Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^* 

This is a Sec. 1983 action. Vipperman argues that police officers Erickson and Bickle lacked probable cause to arrest him and that the City of Bozeman failed to train and supervise its officers. The district court dismissed the claims on summary judgment, finding that the officers had qualified immunity and the City was not deliberately indifferent to the rights of its citizens. We affirm.

BACKGROUND

Someone stole an amplifier and synthesizer from Marty Johnston's apartment in Bozeman. Four days later, they were sold to Larry Barnwell, operator of a local music store. The seller identified himself as "John Vipperman" and the officers obtained and executed an arrest warrant for the plaintiff. Vipperman posted bond and was in jail only three to five hours. After further investigation, the police discovered that Scott Peek had actually stolen and sold the goods. Upon motion of the state, the court dismissed the charge against Vipperman.

The officers testified that Barnwell told them the seller identified himself with a Montana driver's license, and the supplementary investigation report indicates Barnwell reportedly saw identification from Vipperman. Vipperman points out that Barnwell's written statement does not refer to a license and that Peek had only a license application, not a Montana license with photograph.

Officer Bickle also testified that Barnwell gave him a description of the seller, that he checked it with Montana Driver's License Bureau computer records of Vipperman, and that the two descriptions "fairly well matched." Vipperman notes that Barnwell's written statement makes no mention of a description. He also notes that he is 5'11", 185 pounds, and has dark brown hair, while Peek is 5'10", 150 pounds, has a beard, an acne-scarred face and light brown hair. Barnwell did not appear to testify.

The court, in finding qualified immunity, stated:

Vipperman argues that no reasonably well-trained officer could have determined probable cause on the facts of this case. However, Vipperman draws the conclusion that Officer Bickle based his request for prosecution solely on Barnwell's written statement which has no description of the seller of the goods. Vipperman simply discounts Bickle's deposition testimony which indicates that he talked with Mr. Barnwell and also verified the description given him by running a computer check on the driver's license of John Vipperman.

The court found that it was objectively reasonable for the officers to think they had probable cause and granted their summary judgment motion.

It also found that the City was not deliberately indifferent to the rights of its citizens and granted its summary judgment motion.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. T.W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 629 (9th Cir. 1987).

To avoid summary judgment, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue of material fact. Id. at 630. Mere allegations in the pleadings are not enough. There must be at least some significant probative evidence tending to support the complaint. Id. The reviewing court will then view the evidence in the light most favorable to the non-moving party. Id.

Inferences will also be viewed in the light most favorable to the non-moving party. Id. at 631. Inferences, however, will only be drawn from the "specific facts" set out by the non-moving party. "Inferences from the non-moving party's 'specific facts' as to other material facts, however, may be drawn only if they are reasonable in view of other undisputed background or contextual facts and only if such inferences are otherwise permissible under the governing substantive law." Id.

DISCUSSION

Officers Bickle and Erickson are entitled to the shield of immunity unless, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should be issued. Malley v. Briggs, 475 U.S. 335, 341 (1986). Even if reasonable officers could disagree, immunity should be granted unless the "warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Id. at 344-45. The qualified immunity defense provides ample protection to all but the plainly incompetent and those who knowingly violate the law. Id. at 341.

Vipperman contends that the only undisputed fact is that the seller of the stolen equipment gave his name as John Vipperman. Implicit in the district court's findings, however, is a finding that the testimony of Officer Bickle was undisputed. Bickle testified that Barnwell gave him a description which he verified by running a computer check with state records.

Vipperman failed to provide specific facts through deposition or affidavit to dispute this testimony. He claims that because Barnwell's written statement mentions neither identification being shown nor a description of the suspect, we should infer that the officer's testimony was in error. An inference, however, must be based on a specific fact produced by the non-moving party. T.W. Elec. Serv., 809 F.2d at 631. Barnwell's written statement is silent on the question whether a description was given. There is no specific fact to justify such an inference.¹ 

Vipperman also claims that the officer's testimony is in dispute because Peek simply does not look like him and any description given by Barnwell could not have "fairly well matched." He presented no evidence that Barnwell's description and the computer records did not reasonably match. His opening brief concedes that the description on his license is similar to the one on Peek's. In addition, Barnwell was shown photocopies of the two licenses and could not tell which man sold him the goods.

It was objectively reasonable for the officers to think they had probable cause because they knew the name of the seller of stolen goods and had a description that reasonably matched computer records.

The failure of a city to train or supervise its police officers may prove to be actionable under Sec. 1983 only when it amounts to deliberate indifference to the rights of persons with whom the officers come in contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). This court has interpreted Canton as creating a three-part test when determining whether a city is liable for failure to train its police officers. Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). First, the court must determine if the training program was adequate. Second, if inadequate, the court must determine if the failure to train amounts to a deliberate indifference on the part of the city to the rights of the persons that the officers will come in contact with. Third, the deliberate indifference must be shown to have caused the constitutional violation. Id. To avoid summary judgment, Vipperman must present sufficient facts to create a genuine issue of material fact on each part of the test.

Vipperman introduced evidence to show that Bickle was a patrol officer and that Erickson had been a detective only for a month, and neither received additional detective training from the department. He also introduced evidence that the City had no established procedure for reviewing probable cause determinations and that neither officer received much supervision. Vipperman admits that there was an investigative procedures manual, but alleges that the officers were not required to comply with it.

Although these facts might create a genuine issue as to whether the officers received adequate training, they fail to make a genuine issue as to whether the City was deliberately indifferent to the rights of its citizens. It complied with statutory requirements for hiring police officers. Vipperman has supplied no evidence to suggest that the state program is insufficient in its teachings of probable cause or why the City should think it would be insufficient. This leaves only the isolated occurrence of his improper arrest. Mere proof of a single incident of errant behavior is clearly insufficient to impose liability. Merritt, 875 F.2d at 770.

CONCLUSION

Vipperman failed to dispute the officers' testimony that Barnwell gave a description that reasonably matched computer records of Vipperman. This undisputed evidence is sufficient for an objectively reasonable officer to find probable cause. Vipperman also failed to present evidence to indicate that the City of Bozeman was deliberately indifferent in not providing more training to its officers.

AFFIRMED.