwing fatuous civil rights claims and arguments against the
wall to see if something sticks. Worse, to suggest to a client that claims and
arguments like these have merit is beyond the pale. Under no sober reading of the
Constitution or 28 U.S.C. § 1983 could this possibly be a civil rights case.
In the final analysis, the most important thing an attorney can have is
judgment, not a word processor. The same is true of a police officer. Based on his
documented behavior as a probationary officer, to give Jeffries a badge, handcuffs,
a firearm, and the authority to arrest people would not have been the Las Vegas
Metropolitan Police Department’s finest hour.
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