George Hernandez v. Tyler Kennedy; Frank Willis; City of West Covina

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE HERNANDEZ,
Plaintiff - Appellant,
v.
TYLER KENNEDY; FRANK WILLIS;
CITY OF WEST COVINA,
Defendants - Appellees.
No. 12-55023
D.C. No. 2:10-cv-03703-JAK-
FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted October 9, 2013
Pasadena, California
Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
In his brief, Hernandez argued claims under Brady v. Maryland, 373 U.S. 83
(1963), search and seizure, intentional infliction of emotional distress, and
substantive due process, but as Hernandez conceded at oral argument, he was
FILED
DEC 10 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.

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limited by precedent to his substantive due process argument. Though the police
officer, Tyler Kennedy, omitted material information suggesting weaknesses in the
case against Hernandez and the policeman’s improper motivation (his affair with
the alleged victim) when he argued for increased bail to keep Hernandez in jail, all
charges against Hernandez were dropped by the district attorney. There was, as
Hernandez concedes, probable cause for his arrest, his undisputed violation of a
restraining order. It does not vitiate the probable cause that his on and off
girlfriend encouraged the violation.
The substantive due process argument is that the policeman relentlessly
pursued him and threw him in jail, despite knowing that he was probably innocent,
because the policeman wanted to have sex with Hernandez’s former girlfriend and
the mother of his three children. The policeman did indeed begin an affair with
Hernandez’s former girlfriend early in the investigation, and had indeed written
The Magic Triangle, a book on how to get women to consent to sex by agreeing
with whatever they say and telling whatever lies were necessary. And the
policeman had reason to suspect that the former girlfriend might be lying about
Hernandez forcibly raping her, because she had filed two false claims against
Hernandez before, she had repeatedly invited Hernandez to walk across the street
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and have sex with her, and Hernandez showed the policeman a videotape of the
two of them having consensual sexual intercourse on an earlier occasion. The
former girlfriend had left a message on Hernandez’s cell phone voice mail the very
day she alleged that he had raped her suggesting that she was miffed that he had
not responded to her request for sex.
The defect in Hernandez’s “shock the conscience,” Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998); United States v. Salerno, 481 U.S. 739, 746
(1987), substantive due process claim is that Hernandez’s evidence did not
establish that Officer Kennedy knew or should have known that he was innocent.
Though the policeman’s actions may have been motivated by a David-and-
Bathsheba intention to get Hernandez out of the way of the policeman’s sexual
relationship, the best Hernandez’s evidence established was that Kennedy should
have known that Hernandez had a strong probability of establishing a reasonable
doubt. Hernandez could have raped his former girlfriend on the occasion in
question despite their consensual sex on an earlier occasion, and despite her
rejected invitation to have sex that day. Kennedy did not (and did not have to, in
order to get him out of the way) fabricate evidence to frame a person whom he
knew or should have known to be innocent. His motivation did not wash away the
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evidence of the violation of the restraining order. See Whren v. United States, 517
U.S. 806, 811 (1996); Al-Kidd v. Ashcroft, 580 F.3d 949, 966 (9th Cir. 2009),
rev’d on other grounds, __ U.S. __, 131 S. Ct. 2074 (2011).
Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014), cannot be extended to this
case. Tatum v. Moody states its rule as follows: “We emphasize the narrowness of
the constitutional rule we enforce today, which is restricted to detentions of (1)
unusual length, (2) caused by the investigating officers’ failure to disclose highly
significant exculpatory evidence to prosecutors, and (3) due to conduct that is
culpable in that the officers understood the risks to the plaintiff’s rights from
withholding the information or were completely indifferent to those risks.” Id. at
819–20. In Tatum, the innocent man was jailed for 27 months, here for one night.
See id. at 813. And in Tatum, the evidence not disclosed to the prosecutor was
much more clearly exculpatory. Had Kennedy disclosed to the prosecutor his
sexual relationship with Hernandez’s girlfriend and the mother of his children, the
prosecutor might have declined the case because of the potential embarrassment to
the police department or his office, but that embarrassment is not the same thing as
innocence of Hernandez on the charge of violating the restraining order. The
girlfriend’s entreaties to Hernandez to violate the restraining order do not prove his
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innocence of violating it, as opposed to proving her own poor character, as would
the evidence that she had lied before to get Hernandez in trouble. By contrast, the
two police officers in Tatum lied. Id. at 809. There, there was overwhelming
evidence of actual innocence, and here there is not. The police in Tatum put a man
in jail for robberies of stores with notes demanding money, a common enough
technique for bank robberies but an unusual modus operandi for retail store
robberies. The police represented that since the arrest, “the crime spree caused by
the ‘Demand Note Robber’ has ceased.” Id. That was a false statement. The
crime spree continued while the arrestee was in jail, even with the same
misspelling repeated in one of the demand notes. Id. at 813.
Officer Kennedy’s motivation might arguably have been worse than what
motivated the police officer’s dishonesty in Tatum, but the one night detention did
not compare with the more than two years in Tatum, and the evidence Officer
Kennedy chose not to disclose, though it demonstrated the impeachability of both
himself and the purported victim, did not show that Hernandez was innocent.
As for the claim that the City of West Covina should have fired Kennedy or
at least removed him as a sex crimes specialist because of his book, The Magic
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Triangle, on how to get sex by any means necessary, the book did not say Kennedy
was a police officer or suggest abuse of police power. Though the police chief had
looked at the book when it was brought to his attention by Commander Marc
Taylor, he established by thumbing through the book that it was Kennedy’s off
duty personal writing project, and said nothing to establish that Kennedy was a
police officer or would abuse his police authority. What the police chief had
before him amounted to an offensive book written by an officer off duty, that did
not cast a bad light on the police department or imply that the author would abuse
his police authority. Hernandez offered no evidence establishing municipal
“policies or customs,” Henry v. Cnty. of Shasta, 132 F.3d 512, 517 (9th Cir. 1997),
that would allow policemen to throw people in jail on weak charges in order to
have sex with their girlfriends.
This case is troubling, but we are unable to conclude that Hernandez
established a genuine issue of material fact for a substantive due process claim.
See Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008) (affirming judgment on the
pleadings for police officer who struck vehicle during high speed chase of another
vehicle); Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (affirming summary
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judgment for investigators where improper interview techniques elicited false
statements about father sexual abusing children).
AFFIRMED.
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