Thursday, May 06, 2004

JOSE LOUIS NAVARRO, Plaintiff - Appellant, v. CITY OF SOUTH GATE, a Municipal Corporation; GEORGE TROXCIL, individually; GEORGE TROXCIL, in his official capacity as Chief of Police; ALBERT CARRILLO; A. LOPEZ, Defendants - Appellees.

No. 02-55395


81 Fed. Appx. 192; 2003 U.S. App. LEXIS 23421

June 4, 2003, Argued and Submitted, Pasadena, California
November 14, 2003, Filed

I. Fourth Amendment

The officers' failure to further investigate the possibility of self-defense -- indeed, their failure even to acknowledge the evidence in support of such a claim -- might not be fatal to their claim of qualified immunity if self-defense were merely an affirmative defense on which Navarro had the burden of proof. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) [**8] ("[A] law enforcement officer is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." (internal quotation marks omitted)). In this case, however, Navarro was arrested for a crime that is statutorily defined so that negation of self-defense is an element of the offense on which the prosecution bears the burden of proof. Cal. Penal Code § 246.3 (West 2003); People v. Alonzo, 13 Cal. App. 4th 535, 538, 16 Cal. Rptr. 2d 656 (1993); California Jury Instructions, Criminal Instruction 9.03.3 (7th ed. 2003). By failing to investigate material exculpatory evidence that negated an element of the offense, the officers did not consider the totality of the circumstances, and therefore they did not act reasonably in concluding that probable cause existed to arrest Navarro. n3 See Broam, 320 F.3d at 1032 ("An officer is not entitled to a qualified immunity defense ... where exculpatory evidence is ignored that would negate a finding of probable cause.").

A lack of evidence on a particular element, however, is quite a different matter from the presence of evidence that affirmatively suggests that an element cannot be met. Defendants have cited no authority for the proposition that officers may ignore exculpatory evidence on an element of the offense in making probable cause determinations.

Given the clearly established nature of both the law defining the offense at issue and the requirement that officers consider the totality of the circumstances (exculpatory as well as inculpatory), as well as the presence of strong evidence indicating that Navarro acted in self-defense, a reasonable officer would not have sought to arrest Navarro without first considering whether the discharge of the firearm was privileged. This is particularly the case in light of the fact that the officers' investigation took nearly two weeks to finish and did not present the difficulty of drawing fine legal distinctions under exigent circumstances. [*196] Cf. Graves v. City of Coeur D'Alene, 339 F.3d 828, 846-47 (9th Cir. 2003).

II. Eighth Amendment

Navarro next contends the district court erred in granting summary judgment on his two Eighth Amendment claims.

First, Navarro contends the officers submitted an inaccurate criminal history print-out, which resulted in a $ 55,000 increase in bail. We agree [**10] that a material dispute of fact would exist if Navarro had presented evidence that the inaccurate criminal history report was before the court when the court set bail. However, we find no such evidence in the record.

Navarro points only to a certified copy of the clerk's docket from Los Angeles Municipal Court. The docket notes that during the bail hearing, "[a] copy of the complaint and the arrest report [was] given to defendant's counsel." Even presuming the court also had the complaint and arrest report before it, there is no evidence that the inaccurate criminal history was attached to either of these two documents. As the district court noted, Navarro has not submitted certified copies of either the arrest report or the complaint from which we could determine their contents. Thus, Navarro has not put forth evidence sufficient to create a triable issue of fact.
In sum, we reverse the summary judgment on Navarro's [**14] Fourth Amendment claim and remand for further proceedings. However, we affirm the grant of summary judgment on his Eighth and First Amendment claims.

Each party shall bear its own costs on appeal.

AFFIRMED in part; REVERSED in part and REMANDED.