Demetrius Harvey v. City of Oakland;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMETRIUS HARVEY,
Plaintiff - Appellant,
v.
CITY OF OAKLAND; et al.,
Defendants - Appellees.
No. 08-17620
D.C. No. 4:07-cv-01681-SBA
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: HALL, NOONAN, and THOMAS, Circuit Judges.
Demetrius Harvey filed this lawsuit against the City of Oakland, Oakland
Police Department, and eight individual police officers based upon his arrest and
detention in connection with the vandalism of two Oakland liquor stores. Harvey
seeks relief under § 1983 for Fourth Amendment violations and under California
FILED
MAY 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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tort law for false arrest, negligence, and negligent infliction of emotional distress.
The district court granted defendants summary judgment on all claims. Harvey
timely appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
In analyzing Harvey’s § 1983 claims we must determine whether (a) the
facts that the plaintiff has alleged make out a constitutional violation, and (b) if so,
whether the constitutional right at issue was clearly established at the time of the
violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). We are “permitted to
exercise [our] sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 818
(2009). Because we conclude that defendants did not violate a clearly established
right—and are therefore entitled to qualified immunity—we need not address
whether Harvey has sufficiently demonstrated a Fourth Amendment violation.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “In the context
of a police officer obtaining a warrant, immunity will be lost only where the
warrant application is so lacking in indicia of probable cause as to render official

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belief in the existence unreasonable.” Mill v. Graves, 930 F.2d 729, 731 (9th Cir.
1991). If reasonable minds could differ as to the existence of probable cause, a
magistrate’s determination that there was probable cause usually establishes that an
officer’s belief was objectively reasonable. KRL v. Estate of Moore, 512 F.3d
1184, 1189 (9th Cir. 2008). “It is inevitable that law enforcement officials will in
some cases reasonably but mistakenly conclude that probable cause is present . . .
In such cases those officials should not be held personally liable.” Rodis v. County
of San Francisco, 558 F.3d 964, 970-71 (9th Cir. 2009).
We agree with the district court that defendant Sgt. Arotzarena is entitled to
qualified immunity because he could have reasonably believed in light of all the
circumstances that his conduct did not violate the Constitution. Sgt. Arotzarena
based his probable cause determination largely on the tip of a confidential
informant, CI-21. When considering whether an informant’s tip is sufficient to
support probable cause, we employ a “totality of the circumstances” test, taking
into account the informant’s veracity or reliability, and his or her basis of
knowledge. Illinois v. Gates, 462 U.S. 213, 238 (1983). The affidavit in support
of Harvey’s arrest warrant stated that Sgt. Arotzarena personally met with CI-21,
who identified Harvey and several other individuals from a surveillance video and
also from a lineup of DMV photos. See United States v. Rowland, 464 F.3d 899,

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908 (9th Cir. 2006) (“[A]n agent's face to face encounter with an informant may
bolster an informant’s reliability because officers may perceive and evaluate
personally an informant’s mannerisms, expressions and tone of voice and because
the informant knows that he may be tracked down and held accountable for false
assertions.”). Additionally, eyewitnesses from the San Pablo Market and the
mother of one of the suspects corroborated some of these identifications and did
not contradict any of them. United States v. Angulo-Lopez, 791 F.2d 1394, 1397
(9th Cir. 1986) (“Because an informant is right about some things, he is probably
right about other facts.”). The magistrate judge found these facts sufficient to
support a warrant for Harvey’s arrest.
The record indicates that Sgt. Arotzarena omitted from his affidavit (1) that
the surveillance video was blurry and (2) that CI-21 initially identified a different
man as Harvey/Asad Bey before correcting himself. Had this information been
included, it may have weakened Sgt. Arotzarena’s support for probable cause.
However, Sgt. Arotzarena’s notes indicate that he also omitted the following facts
that would have strengthened his argument for probable cause: (1) the intelligence
unit of the Oakland Police Department confirmed that Harvey and the other
suspects were associated with Your Black Muslim Bakery; (2) CI-21 told Sgt.
Arotzarena that he formerly worked at the Bakery and was familiar with Harvey

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and other associates of the Bakery; and (3) CI-21 identified Harvey by age, height,
weight and distinguishing characteristics.
The totality of the circumstances known to Sgt. Arotzarena when he sought
an arrest warrant provided a reasonable basis for believing that CI-21 was truthful
and had a substantial familiarity with Harvey and the other individuals he
identified. The information included in Sgt. Arotzarena’s affidavit gave rise to at
least disputable probable cause, and “we cannot say that a magistrate would not
have issued the warrant if he had been told all that [Sgt. Arotzarena] knew about
the informants.” Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir.
1997).
Sgt. Arotzarena also could reasonably believe that it was lawful to detain
Harvey from December 27, 2005 (the date of his arrest) until January 3, 2006 (the
date of his arraignment), despite Harvey’s presentation of an alibi. Assuming that
probable cause supported Harvey’s initial arrest and detention, Sgt. Arotzarena was
under no affirmative duty to further investigate Harvey’s involvement in the
incidents. Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (“Given the
requirements that arrest be made only on probable cause and that one detained be
accorded a speedy trial, we do not think a sheriff executing an arrest warrant is
required by the Constitution to investigate independently every claim of innocence,

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1These photo lineups were not unduly suggestive because only Harvey and
one other individual were light-skinned African American men. We have held that
minor ethnic variations between a suspect and other individuals in a photo lineup
do not render a lineup constitutionally infirm. See, e.g., United States. v. Portillo,
633 F.2d 1313, 1324 (9th Cir. 1980); see also United States v. Nash, 946 F.2d 679,
681 (9th Cir. 1991).
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whether the claim is based on mistaken identity or a defense such as lack of
requisite intent.”). Nevertheless, Sgt. Arotzarena did investigate Harvey’s
involvement after he was detained. He showed four eyewitnesses to the crimes the
surveillance video of the San Pablo Market and a six-pack photo lineup, and two of
the witnesses positively identified Harvey.1 One of the witnesses specifically
stated that Harvey was the individual who had held him up behind the counter.
Although two of the witnesses did not identify Harvey, the post-detention
investigations did not overwhelmingly demonstrate Harvey’s innocence and
provided some additional bases for believing he was involved in vandalizing the
two Oakland liquor stores. Summary judgment in favor of Sgt. Arotzarena
therefore was proper.
The district court properly granted summary judgment to former Oakland
Police Chief Wayne Tucker, Deputy Chief Howard Jordan, Lt. Gier, Lt. Whitman
and Officer J. Morris. Harvey has not set forth evidence that any of the individual
defendants besides Sgt. Arotzarena were personally involved with the alleged

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unlawful conduct or that they could be held liable in a supervisory capacity.
al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009).
The district court also properly granted summary judgment to the City of
Oakland. Harvey has not shown that the City’s failure to adequately train its
employees amounted to a custom or policy giving rise to § 1983 liability. First,
defendants have produced an officer training manual that explicitly instructs
officers to “describe in details the facts showing probable cause for issuance of a
Warrant.” Second, even if the City does not have training materials specifically
stating that officers should include information that undermines probable cause,
there is no showing that Sgt. Arotzarena omitted any information because of a
citywide custom or policy of leaving out such information. Harvey has not shown
that any constitutional violation he suffered can be attributed to an official policy
or custom of the City of Oakland. Lee v. City of Los Angeles, 250 F.3d 668, 681
(9th Cir. 2001).
For similar reasons that we affirm the district court’s grant of summary
judgment to defendants on Harvey’s § 1983 claims, we affirm the grant of
summary judgment to defendants on Harvey’s state law claims. O’Toole v.
Superior Court, 44 Cal. Rptr. 3d 531, 549-50 (Cal. Ct. App. 2006) (explaining that
officers are not liable for false arrest or false imprisonment under California law if

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the officer “had reasonable cause to believe the arrest was lawful” (quoting Cal.
Penal. Code § 847)).
AFFIRMED.

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Harvey v. City of Oakland, No. 08-17620
NOONAN, Circuit Judge, dissenting:
We measure Dominique Arotzarena’s liability by what he provided the
magistrate who issued the arrest warrant for Harvey. See United States v. Gourde,
440 F.3d 1065, 1067 (9th Cir. ) (en banc).
The foundation of the identification of suspects was a surveillance camera in
the San Pablo Liquor Market. Arotzarena omitted the fact that the compact disc
recording from the surveillance camera was not functioning at the time of the CI’s
interview. The recording, however, had been posted on the internet by a news
broadcaster. Arotzarena did not note that the CI viewed the lower-quality internet
version of the recording; that the film was blurry; or that the color resolution was
low.
Arotzarena’s affidavit declares: “On November 25, 2005, I met with a
confidential informant. This CI had independent knowledge of this group.” The
immediate referent of “this group” is given in the preceding paragraph of the
affidavit as the group of men who had entered the San Pablo Market. The affidavit
provides no information as to how the CI had independent knowledge of “this
group.”
Arotzarena’s affidavit goes on: “Through the video he [the CI] was able to
FILED
MAY 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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identify five people. He positively identified a person known to him as ‘Jamal
Bey,’ ‘Asad Bey’ and ‘Yusuf Bey.’ He was also able to identify a light skin male
black, maybe half Asian. He also identified an elderly male black.”
The CI was then shown DMV photos and he matched them to the persons he
had named in the video. And Asad Bey was said to be Demetrius Harvey.
Nothing more appears in the affidavit as to Harvey.
The affidavit told the magistrate that a confidential informant had
“positively” identified Harvey as a participant in the crime. The credentials of the
CI were not given. No reason was provided as to how the CI should have
particular information about “this group,” i.e., those men who had invaded the San
Pablo Market. No information was provided to the magistrate as to the quality of
the film, the CI”s first misidentification of Harvey, and the limited profile of
“Harvey” captured on the film. The magistrate, instead, was informed by
Arotzarena’s affidavit that the identification of Harvey was as positive as that made
by the CI of four other men. A reasonable factfinder would be justified in finding
that these facts constitute a reckless disregard for the truth. See Butler v. Elle, 281
F.3d 1014, 1026 (9th Cir. 2002).
Whether Arotzarena’s misrepresentations were material to the determination
of probable cause is a question for the court. Arotzarena’s statement that the CI

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had “independent knowledge of this group” was a material misrepresentation.
Nothing in the affidavit, nothing in Arotzarena’s “Case Notes” shows that the CI
had knowledge of “this group.” Although it is not mentioned in the affidavit, it
was known to the police that the CI worked at Your Black Muslim Bakery and
must therefore have known some men of the sixty who worked there. That
knowledge did not translate into knowledge of the group of invaders of the liquor
store.
Arotzarena’s affidavit contained a second material misrepresentation: that
the CI had “positively” identified each of the suspects, as though the same
identification were made of each. Three of the men faced the camera. Their faces
could be positively identified. “Harvey” was turned from the camera. The
identification was half a guess. This guess followed the CI’s first mistaken
identification of a person with a very different appearance.
The police knew that the invaders worked at Your Black Muslim Bakery. It
was tempting for Arotzarena to guess that the CI, who had worked there, knew the
men he identified, but the guess had no foundation. It was also important to the
police to net as many members of the mob as they could. Excepting these material
misrepresentations, probable cause was absent for the arrest of Harvey. See Crowe
v. County of San Diego, 593 F.3d 841, 870 (9th Cir. 2010).

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It’s a jury question whether in these circumstances Arotzarena acted
reasonably or recklessly when he made the two misrepresentations to the
magistrate, who was led to authorize the arrest of an innocent man. See Butler, 281
F.3d at 1024.
The damages Harvey might be awarded may not be great. Principle is what
is at stake. Often the Fourth Amendment is invoked in criminal cases as a shield
by those caught in criminal activity where overzealous law enforcement has
overstepped a constitutional boundary. Here, the Fourth Amendment is invoked by
innocence. The Constitution is the source of a vital right, whose vindication is no
small victory for democratic government.

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