Preliminary hearings and issue preclusion

The legal issue in Patterson v. City of Yuba City, 2018 DJDAR 2153 (9th Cir. 2018), is if a finding of probable cause in a preliminary hearing precludes a subsequent false arrest claim? The case involves the collateral estoppel effect of a finding of probable cause in a preliminary hearing in a subsequent civil suit for 42 U.S.C. Section 1983, false arrest and imprisonment, and intentional infliction of emotional distress claims.

The district court dismissed the case on grounds of collateral estoppel (issue preclusion). A panel of the 9th U.S. Circuit Court of Appeals referred the case to the California Supreme Court because of a split in California Courts of Appeal decisions.

Yuba City police officers arrived late at night on May 20, 2010, at the house of Lonnie Patterson and his fiancée Victoria Rogers-Vasselin to investigate a claim that a woman in the house had brandished a firearm earlier in the day at a census worker. The couple were preparing to retire for the evening when they heard a knock on the door. Victoria suggested he take a gun for protection in answering the knock on the door. The neighborhood had experienced gang activity and robberies.

A dispute in testimony existed in whether Patterson pointed a pistol at Officer Catherine Alestra at the door. In either event the officers ordered him to drop his pistol and put his hands up, which he did. Victoria appeared at the door with a shotgun pointed downwards. The officers shot and killed her after ordering her to drop the gun. They then arrested Patterson. He was charged with assault upon a peace officer with a firearm (Cal. Penal Code Section 245(d)(1) and assault upon another with a firearm, Cal. Penal Code Section 245(a)(2).

Two police officers testified at the preliminary hearing. One of the two, Sergeant Thompson, arrived on the scene shortly after the confrontation. He testified that Officer Alestra told him Patterson had pointed a gun at her chest. Officer Wolfe, the arresting officer, testified Patterson had pointed a gun at Officer Alestra's throat and head area from less than a foot away. Officer Alestra did not testify.

The magistrate limited cross-examination by the defense. He precluded questioning of whether the officers intended to do "something illegal." He held subjective intent was irrelevant to the officers' actions that night. Patterson did not testify and presented no witnesses.

The magistrate held that "reasonable and probable cause to believe" a violation of Section 242(a)(2) of the Penal Code existed, but reduced the charge to a misdemeanor. He certified the charge for arraignment, but not the 245(d)(1) charge.

Patterson was acquitted by a jury in July 2014 of all charges. He filed the present suit, in which the 9th Circuit seeks clarity from the California Supreme Court, four days before the preliminary hearing.

The district court granted summary judgment on the false arrest claim on the grounds of collateral estoppel from the preliminary hearing finding of probable cause. Issue preclusion applies against a party who had a full and fair opportunity in the earlier case. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327-29 (1979).

A finding of probable cause in a criminal prosecution normally suffices to defeat a false arrest or malicious prosecution claim since the lack of probable cause is a critical element of these civil actions. A finding of probable cause to arrest is an affirmative defense to a claim of false arrest, Miller v. Guest, 282 P. 2d 501, 503 (Cal. 1955), and defeats a malicious prosecution claim. Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 871-72 (1989).

Collateral estoppel seemed clear in California jurisprudence until recently. A finding of probable cause in a preliminary hearing would bind the criminal defendant in a subsequent false arrest action. The split occurs between the appellate decisions in McCutchen v. City of Montclair, 73 Cal. App. 4th 1138 (1999), and Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728 (2008).

The elements of collateral estoppel are "(1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action ... and (5) the former decision is final and made on the merits" McCutchen, 73 Cal. App. 4th at 1144; Kelly v. Vons Companies, Inc., 67 Cal. App. 4th 1329, 1339 (1998); see also DKN Holdings LLC v. Faerber, 352 P. 3d 378, 387 (Cal. 2015).

Issue preclusion precludes a party from reltigating an issue of ultimate fact that a court has already adjudicated. Witkin, Cal. Procedure (5th ed. 2008) Judgment Section 339, p. 945-46. It applies in a civil suit for issues decided in a prior criminal proceeding. Allen v. McCurry, 449 U.S. 90, 104 (1980); McCutchen, 73 Cal. App. 4th at 1144. McCutchen, though, provides an exception when the arresting officers have lied or fabricated evidence. Id. at 1147. McCutchen on its facts found that issue preclusion did not apply because the evidence presented at the preliminary hearing was not the same available to the arresting officer at the time of arrest. Id. at 1147-48.

The conflict arises in that the 6th District Court of Appeal questioned "the soundness of the narrow holding of McCutchen because we do not believe a preliminary hearing either raises the issue of, or provides an adequate opportunity to litigate, the legality of an arrest" in Schmidlin, 157 Cal. App. 4th at 767.

The concept of probable cause remains the same, but the facts used for probable cause to hold a defendant for trial may be different than the facts an arresting officer claims for the arrest. The Schmidlin court recognized this dichotomy. Id. The nature of the preliminary hearing before a magistrate hearing has limitations. The court recognized a criminal defendant may withhold issues from adjudication at a preliminary hearing. Id. at 770. The court reasoned "[T]he magistrate at the preliminary hearing is not empowered to resolve questions of credibility or conflicts in the evidence except as they bear on the existence of 'sufficient cause to believe the defendant is guilty'" Id. at 768.

Patterson is questioning in his civil lawsuit the asserted probable cause by the arresting officer pursuant to Schmidlin. The 9th Circuit panel therefore seeks a resolution from the California Supreme Court.

The resolution of the issue will have major implications in California jurisprudence. Schmidlin opens the door to relitigation of probable cause in a civil suit, which would probably become almost routine after major criminal acquittals at a trial. On the other hand, a holding that the finding of probable cause is binding in a subsequent civil suit will preclude a wrongfully arrested and acquitted party from seeking compensation for the wrongful arrest in many cases.

However, the split between McCutchen and Schmidlin is not as great as it may seem: McCutchen recognizes that the finding of probable cause in the criminal proceeding will not be issue precluding if the arresting officer was lying or fabricated evidence. Patterson seeks to attack the credibility of the arresting officers, which he was precluded from doing at the preliminary hearing.