Stephen Tillotson v. Bonnie Dumanis, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN TILLOTSON,
Plaintiff - Appellant,
v.
BONNIE DUMANIS, individually and in
her official capacity as District Attorney
for the County of San Diego and
COUNTY OF SAN DIEGO, a municipal
corporation,
Defendants - Appellees.
No. 12-55580
D.C. No. 3:10-cv-01343-WQH-
MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted December 4, 2013
Pasadena, California
Before: PREGERSON and CHRISTEN, Circuit Judges, and SILVER, Senior
District Judge.**
FILED
APR 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.

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Stephen Tillotson appeals the district court’s order granting summary
judgment in favor of Bonnie Dumanis and the County of San Diego.1 We affirm.
At oral argument, Tillotson’s counsel conceded the only claim presented in
this appeal is Tillotson’s claim based on the alleged denial of his right to
procedural due process.2 “We analyze a procedural due process claim in two steps.
[T]he first asks whether there exists a liberty or property interest which has been
interfered with by the State; the second examines whether the procedures attendant
upon that deprivation were constitutionally sufficient.” United States v. Juvenile
Male, 670 F.3d 999, 1013 (9th Cir. 2012) (internal quotation marks and citations
omitted).
On the first step, “it is well-recognized that the pursuit of an occupation or
profession is a protected liberty interest that extends across a broad range of lawful
occupations.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 65 n.4
(9th Cir. 1994). But “the precise contours of that liberty interest remain largely
undefined.” Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999). Existing
1 Because the parties are familiar with the facts and procedural history, we
do not recount them here.
2 Also at oral argument, the Court requested supplemental briefing from
Defendants to explain the delay in placing Tillotson on the Brady Index.
Defendants submitted the supplemental brief and the Court has considered it.
2

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authority demands a showing of interference that approaches a “complete
prohibition of the right to engage in a calling.” Conn v. Gabbert, 526 U.S. 286,
292 (1999); see also Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003).
At summary judgment, Tillotson did not point to evidence in the record
establishing his placement on the Brady Index (“Index”) resulted in something
close to a complete prohibition of his right to pursue his chosen profession. The
record established Tillotson applied for, and was rejected from, a number of law
enforcement positions in Southern California prior to his placement on the Index.
And Tillotson pointed to only four positions he applied for but did not receive after
his placement on the Index. Evidence of four rejections “fall[s] far short of
[establishing] a complete prohibition” on Tillotson obtaining employment as a
police officer. Lowry, 329 F.3d at 1023. Thus, Tillotson’s procedural due process
claim does not survive the first step of the analysis.
Even if Tillotson had established deprivation of a protected liberty interest,
summary judgment was still appropriate based on the second step of the procedural
due process analysis. That step requires we determine “whether the procedures
attendant upon [the] deprivation were constitutionally sufficient.” Juvenile Male,
670 F.3d at 1013. We evaluate the process provided to Tillotson under the test set
forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). That test “instructs us to
3

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balance (1) the private interest affected by the official action; (2) the risk of
erroneous deprivation and the probable value of additional procedural safeguards;
and (3) the governmental interest, including the fiscal and administrative burdens
of additional procedures.” Humphries v. Cnty. of Los Angeles, 554 F.3d 1170,
1193 (9th Cir. 2009) (reversed on other grounds by Los Angeles Cnty. v.
Humphries, 131 S. Ct. 447 (2010)).
On the first factor, Tillotson’s interest in pursuing his chosen profession is
significant but not unlimited. See Conn, 526 U.S. at 291-92 (holding “due process
right to choose one’s field of private employment” is a “right which is . . . subject
to reasonable government regulation”). On the third factor, Defendants have a
strong interest in fulfilling their Brady obligations. See, e.g., Amado v. Gonzalez,
734 F.3d 936, 948 (9th Cir. 2013) (noting “prosecutors are constitutionally
obligated to disclose” Brady material). And on the second and “perhaps most
important, Mathews factor,” Tillotson did not present evidence of repeated errors
regarding placement on the Index or evidence of a special need for additional
safeguards. Humphries, 554 F.3d at 1194. Tillotson never presented an argument
to the County challenging the committee’s decision to include his name on the
Index. Because Tillotson did not take advantage of the limited process available to
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him, even viewing the evidence in the light most favorable to him, Tillotson cannot
establish that the process provided by Defendants were inadequate.
AFFIRMED.
5

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Tillotson v. Dumanis, No. 12-55580
PREGERSON, Circuit Judge, dissenting:
During his four years of public service with the San Diego County Sheriff’s
Department, Deputy Sheriff Stephen Tillotson received multiple commendations,
stellar reports, and a promotion to Field Training Officer. But in June of 1998,
Deputy Tillotson made a big mistake: he told his supervisor that he had
participated in a monthly firearm qualification exercise—when he had not. The
next day, Deputy Tillotson went to his supervisor and told him that, in fact, he
missed taking the monthly firearm exercise, and apologized for the error of his
ways. But despite his years of commendable public service to the Department as a
Deputy Sheriff, Tillotson was sacked for this single lapse of judgment.
In 2000, after fully disclosing his earlier act of untruthfulness, Tillotson was
hired by the Sycuan Tribal Police Department. Here again his performance record
was exemplary.
In 2006, Officer Tillotson, while employed by the Sycuan Tribal Police,
applied for a Special Law Enforcement Commission from the U.S. Bureau of
Indian Affairs. Officer Tillotson, along with the Chief of the Sycuan Tribal Police,
met separately with San Diego County Deputy DA Mike Still, Liaison to the
Sycuan Tribal Police, to find out whether Officer Tillotson’s earlier act of
dishonesty and termination caused his name to be placed on San Diego County’s
FILED
APR 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Brady index. Deputy DA Still said he “did not feel that [Tillotson] should be
placed on the Brady index, given the circumstances of [his] case.” Officer
Tillotson then received his commission.
Officer Tillotson, always looking for ways to serve his community, applied
to work as a Volunteer Reserve Police Officer with the Coronado Police
Department in 2008. He again disclosed his prior mistake and termination. The
Coronado Police Department contacted the San Diego DA’s Office. It was only
then—ten years after the initial incident, after exemplary work, and after being told
by Deputy DA Still that he “did not feel that [Tillotson] should be placed on the
Brady index, given the circumstances of [his] case”—that Officer Tillotson found
himself ensnared in the Brady index.
Now that he is in the Brady index, Tillotson has effectively been blacklisted
from police work. The Sycuan Tribal Police let him go. Coronado, Oceanside,
and Riverside have turned him down for a job as a police officer.
For fourteen years, Stephen Tillotson was a good police officer, and a
valuable member of the departments in which he served. But because of one
transgression, he is precluded from doing the job he loves. There should be a way
to remove his name from the Brady index and let him get back to work serving our
neighborhoods as a good cop.

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