Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1985)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1985)

Richard KOENIG, Plaintiff-Appellant,v.Kenneth ENGH, Washington County Police Officer, WashingtonCounty, Washington County Sheriff's Department,Defendants-Appellees.

No. 86-4390.

United States Court of Appeals, Ninth Circuit.

Submitted April 25, 1988.* Decided July 25, 1988.

Before FLETCHER, PREGERSON and CANBY, Circuit Judges.


Richard Koenig appeals pro se the district court's grant of summary judgment in favor of Kenneth Engh, a county sheriff, the sheriff's department, and the county in Koenig's 42 U.S.C. § 1983 action. Koenig contends that Engh violated his civil rights by causing Koenig to be arrested without probable cause. We affirm.


In March 1985, Linda Snead reported to Detective Kenneth Engh of the Washington County Sheriff's Department that she believed her son, Jacob, had been abducted by Richard Koenig. Snead explained that she had lived with Koenig, that Koenig was Jacob's father, and that she had recently allowed Koenig to take Jacob to Seattle. Koenig had since left Seattle with Jacob, leaving no information as to their whereabouts.

Engh investigated Snead's report and consulted with a deputy district attorney. Based on his investigation and the district attorney's advice, Engh submitted a warrant application for Koenig's arrest for kidnapping and custodial interference.

On April 4, 1985, the Washington County District Court issued a warrant for Koenig's arrest, and on the same day the police in West Covina, California, arrested Koenig. Koenig was taken into custody in Los Angeles County and Jacob was returned to his mother. On April 18, 1985, the criminal charges against Koenig were dismissed.

Koenig brought an action under 42 U.S.C. § 1983, alleging the defendants had caused Koenig to be arrested without probable cause. The district court, adopting the findings of the magistrate, granted summary judgment in favor of the defendants. Koenig timely appeals.


This court reviews de novo a district court's grant of summary judgment. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). When conducting such a review, this court "views the evidence in the light most favorable to the party opposing the motion and accords that party's papers a liberal construction." Allen v. Scribner, 812 F.2d 426, 430 (9th Cir. 1987), modified, 828 F.2d 1445 (9th Cir. 1987).

Koenig argues that because he is Jacob's father, there was no probable cause to arrest him for kidnapping or custodial interference. We find that there was probable cause for the arrest.

An arrest without probable cause violates the fourth amendment and gives rise to a claim for damages under section 1983. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Whether probable cause existed is normally a question of fact for the jury, and summary judgment for the defense is appropriate only when no reasonable jury could find the officer lacked probable cause for the arrest. McKenzie, 738 F.2d at 1007-08. To establish probable cause, the arresting officer must show he had some objective evidence which would allow a reasonable officer to deduce that the suspect had committed or was in the process of committing a crime. Id. See also Beck v. Ohio, 379 U.S. 89, 91 (1964). While mere suspicion, common rumor, or even strong reason to suspect will not suffice to show probable cause, conclusive evidence of guilt is not necessary. See McKenzie, 738 F.2d at 1008.

Koenig was arrested for and charged with two crimes: kidnapping1  and custodial interference.2  Engh's information came from Linda Snead and Kay Kreel, a social service worker for the Oregon's Children's Services Division. Snead reported to Engh that her son, Jacob, was missing, and that she believed Koenig had taken him out of state. Engh then contacted Kreel, who told him that Koenig admitted to having custody of Jacob and indicated an intention to leave the state, giving her a forwarding address of Glendora, California. Engh presented this evidence to a deputy district attorney who advised him that there was probable cause to charge Koenig with both offenses.

Koenig does not deny any of the allegations in the affidavit Engh submitted to support the arrest warrant. Rather, he argues that they established that he is Jacob's father and that, because paternity is a defense to kidnapping under Oregon law, his arrest was unsupported by probable cause. Engh and the Sheriff's Department maintain that Koenig never established paternity under Oregon law and that his argument therefore fails.

Although it does not appear that Koenig ever established paternity under Oregon law,3  there is still some merit to his argument. The issue is not whether paternity was actually established, but rather whether the evidence before Engh would allow a reasonable officer to conclude that Koenig was not Jacob's father and that Koenig had therefore committed the crime of kidnapping. Jacob's mother told Engh that Koenig was the father of Jacob and she had listed him as the father on the birth certificate, although she and Koenig had never married and Koenig had refused to sign Jacob's birth certificate. Given the ambiguity of this information regarding Koenig's parental status, a reasonable police officer might have an obligation to investigate further before concluding he had probable cause to arrest for kidnapping.

Questions as to Koenig's parental status have no bearing however, on the second charge, that of custodial interference. See State v. West, 70 Or.App. 167, 171, 688 P.2d 406, 408 (1984) (custodial interference against a child's mother upheld). The focus of Or.Rev.Stat. Secs. 163.245 and 163.257 is on the protection of the rights and interests of the two "victims" of the offense: the child and the "lawful custodian" from whom the child is "taken, enticed, or kept." West, 688 P.2d at 408. The legal status of the offending party is irrelevant. Id. All that was necessary to establish probable cause for the custodial interference charge was credible evidence that Koenig had taken Jacob from the state without the consent of Snead. Based on the statements of Snead and Kreel, Engh clearly had such evidence before him. Accordingly, the district court did not err in determining that probable cause existed as a matter of law. See McKenzie, 738 F.2d at 1007-08.

Koenig petitions the court to allow augmentation of the record with a portion of a transcript of state court proceedings. We grant the petition, and have reviewed the material submitted, but find that it does not alter the result in this case.



The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3


Oregon law defines kidnapping in the second degree as follows:

(1) a person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, he:

(a) Takes the person from one place to another; or

(b) Secretly confines the person in a place where he is not likely to be found.

(2) It is a defense to a prosecution under subsection (1) of this section if:

(a) The person taken or confined is under 16 years of age; and

(b) The defendant is a relative of that person; and

(c) His sole purpose is to assume control of that person. Or.Rev.Stat. 163.225 (1971).


Oregon law defines custodial interference in the first degree as follows:

(1) A person commits the crime of custodial interference in the first degree if the person violates Or.Rev.Stat. Sec. 163.245, and;

(a) Causes the person taken, enticed or kept from the lawful custodial to be removed from the state; or

(b) Exposes that person to a substantial risk of illness or physical injury. Or.Rev.Stat. 163.257 (1981).

Or.Rev.Stat. Sec. 163.245 (1981) provides in pertinent part:

(a) A person commits the crime of custodial interference in the second degree if, knowing or having reason to know that the person has no legal right to do so, the person takes, entices or keeps another person from the other person's lawful custodian with intent to hold the other person permanently or for a protracted period.

"Lawful custodian" is defined in Or.Rev.Stat. Sec. 163.215(2) (1971):

"Lawful custodian" means a parent, guardian or other person responsible by authority of law for the care, custody or control of another."


Koenig apparently argues that paternity is established because his name appears on a delayed certificate of birth for Jacob. However, this does not establish paternity under Oregon law, nor does Koenig allege additional facts which would establish his paternity