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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
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http://laws.findlaw.com/9th/9855752.html
MURRAY WEINER, No. 98-55752 Plaintiff-Appellant, D.C. No. v. CV-97-00349-MLH SAN DIEGO COUNTY, OPINION Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
December 9, 1999--Pasadena, California
Filed April 27, 2000
Before: Betty B. Fletcher, Alex Kozinski and
David R. Thompson, Circuit Judges.
Opinion by Judge Thompson
_________________________________________________________________
COUNSEL
Thomas R. Laube, Sandler, Lasry, Laube, Byer & Valdez,
San Diego, California, for the plaintiff-appellant.
Deborah Peterson, Deputy County Counsel, San Diego, Cali-
fornia, for the defendant-appellee.
_________________________________________________________________
OPINION
THOMPSON, Circuit Judge:
OVERVIEW
In 1994, the Appellant Murray Weiner was tried and con-
victed of murder in California state court. He was granted a
new trial. Before the retrial, the district attorney's office for
San Diego County (the "County") allegedly hid blood evi-
dence from Weiner's defense team. In addition, a new blood
test undermined the prosecution's original theory of the case.
The district attorney's office, nonetheless, continued with the
second trial. The trial was before a jury and Weiner was
acquitted. After Weiner's acquittal, the district attorney,
responding to a query from the press, stated that"[t]his case
just proves that cases, unlike fine wine, get worse rather than
better, with age."
Weiner then filed the present action in the federal district
court against the County. He sought damages under 42 U.S.C.
S 1983 for what he alleged was a wrongful prosecution and
defamation in violation of his civil rights. He also sought
damages for defamation under state law. The district court
granted the County's motion for summary judgment. Weiner
appeals that judgment.
We have jurisdiction under 28 U.S.C. S 1291. We conclude
that the district attorney acted on behalf of the state, not the
County, in deciding to prosecute Weiner, and as a result
Weiner's S 1983 claim against the County for his alleged
wrongful prosecution fails. With regard to the defamation
claims, the alleged defamatory statement -- that implied
Weiner was acquitted only because the case against him
became stale -- was the expression of an opinion and as such
it will not support a defamation action under California law.
Insofar as Weiner attempted to predicate a S 1983 claim on
the allegedly defamatory statement, that claim fails because
Weiner made no showing of a violation of the Constitution or
federal law. See Leer v. Murphy, 844 F.2d 628, 632-33 (9th
Cir. 1988). Accordingly, we affirm the district court.
BACKGROUND
In November 1992, Weiner was arrested and charged with
the murder of Robert Evans. At trial, the prosecution theo-
rized that Weiner lured Evans into a shed rented by Weiner,
killed him, cut his body into pieces, and disposed of the
pieces in a field a few miles away.
The prosecution, in its case-in-chief, relied on four of
thirty-nine blood spots found in Weiner's shed. The prosecu-
tion tested three of the four blood spots by blood grouping, a
test which cannot conclusively determine whether the tested
blood comes from a particular individual. The test revealed
that the three spots had the same 1.1, 1.1 characteristic as
Evans's blood. The prosecution tested the fourth blood spot
using an RFLP test, which, unlike the blood grouping test, can
determine whether blood comes from a particular individual.
The RFLP test determined that the fourth blood spot was not
from Evans. The prosecution chose not to test the fourth spot
for blood grouping to determine whether it had the same 1.1,
1.1 characteristic as the other three blood spots.
Because only two to four percent of the population has the
1.1, 1.1 characteristic, Weiner asserted that if all four blood
spots had that characteristic, then all four were probably from
the same person, which the RFLP test on the fourth blood spot
had determined was not Evans. Although it had not conducted
a blood grouping test on the fourth spot, the prosecution
argued at trial that the fourth blood spot was not from the
same individual as the other three. On February 16, 1994,
Weiner was found guilty of murdering Evans.
The trial court, however, granted Weiner a new trial.
Weiner asserts that before the second trial the prosecution
hired a blood spatter expert who concluded that all four blood
spots were from the same person. Further, Weiner contends
the prosecution attempted to hide this expert from him and hid
the fourth blood spot to prevent Weiner from testing it for the
1.1, 1.1 characteristic. The fourth blood spot was eventually
tested and was found to have the same 1.1, 1.1 characteristic
as the other three. Because the fourth blood spot came from
someone other than Evans, this meant the other three spots
probably also came from someone other than Evans and left
the prosecutor without blood evidence that Evans was ever in
Weiner's shed.
Despite these new findings, the district attorney decided to
go forward with the second trial. On August 15, 1996, a jury
in the second trial found Weiner not guilty of Evans's murder.
After the verdict, a reporter interviewed Weiner's defense
counsel, Kathleen Coyne, who expressed her frustration with
the district attorney's office because it had ignored the new
scientific evidence and had gone ahead with the second trial.
The reporter's article went on to state that:
District Attorney Paul Pfingst vehemently disagreed
with Coyne's evaluation of the genetic evidence. He
said the case was essentially the same as the first
trial and that to dismiss the charges would have been
ridiculous, given the first jury's verdict. "This just
proves that cases, unlike fine wine, get worse rather
than better, with age," Pfingst said.
On February 28, 1997, Weiner filed the present action
against the County seeking damages under 42 U.S.C.S 1983
for wrongful prosecution, and for defamation caused by
Pfingst's statement to the press. Weiner also sought damages
for defamation under California law. The district court
granted summary judgment in favor of the County on all
claims, and this appeal followed.
ANALYSIS
I. Standard of Review
We review de novo a district court's decision to grant sum-
mary judgment. See Underwager v. Channel 9 Australia, 69
F.3d 361, 365 (9th Cir. 1995).
II. Section 1983 Liability for Wrongful Prosecution
[1] Pursuant to 42 U.S.C. S 1983, a local government may
be liable for constitutional torts committed by its officials
according to municipal policy, practice, or custom. See
Monell v. Department of Social Servs., 436 U.S. 658, 690-91
(1978). To hold a local government liable for an official's
conduct, a plaintiff must first establish that the official (1) had
final policymaking authority "concerning the action alleged to
have caused the particular constitutional or statutory violation
at issue" and (2) was the policymaker for the local governing
body for the purposes of the particular act. McMillian v. Mon-
roe County Alabama, 520 U.S. 781, 785 (1997) (internal quo-
tation marks omitted) (noting that an official can be the
policymaker for the state for one type of act and the policy-
maker for the local government for another type of act). In
this case, the parties concede the district attorney is the final
decision-maker in determining whether to proceed with a
criminal prosecution. The question, therefore, is whether the
district attorney acted as a county official or as a state official
when he decided to proceed with Weiner's criminal prosecu-
tion. The answer to that question is dependent on state law.
See id. at 786.
[2] In McMillian, the Court stated that a state's statement
that an individual is a state or county official without analyz-
ing his actual role does not settle the question for Section
1983 purposes. Rather, the official's "actual function . . . in
a particular area," as defined by state law, must be evaluated
to determine whether he acts for the state or the county. Id.
Accordingly, the Court in McMillian reviewed Alabama's
constitution, statutes, and case law to determine whether a
county sheriff was a state or county official for purposes of
S 1983 liability. See id. at 787-93. The Court found it signifi-
cant that Alabama amended its constitution to list county
sheriffs as executive officers who could be impeached by the
State Supreme Court upon the order of the governor, which
was the same procedure used for other state officials. See id.
at 788. Further, the Court stated it was critical that the Ala-
bama Supreme Court had similarly interpreted Alabama's
constitution as prohibiting county liability predicated upon the
doctrine of respondeat superior. See id. at 789. The Court
also focused on the fact that sheriffs in Alabama were given
complete authority to enforce state criminal laws in the
county and that county commissions could not instruct them
in these duties.
On balance, the Court determined that, under Alabama law,
a county sheriff was a state official when carrying out his law
enforcement duties even though the county paid his salary and
provided his equipment, the county's citizens elected him, the
Alabama code listed him as a county official, and his jurisdic-
tion was limited to the county's borders. See id. at 791-93.
[3] In Pitts v. County of Kern, 949 P.2d 920 (Cal. 1998),
the California Supreme Court, following McMillian, analyzed
California law and held that a district attorney was a state
official for purposes of S 1983 liability while acting in his
prosecutorial capacity. See id. at 928-34. The California
Supreme Court is the ultimate interpreter of California state
law. See Johnson v. Fankell, 520 U.S. 911, 916 (1997). This
does not mean, however, that we must blindly accept its bal-
ancing of the different provisions of state law in determining
liability under S 1983. In McMillian, the Court stated that
"our inquiry is dependent on an analysis of state law," which
does not mean "that state law can answer the question for us
by, for example, simply labeling as a state official an official
who clearly makes county policy. But our understanding of
the actual function of a governmental official, in a particular
area, will necessarily be dependent on the definition of the
official's function under relevant state law." McMillian, 520
U.S. at 785 (emphasis added). We must, therefore, examine
California's constitution, statutes, and case law.
Article XI, section 1(b) of California's constitution, entitled
"Counties; subdivisions of state; formation, consolidation and
boundary change; removal of county seat; powers; officers
and employees" states that the state legislature "shall provide
for county powers, an elected county sheriff, an elected dis-
trict attorney, an elected assessor, and an elected governing
body in each county." District attorneys were added to the list
in a 1986 Amendment. See Cal. Const. art. XI, S1(b), histori-
cal notes.
Article V, section 13 of California's constitution states that
the Attorney General has
direct supervision over every district attorney . . . in
all matters pertaining to the duties of the respective
offices, and may require any of said officers to make
reports concerning the investigation, detection, pros-
ecution, and punishment of crime in their respective
jurisdictions . . . . Whenever in the opinion of the
Attorney General any law of the State is not being
adequately enforced in any county, it shall be the
duty of the Attorney General to prosecute any viola-
tions of law of which the superior court shall have
jurisdiction, and in such cases the Attorney General
shall have all the powers of a district attorney. When
required by the public interest or directed by the
Governor, the Attorney General shall assist any dis-
trict attorney in the discharge of the duties of that
office.
Turning to California's statutory law, there are provisions
that weigh both for and against concluding that the district
attorney is a state officer. Those provisions indicating that dis-
trict attorneys are state officers provide that (1) all suits are
to be conducted under the name of the state of California, see
Cal. Gov't Code S 100(b); (2) any county authority to review
a district attorney's conduct "shall not be construed to affect
the independent and constitutionally and statutorily desig-
nated investigative and prosecutorial functions of the sheriff
and district attorney of a county. The board of supervisors
shall not . . . obstruct the investigative and prosecutorial func-
tion of the district attorney of a county," Cal. Gov't Code
S 25303; (3) the "Attorney General has direct supervision
over the district attorneys of the several counties of the State
and may require of them written reports as to the condition of
public business entrusted in their charge" and may assist the
district attorney or take full charge of any investigation or
prosecution, Cal. Gov't Code S 12550; and (4) the Attorney
General can "call into conference the district attorneys . . . for
the purpose of discussing the duties of their office[ ], with the
view of uniform and adequate enforcement of" state laws,
Cal. Gov't Code S 12524.
On the other hand, there are California statutory provisions
that weigh in favor of concluding that district attorneys are
county officers: (1) district attorneys are listed as county offi-
cers, see Cal. Gov't Code S 24000(a); (2) counties set district
attorneys' salaries, see Cal. Gov't CodeS 25300; (3) district
attorneys must be registered to vote in their respective coun-
ties, see Cal. Gov't Code S 24001; (4) counties supervise the
district attorneys' conduct and use of public funds, see Cal.
Gov't Code S 25303; and (5) district attorneys can be
removed from office following the same procedures as
applied to district, county, and city officers, i.e., a grand jury
submitting a written accusation to the state court, see Cal.
Gov't Code SS 3060 & 3073.
[4] Balancing the foregoing constitutional and statutory
factors leads us toward the conclusion that under California
law a county district attorney acts as a state official when
deciding whether to prosecute an individual. The fact that
California statutory law lists district attorneys as county offi-
cers is not dispositive because, as discussed in McMillian, the
function of the district attorney, including who can control the
district attorney's conduct is the issue. See McMillian, 520
U.S. at 792 n.7 (giving little weight to fact that the Alabama
code listed sheriffs as county officers because the state court
had held that the constitution made sheriffs executive offi-
cers). Further, in McMillian, the Court acknowledged the rele-
vance of the requirements that sheriffs be elected locally and
live and vote in the county, but found that these factors were
not controlling. See id. at 791-92. Moreover, while California
statutory law gives a county some authority to oversee a dis-
trict attorney's conduct, it expressly excludes conduct related
to the investigation and prosecution of crimes, giving that
authority instead to the Attorney General. See Cal. Gov't
Code SS 26303 & 12550. Therefore, the only significant dif-
ferences between California law applicable in this case and
Alabama law applicable in McMillian are that under Califor-
nia law the county sets the district attorney's salary and the
district attorney can be removed from office in a fashion simi-
lar to other county employees. These differences are not suffi-
cient to produce a result in this case different from the result
in McMillian.
With regard to a California county's ability to set a district
attorney's salary, the California Supreme Court stated in Pitts,
that this " `does not translate into control over him . . . .' "
Pitts, 949 P.2d at 934, (quoting McMillian , 520 U.S. at 791).
In addition, although California Government Code section
25303 authorizes a county through its Board of Supervisors to
"supervise the district attorney's official conduct and in par-
ticular his or her use of public funds," that section precludes
a county from obstructing "the investigative and prosecutorial
function of the district attorney of a county." Id. (quoting Cal.
Gov't Code S 25303).
With regard to the fact that district attorneys in California
can be removed from office in the same fashion as other
county officers, this does not mean they are within the control
of the county. The removal process authorizes a county grand
jury to vote to remove a district attorney from office, but
requires the appointment by the state court of a prosecutor to
"conduct the proceedings." Cal. Gov't CodeS 3073.
[5] In addition to California's constitutional and statutory
law, we also consider its case law, giving due respect to deci-
sions by the California Supreme Court as the ultimate inter-
preter of California state law. See Johnson, 520 U.S. at 916.
All relevant California cases, including Pitts , have held that
district attorneys are state officers for the purpose of investi-
gating and proceeding with criminal prosecutions. In 1894,
the California Supreme Court held that the district attorney is
"the law officer of the county and the public prosecutor" and
that "[w]hile, in the former capacity, he represents the county,
and is largely subordinate to and under the control of the
board of supervisors, he is not so in the latter. In the prosecu-
tion of criminal cases he acts by the authority and in the name
of the people of the state." Modoc County v. Spencer, 37 P.
483, 484 (Cal. 1894); see also Graham v. Municipal Court,
177 Cal. Rptr. 172, 174 (Ct. App. 1981) ("A county district
attorney prosecuting a criminal action within a county, acts as
a state officer exercising ultimately powers which may not be
abridged by a county board of supervisors.").
We conclude that a California district attorney is a state
officer when deciding whether to prosecute an individual. A
conclusion to the contrary is not compelled by Gobel v. Mari-
copa County, 867 F.2d 1201 (9th Cir. 1989). There, we held
that a plaintiff might establish that an Arizona district attorney
is a county officer when pursuing a criminal prosecution.
Gobel, however, was decided before the Supreme Court
issued its opinion in McMillian. In deciding Gobel, we relied
on several aspects of Arizona law that the Supreme Court in
McMillian discounted. In particular, in Gobel we noted that
Arizona's constitution labeled the district attorney as a county
officer, the district attorney was elected by county voters, his
budget was set by the county board, and his jurisdiction was
limited to the county's borders. See id. at 1209. In McMillian,
however, the Court held that the fact that the sheriff was
elected by the county's citizens and his authority was limited
to the county's borders was insufficient to establish that the
sheriff was a state officer. See McMillian, 520 U.S. at 791.
Further, the Court rejected the idea that simply labeling an
officer as a state or county officer resolves the issue, see id.
at 786. The Court also stated that the power to set an officer's
salary "does not translate into control over him . . . ." Id.
[6] Although a California district attorney is a state officer
when deciding whether to prosecute an individual, this is not
to say that district attorneys in California are state officers for
all purposes. To the contrary, California law suggests that a
district attorney is a county officer for some purposes. See
Modoc County, 37 P.2d at 484 (acknowledging that in certain
instances a district attorney in California is a county officer).
In the present case, however, the San Diego County district
attorney was acting as a state official in deciding to proceed
with Weiner's criminal prosecution. Weiner's S 1983 claim
against the County, therefore, fails. The County was not the
actor; the state was.
III. State Law Defamation
[7] The First Amendment limits "the types of speech that
may give rise to a defamation action under state law." Gil-
brook v. City of Westminster, 177 F.3d 839, 861 (9th Cir.
1999), cert. denied, 120 S. Ct. 614, 68 U.S.L.W. 3178 (U.S.
Dec. 13, 1999) (No. 99-465). Opinions, that is "statements
that cannot reasonably be interpreted as stating actual facts,"
are protected by the First Amendment and, as a result, cannot
be the basis of a state-law defamation claim. Id. (internal quo-
tation marks omitted). In determining whether a statement is
a statement of opinion or of fact, we look to the "totality of
the circumstances in which [the statement] was made" includ-
ing (1) the broad context of the statement, (2) the specific
context and content of the statement, and (3) "whether the
statement itself is sufficiently factual to be susceptible of
being proved true or false." Underwager, 69 F.3d at 366.
In Underwager, the plaintiff and defendant were experts on
child witness reliability and had testified on opposite sides of
a well-publicized case. After the completion of the case, the
defendant conducted a workshop during which he expressed
his disagreement with the plaintiff's opinions. He also played
a tape of other individuals who similarly disagreed with the
plaintiff. We held that because the plaintiff and defendant had
clearly opposite views on the issue of child witness reliability,
"the general context and tenor of [the defendant's] workshop
make clear that the comments about [the plaintiff ] by him and
by those who spoke on the tape were expressions of the
speakers' professional points of view (opinions) rather than
factual assertions." Id. at 366-67.
[8] In the present case, the broad context of District Attor-
ney Pfingst's fine wine statement was in response to Coyne's
assertion that the district attorney's office should not have
proceeded with Weiner's case. Considering Coyne's role as a
defense attorney and Pfingst's as the District Attorney, it is
not surprising that each would have different views as to why
Weiner was acquitted in the second trial. The broad context
of the statement, therefore, weighs in favor of concluding that
Pfingst's statement was one of opinion, not fact.
[9] In examining the specific context and content of a state-
ment, we consider "the extent of the figurative or hyperbolic
language used and the reasonable expectations of the audience
in that particular situation." Id. at 366. Pfingst's analogy of
Weiner's case to fine wine was figurative language used to
explain why he believed Weiner was acquitted. Pfingst's
audience would likely view his statement as an attempt to
explain that it was not because the prosecution did a bad job
that the case was lost. Pfingst, after all, was an elected public
official who one would assume would try to cast the best pos-
sible light on his office. The specific context and content of
the statement point toward classifying it as a statement of
opinion.
[10] Finally, we consider whether Pfingst's statement was
"sufficiently factual to be proved true or false. " See Id.
Weiner asserts that Pfingst's statement implies he was guilty,
which he contends is a factual matter. But Pfingst did not say
Weiner was guilty. Indeed, the jury had just decided he
wasn't. Pfingst said the trial's outcome "just proves that
cases, unlike fine wine, get worse rather than better, with
age." That was not a statement of fact. It was Pfingst's opin-
ion of why the case was lost. A case can be lost for any num-
ber of reasons, among them, poor preparation, poor
presentation, unexpected occurrences at trial, a better lawyer
or more appealing facts on the other side, or even staleness.
In Pfingst's opinion, staleness caused the loss. That face-
saving statement was not sufficiently factual to be a statement
of fact.
[11] Because all three of the Underwager factors weigh in
favor of classifying Pfingst's statement as an opinion and not
a statement of fact, we agree with the district court that the
statement will not support a claim for defamation under Cali-
fornia law.
IV. Section 1983 Claim Predicated on Defamation
[12] To establish a civil rights claim under 42 U.S.C.
S 1983, a plaintiff must assert more than a violation of state
tort law--he must show that the defendant deprived him of an
interest protected by the Constitution or federal law. See Paul
v. Davis, 424 U.S. 693, 700 -01 (1975); Johnson v. Barker,
799 F.2d 1396, 1399 (9th Cir. 1986). Weiner failed to make
this showing. Therefore, even if Pfingst acted as a county offi-
cial when he made the fine wine statement, and even if in
some circumstance the expression of an opinion might sup-
port a civil rights claim under S 1983, summary judgment in
favor of the County on Weiner's S 1983 claim was proper.
Weiner made no showing of a violation "of some right, privi-
lege, or immunity protected by the Constitution or laws of the
United States." Leer, 844 F.2d at 632-33; see Williams v. Gor-
ton, 529 F.2d 668, 670 (9th Cir. 1976) ("[D]efamation itself
does not establish a cause of action under S 1983]. It is the
deprivation of constitutional rights for which the[Civil
Rights] Act creates a remedy.")
CONCLUSION
We hold the district court properly granted summary judg-
ment in favor of the County. Weiner's claim against the
County for wrongful prosecution under 42 U.S.C.S 1983 fails
because the district attorney, Pfingst, acted in his capacity as
a state official, not a county official, when he decided to pro-
ceed with Weiner's criminal prosecution. Weiner's California
state law defamation claim fails because Pfingst's statement
was an opinion. Weiner's S 1983 claim predicated on the
alleged defamatory statement fails because Weiner made no
showing of a violation of the Constitution or federal law.
AFFIRMED./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
To read the full text of this opinion, go to:
http://laws.findlaw.com/9th/9855752.html
CRIMINAL LAW-WEINER v. SAN DIEGO COUNTY (4/27/00 - No. 98-55752)FCP
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