GARY KLEIN V. CITY OF BEVERLY HILLS, No. 15-56279 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 4 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GARY KLEIN, No. Plaintiff-Appellant, U.S. COURT OF APPEALS 15-56279 D.C. No. 2:13-cv-00110-JFW-VBK v. CITY OF BEVERLY HILLS; DANIEL CHILSON; MICHAEL PUBLICKER; DAVID L. SNOWDEN, Chief, MEMORANDUM * Defendants-Appellees. Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Argued and Submitted March 10, 2017 Pasadena, California Before: TASHIMA and NGUYEN, Circuit Judges, and MARBLEY,** District Judge. Gary Klein appeals the district court’s grant of summary judgment in favor of Defendants on his judicial deception claims. Klein argues that Defendants * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. violated his Fourth Amendment rights by obtaining three search warrants through judicial deception. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1 1. Klein argues that Detective Chilson, the affiant on all three warrants, “misled the magistrate judge when applying for the warrant[s].” Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011). Klein has failed to show a triable issue of material fact that Detective Chilson made deliberately or recklessly false statements, and that, but for his dishonesty, the warrants would not have been issued. See Chism v. Washington, 661 F.3d 380, 386 (9th Cir. 2011) (quoting Liston v. Cty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)). Klein’s judicial deception claims fail at the first step because many of Detective Chilson’s statements were not deliberately or recklessly false. For example, Detective Chilson correctly noted Klein’s request that no autopsy be performed on his wife’s body and Klein’s suggestion that his wife be placed on dialysis treatment. 2. Even assuming the affidavits contained misstatements or omissions, they were not “material to the magistrate judge’s probable cause determination.” Id. at 388-89; see also Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997) (“[W]hen it is not plain that a neutral magistrate would not have issued the 1 In a concurrently filed per curiam opinion, we reversed the district court’s conclusion that Klein’s claim as to the first warrant issued and executed on August 3, 2009, is time-barred. As we explain here, however, Klein’s claims of judicial deception fail on the merits. 2 warrant, the shield of qualified immunity should not be lost.”). The affidavits contain ample probable cause separate and apart from any purported misrepresentations, including: the fact that Klein’s wife was seeking a divorce; his wife’s statements to others that, three weeks before her death, Klein had threatened her, claiming that he could “get rid of her” and that “no one would know how she died;” Klein’s anger at the prospect of a full autopsy; Klein’s phone call to his probate attorney less than twenty-four hours after his wife’s death to ask about her financial situation; and the forged signatures on the codicil to his wife’s will. AFFIRMED in part; REVERSED in part. 3
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