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Tatum v. Moody

United States Court of Appeals, Ninth Circuit

September 17, 2014

MARY TATUM, Plaintiff-Appellee,
STEVEN MOODY, LAPD Detective; STEVEN MOODY, LAPD Detective; ROBERT PULIDO, LAPD Detective, Defendants-Appellants. MARY TATUM, Plaintiff-Appellee, ROBERT PULIDO, LAPD Detective, Defendants-Appellants

Argued and Submitted, Pasadena, California: March 9, 2012.

Page 807

Appeal from the United States District Court for the Central District of California. D.C. No. 2:08-cv-04707-PJW. D.C. No. 2:08-cv-04707-PJW. Patrick J. Walsh, Magistrate Judge, Presiding.


Civil Rights

The panel affirmed the district court's judgment, entered following a jury verdict in favor of plaintiff, in an action brought pursuant to 42 U.S.C. § 1983 alleging that Los Angeles Police Department detectives failed to disclose compelling exculpatory evidence to the prosecutor while plaintiff was incarcerated pretrial, and did so with deliberate indifference to, or reckless regard for, the truth or plaintiff's rights.

Plaintiff was incarcerated for 27 months pending trial on charges arising from a series of demand-note robberies. The charges were dismissed after plaintiff's defense counsel obtained exculpatory material which defendants failed to disclose. The panel held that plaintiff's claim was covered by the Fourteenth Amendment's guarantee of due process, and not by the Fourth Amendment. The panel held that the Constitution protects a plaintiff from prolonged detention when the police, with deliberate indifference to or in the face of a perceived risk that their actions will violate the plaintiff's right to be free of unjustified pretrial detention, withhold from the prosecutors information strongly indicative of his innocence. The panel held that the jury's determination that defendants acted with deliberate indifference or reckless disregard for plaintiff's rights satisfied the standard applicable to violations of due process and that the jury instructions described a cognizable constitutional claim. Because the panel affirmed the district court's judgment, it likewise affirmed the award of fees to plaintiff, as the prevailing party.

Amy Jo Field (argued), Deputy City Attorney; Carmen A. Trutanich, City Attorney, Los Angeles, California, for Defendants-Appellants.

John Burton (argued), Law Offices of John Burton, Pasadena, California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, West Hollywood, California, for Plaintiff-Appellee.

Before: Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges, and Ronald M. Whyte, Senior District Judge.[*] Opinion by Judge Berzon.


Page 808

BERZON, Circuit Judge:

A jury found Los Angeles Police Department (" LAPD" ) detectives Steven Moody and Robert Pulido liable under 42 U.S.C. § 1983 for violating Michael Walker's constitutional rights by (1) acting with deliberate indifference to, or reckless disregard for, Walker's rights or for the truth, in (2) withholding or concealing evidence that (3) strongly indicated Walker's innocence of the crimes for which he was held, and was reasonably likely to have resulted in dismissal

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of the charges against him if revealed. Indeed, dismissal of the charges is exactly what happened when Walker's defense counsel finally obtained the exculpatory material, after Walker had endured pretrial incarceration for over two years.

Walker, now deceased, was incarcerated pending trial on charges arising from a series of demand-note robberies of small retail businesses in Los Angeles. Detectives Moody and Pulido were responsible for investigating the crimes. They knew, before Walker was bound over for trial, that additional demand-note robberies, perpetrated with the same distinctive modus operandi as those for which Walker was being held, had occurred in the same part of Los Angeles after Walker was in police custody. Pulido also knew that another man, Stanley Smith, had confessed to some of those later crimes after Walker's arrest. The spate of demand-note robberies in fact ended only upon Smith's apprehension.

Moody and Pulido never disclosed any of this information--not the continuing crime spree, not the similarities of those continuing crimes to the crime for which Walker was being detained, not Smith's arrest, and not Smith's confession--to the prosecutor pursuing the case against Walker. Instead, the two officers falsely asserted in police reports written by Moody and approved by Pulido that the " crime spree caused by the 'Demand Note Robber'" ceased with Walker's arrest. When, twenty-seven months of pretrial detention and repeated discovery requests later, Walker's defense attorneys finally learned of Smith's arrest and conviction, Smith's fingerprints were matched to those found at the scene of one of the robberies attributed to Walker. As soon as the prosecutor was made aware of this evidence, he dropped the charges against Walker. A California court thereafter declared him factually innocent, but only after he had been deprived of his liberty for over two years.

In this 42 U.S.C. § 1983 action, the jury found that Moody and Pulido failed to disclose this compelling exculpatory evidence to the prosecutor, and did so with deliberate indifference to, or reckless regard for, the truth or for Walker's rights. We affirm.


A. The Southwest Division investigation

Between June 27 and August 15, 2005, the Southwest Division of the Los Angeles Police Department (" LAPD" ) received reports of thirteen " demand-note" robberies. In each robbery, the perpetrator entered a small business and presented a handwritten note demanding money from the cashier.

During this period, Pulido supervised the " robbery table" at the Southwest Division. Pulido, Moody's direct supervisor, assigned him to investigate the thirteen demand-note robberies that had been reported at that time.

By the time the sixth demand-note robbery was reported, Moody and Pulido began to suspect that the robberies were being committed by a single individual. Until the recent spree, demand-note robberies had been rare in the area. Each of these recent robberies, however, followed the same script: the robber, who appeared to be working alone, would enter a business posing as a customer; present a note to the cashier demanding money, sometimes threatening violence or displaying what looked like a firearm; take cash; and then flee on foot. Although the precise language of the demand notes varied from one robbery to the next, the messages were similar. The suspect in each of the

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robberies also shared a general physical description: " male black, black hair, brown eyes, 5'6" to 5'7", 160 to 180 pounds, age varying from 25 to 45."

On August 13, the twelfth demand-note robbery in the Southwest Division occurred at an EB Games store. The thirteenth occurred two days later at a nearby Blockbuster. On August 16, Walker went to EB Games and was arrested after employees identified him as the perpetrator of the robbery three days before. Police took Walker to the Southwest station, where they determined that he did not have a demand note on him. After agreeing to speak to Moody and waiving his Miranda rights, Walker maintained that he did not have any involvement in the EB Games robbery and consented to a search of the apartment where he stored his personal property. Moody conducted the search but found no evidence of the crime or any other robbery.

Nonetheless, Moody and Pulido concluded almost immediately that Walker had committed all thirteen demand-note robberies that had then been reported to the Southwest Division. Just two days later, however, events transpired that should have led them to reconsider that theory: someone attempted to rob the Golden Bird, a restaurant in the Southwest Division, with a demand note. The description of the perpetrator of this crime matched that of the suspect who had committed the previous thirteen robberies, and the modus operandi was the same.

When Pulido learned of the attempted robbery at the Golden Bird, he assigned the case to Moody for investigation. Moody was " surprised" to hear about this incident; the first thing that came to his mind when he read the report of the incident was that the Golden Bird robber might be the same suspect that had committed the previous robberies. Moody discussed this theory with Pulido, who also expressed surprise that another, similar robbery had occurred in the same area, even though they had a suspect in custody.

That same day, yet another demand-note robbery occurred at a different location in the Southwest Division, a Burger King restaurant. Pulido assigned investigative responsibility for that robbery to an officer other than Moody; that officer issued a crime alert. As Pulido later testified, Moody " should have" seen the crime alert in the normal course of business.[1] Pulido also testified at trial that, within days of Walker's arrest, he was aware of " the Burger King robber and the Golden Bird robber, who had the same general descriptions and the same MO [as the person] . . . committing demand-note robberies."

B. The Robbery Homicide Division investigation

During this same period, detectives Freddy Arroyo and Brett Richards were investigating a series of demand-note robberies, beginning with one that occurred on June 30, 2005. Arroyo and Richards were assigned to the Robbery Homicide Division (" RHD" ) of the LAPD, a specialized unit whose investigative responsibility

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covered the entire city. The RHD demand-note robberies shared a similar suspect description with those being investigated by the Southwest Division. The suspect was generally described as a " [m]ale black, 35 to 40 years old, . . . thin to medium build." The modus operandi for these robberies was also similar to those in the Southwest Division: the suspect would present a demand note to the cashier and sometimes simulate a handgun and threaten to shoot the victim.

Arroyo was assigned to the South Bureau of the RHD, which includes the Southwest Division. While investigating the demand-note robberies in the South Bureau, Arroyo generally spoke to Pulido at least once a week. Pulido knew about the RHD's investigation of demand-note robberies by the end of August. And during the end of August and beginning of September, Arroyo and Pulido spoke " almost on a daily basis." Nevertheless, Arroyo testified at trial, he had no recollection of Pulido telling him that the Southwest Division had investigated a similar series of demand-note robberies that culminated in an arrest. Nor did Pulido notify the RHD about the attempted robbery of the Golden Bird when it occurred. He did, however, inform Arroyo about the Burger King robbery, which was then transferred to Arroyo for investigation.

On September 15, Stanley Smith was arrested while fleeing from a Blockbuster he had just robbed using a demand note. At trial, Arroyo did not recall whether Smith had specifically admitted involvement in any of the demand-note robberies in the Southwest Division that occurred before Walker's arrest. Nor does the record reveal whether Smith was ever asked about his potential involvement in those thirteen robberies. But Smith did confess to committing roughly two robberies per week, and specifically identified five of these robberies, including the Burger King robbery in the Southwest Division that occurred just days after Walker's arrest.

The spree of demand-note robberies in the Southwest Division ended with Smith's arrest. Based on Smith's modus operandi, Arroyo suspected that Smith was responsible for all the recent demand-note robberies. Smith was ultimately convicted of several of the robberies attributed to him.

Arroyo notified Pulido of Smith's arrest almost immediately. Although the RHD circulated a bulletin to all LAPD divisions regarding Smith's arrest, ...

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