Appeal from the United States District Court for the Central District of California. D.C. No. CV 92-1864 WDK. William D. Keller, District Judge, Presiding
Before: Tang, Pregerson, and Noonan, Circuit Judges.
Los Angeles Police Chief Daryl Gates and Officers Dotson, Brennan, and Bertrand of the Los Angeles Police Department ("LAPD") [collectively "LAPD Officers"] appeal the district court's order denying their motion for summary judgment, based on qualified immunity, in LAPD Officer Teresa Wallin's 42 U.S.C. § 1983 action. Wallin alleges that LAPD Officers violated her equal protection rights, her privacy rights, her due process rights, and her right to petition the government, when they inappropriately responded to her complaint of sexual assault by Officer James Joy. We dismiss this appeal for lack of jurisdiction.
Appellee Teresa Wallin ("Wallin") is a police officer with the LAPD. On May 30, 1991, Officer James Joy ("Joy") allegedly raped Wallin, and LAPD Internal Affairs Division ("IAD") investigated the matter. Officer Wallin subsequently filed a 42 U.S.C. § 1983 claim for damages against Police Chief Daryl Gates ("Gates"), Assistant Police Chief David Dotson ("Dotson"), Captain Gary Brennan ("Brennan"), Lieutenant Jeffrey Bertrand ("Bertrand"), and Joy. Officer Wallin claimed that all defendants violated her constitutional right to privacy, and that all except Joy violated her rights to equal protection, due process, and to petition the government.
The following is Officer Wallin's version of the facts. LAPD Officers violated LAPD confidentiality regulations and repeatedly threatened her with intimidation and disciplinary action. For example, when Wallin initially spoke with investigator Bertrand, he threatened that she would be disciplined, even terminated, for not admitting the rape and reporting the crime. (ER 182 P 5). He also threatened that IAD would order her to see the LAPD counselor if she did not do so voluntarily. (ER 22-23). Furthermore, Bertrand attempted to deny Officer Wallin representation in the investigation: He threatened to initiate a misconduct investigation based on allegations, which he knew were baseless, of a sexual relationship between Wallin and her employee representative. (ER 184 P 13). Also, Wallin's patrol captain and Joy's ex-partner both contacted her after hearing about IAD's investigation -- in breach of the duty of confidentiality. (ER 182 PP 7-8).
During the following two weeks, Officer Joy, the alleged rapist, called Officer Wallin at home and at work every few hours and told her not to disclose any information to IAD. (ER 183 P 12). He told Wallin that no one would believe her and threatened her with physical harm if she followed up on her report to IAD. (ER 184 P 14). When Wallin reported Joy's threats and harassment and asked for protection, IAD investigators refused unless she disclosed everything about the rape. (ER 183-84 PP 12, 15). After Officer Wallin submitted a psychiatrist's letter that advised IAD not to interrogate her further, (ER 96), IAD directed Joy to have no contact with Wallin. Joy asked male officers for information on Wallin's sex life, recruited others to make similar inquiries, and asked her co-workers for "dirt" on her. (ER 185 P 17). LAPD Officers allowed semi-nude photographs, taken of Wallin for IAD's investigation,*fn1 to be circulated in the office. (ER 191-92 P 40).
Officer Wallin concludes that LAPD Officers unreasonably delayed investigation of her complaint by assigning it low priority and by declining to refer the case for prosecution, which infringed on her constitutional right to petition the government and amounted to unconstitutional gender discrimination. When Wallin complained about delays in the investigation, Bertrand and Brennan allegedly threatened to terminate her if she discussed the case with anyone and told her not to expect LAPD to discipline Joy or seek criminal prosecution. (ER 186-87 PP 83-84). Officer Wallin, in her declaration opposing summary judgment, offers to prove a pattern of gender discrimination, illustrated by several cases where female officers complained of sexual assault and the IAD took no action against the male officer and sometimes retaliated against the female officer. (ER 187-190).
LAPD Officers moved for summary judgment, asserting qualified immunity as an affirmative defense. LAPD Officers contended that the IAD investigation was conducted in conformance with the law and consistent with all other investigations into alleged misconduct by LAPD personnel. (Answer, ER 53 P 28). IAD investigators interviewed several witnesses, obtained photographs of Wallin's bruises, and analyzed Wallin's bed linens. Denying gender discrimination and infringement of Wallin's right to petition, they attributed any delay in the investigation to Wallin's initial denials of misconduct and to IAD investigators' subsequent inability to speak with her. (ER 79 P 15). And, according to LAPD Officers, any alleged "threats" made to Wallin were accurate statements of LAPD regulations.
Specifically, Gates, Dotson, and Brennan maintain on appeal that they did not participate in the alleged misconduct. Gates, as Police Chief, contends that IAD has primary responsibility for investigations and that he did not learn about Wallin's case until she filed suit. (ER 69 P 4). Dotson, who served as the Commanding Officer of the Office of Administrative Services, states that he was briefed on Wallin's complaint and notified the Headquarters Bureau that supervised Joy's division, but denies that he participated in or direct others in the investigation. (ER 71-72 P 3). Brennan, as Chief Investigator of IAD, was responsible for supervising investigators on Wallin's case to ensure that they enforced LAPD policies and regulations. (ER 77-78 PP 10-11).
Bertrand denies that he acted improperly. Bertrand was responsible for investigating Wallin's complaint until October 1991. (Answer, ER 49 P 8). He contends that he never questioned any witness about Wallin's sexual history or revealed photographs of her and that he strived to pursue the complaint vigorously. (ER 86-87 P 13; ER 87-88 P 14). His "threats" to Wallin were valid recitations of LAPD regulations.*fn2
The district court denied LAPD Officers' motion. They appeal.
LAPD Officers contend that the district court erred by denying each of them qualified immunity, when it denied their motion for summary judgment in Wallin's § 1983 action. A district court's denial of a motion for summary judgment is not a final decision within the meaning of 28 U.S.C. § 1291, and therefore, ordinarily is not appealable. Duran v. City of Douglas, 904 F.2d 1372, 1375 (9th Cir. 1990) (citation omitted). However, under the collateral order doctrine, a "court's [summary] denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision. . . ." Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 531, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985)). "So long as the issue on appeal 'is a purely ...