FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY M. GALEN, 

Plaintiff-Appellant,

v.

No. 04-55274 COUNTY OF LOS ANGELES; LOS

ANGELES  D.C. No. COUNTY SHERIFF’S

DEPARTMENT; ANNA BARRIER; CV-02-08115-DSF

MARIAN HOLLAND; GLENN

HEINRICH,

Defendants-Appellees. 

JEFFREY M. GALEN, 

Plaintiff-Appellant,

No. 04-56148 v.

D.C. No. COUNTY OF LOS ANGELES; LOS  CV-02-08115- ANGELES COUNTY SHERIFF’S

DSF(Ex) DEPARTMENT; ANNA BARRIER;

MARIAN HOLLAND; GLENN OPINION

HEINRICH,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

November 15, 2005—Pasadena, California

Filed November 7, 2006

18317
Before: Kim McLane Wardlaw and Richard A. Paez,

Circuit Judges, and James K. Singleton,* District Judge.

Opinion by Judge Wardlaw

*The Honorable James K. Singleton, Senior United States District

Judge for the District of Alaska, sitting by designation. 

18318 GALEN v. COUNTY OF LOS ANGELES
COUNSEL

Alan S. Gutman and Elizabeth L. Bradley, Law Offices of

Alan S. Gutman, Beverly Hills, California, for the appellant.

John J. Collins, Tomas A. Guterres, Douglas Fee, and Catherine C. Mason, Collins, Collins, Muir & Stewart, LLP, South

Pasadena, California, for the appellees.

GALEN v. COUNTY OF LOS ANGELES 18321
OPINION

WARDLAW, Circuit Judge: 

In this action pursuant to 42 U.S.C. § 1983, Jeffrey Galen

claims that the $1,000,000 bail set upon his arrest for domestic violence was excessive in violation of the Eighth Amendment. He asserts that the district court erred by granting

summary judgment in favor of the County of Los Angeles and

its officers on the basis of qualified immunity. Because we

agree with the district court that Galen failed to adduce evidence that peace officers caused unconstitutionally excessive

bail to be set, we affirm the summary judgment. However, we

hold that the district court abused its discretion in part in

awarding attorneys’ fees to the County and its officers.

I. Factual and Procedural Background

On the morning of October 26, 2001, Los Angeles County

Sheriff’s Department Deputies Bausmith and Heinrich

arrested Galen at his Encino, California law office on suspicion of violating Penal Code section 273.5, California’s

domestic violence statute. Sergeant Barrier approved the

arrest. The alleged victim, Galen’s then-fiancée, previously

had sought protection against Galen from sheriff’s deputies

and had shown them photographs of injuries she claimed

Galen had inflicted on her, including large bruises on her

arms and legs and a seven-inch laceration on her upper arm.

After sheriff’s deputies booked Galen at the Lost Hills

Sheriff Station, Sergeant Barrier and Deputy Bausmith discussed requesting an increase in Galen’s bail from $50,000,

the default amount for a section 273.5 violation. Sergeant

Barrier believed Galen could easily post $50,000 bail because

he was an attorney and lived in a “fairly nice house.” She

knew there previously had been problems between Galen and

his fiancée and was concerned Galen “could quite possibly

have gone and caused some further physical harm to [his fian18322 GALEN v. COUNTY OF LOS ANGELES
cée], or worse,” if he were released on bail. Sergeant Barrier’s

concerns were enhanced by the statement in the Probable

Cause Declaration (“PCD”) for Galen’s arrest, which other

deputies involved in the investigation had partially prepared

and which Deputy Heinrich later completed, that “the victim

was in fear for her safety.” Sergeant Barrier, who had never

before sought a bail enhancement for a section 273.5 arrestee,

wanted bail set high enough to prevent Galen from posting

bail. 

Deputy Bausmith instructed Deputy Heinrich to fill out a

Bail Deviation Form and contact the County Probation

Department’s Bail Deviation Unit to request an increase in

Galen’s bail over the default amount. On the Bail Deviation

Form, Deputy Heinrich requested that Galen’s bail be

enhanced to $1,000,000. This enhancement request was based

solely on what Deputy Bausmith had told Deputy Heinrich

and was intended to ensure the safety of Galen’s fiancée.

Deputy Heinrich indicated on the form that Galen’s offense

was likely to continue, that the “[i]njury to [the] victim

required medical treatment,” and that Galen had waived his

bail deviation phone call. Deputy Heinrich had never met

Galen’s fiancée or seen evidence of her injuries; the information he entered on the form came from Deputy Bausmith, the

PCD, and his own inferences based on the urgency of Galen’s

arrest. 

To request the enhancement, Deputy Heinrich spoke to

De’anna English, an aide at the Bail Deviation Unit. Deputy

Heinrich related the facts of the case as he understood them

from Deputy Bausmith and the PCD. He told the aide that

Galen’s fiancée feared for her safety and had been vague with

sheriff’s deputies, that he believed the crime would likely

continue if Galen were released, and that Galen was an attorney and could easily post $50,000 bail. Deputy Heinrich also

faxed the PCD to the Bail Deviation Unit, but he never provided the Unit with the Bail Deviation Form, nor was a separate PCD ever prepared for the bail enhancement request. The

GALEN v. COUNTY OF LOS ANGELES 18323
bail aide completed a form in response to Deputy Heinrich’s

request that included substantially all the information Deputy

Heinrich provided her. The record is bereft of any evidence

concerning what information the bail aide provided to the Bail

Commissioner or what factors went into the Commissioner’s

decision to enhance Galen’s bail. 

At noon, Bail Commissioner (now Superior Court Judge)

Kelvin Filer set Galen’s bail at $1,000,000. Galen already had

spoken with his attorney and begun the process of securing

bail when he learned that his bail had been enhanced. It was

a Friday, and Galen feared he would spend the weekend in jail

if he did not post bail immediately. Galen called his lawyer

and a bail bond company and obtained a bail bond of

$1,000,000 in return for paying a $50,000 premium. 

Later, after he had secured bail, Galen was shown the Bail

Deviation Form and notified of his right to challenge the

enhancement. He signed the form, acknowledging that he had

read it and understood he had a right to apply for a bail reduction. Galen was released at 5 p.m. He never requested a bail

reduction or otherwise challenged the amount of his bail

while in custody. Detective Holland investigated the suspected abuse, but Galen’s fiancée, after speaking with Galen,

signed a “Request Not To Prosecute.” No charges were filed.

In October 2002, Galen filed a complaint in the United

States District Court for the Central District of California

against the County of Los Angeles, Sergeant Barrier, and

Detective Holland, seeking damages under 42 U.S.C. § 1983

for Fourth, Fifth, Eighth, and Fourteenth Amendment violations allegedly resulting from the bail enhancement. Galen

also sought damages under Monell v. Department of Social

Services, 436 U.S. 658 (1978), alleging that the County knowingly maintained a policy or practice of disregarding California bail law in violation of the Eighth Amendment. Galen

added Deputy Heinrich as a defendant shortly after filing his

18324 GALEN v. COUNTY OF LOS ANGELES
complaint and did not actively pursue his suit against Detective Holland.1

All claims except the Eighth Amendment excessive bail

claim were dismissed on the County’s motion. The County

then moved for summary judgment, asserting that no constitutional violation had occurred; Sergeant Barrier and Deputy

Heinrich did not cause Galen’s bail to be enhanced and were

entitled to qualified immunity; and the County was not liable

under Monell. The district court held that Galen’s bail was not

excessive, and that even if it was excessive, neither Sergeant

Barrier nor Deputy Heinrich caused the Eighth Amendment

violation and both were entitled to qualified immunity. Galen

v. County of Los Angeles, 322 F. Supp. 2d 1045, 1051-57

(C.D. Cal. 2004). The court also entered judgment in favor of

the County on Galen’s Monell claim, finding that the County

had no policy, custom, or practice designed to ensure or

resulting in the setting of excessive bail. Id. at 1057-59. 

The County subsequently moved for $79,890 in attorneys’

fees pursuant to 42 U.S.C. § 1988, alleging that Galen’s suit

had been frivolous. The district court found that it had

become clear once discovery was completed that Galen’s suit

was meritless, and that he should have ceased litigating at that

point. Id. at 1060-64. The court awarded the County attorneys’ fees of $23,400 for the post-discovery period. Id. at

1064. Galen timely appeals both the grant of summary judgment on his Eighth Amendment claim against the individual

defendants and the award of attorneys’ fees. He does not

appeal the grant of summary judgment on the Monell claim.

II. Standard of Review

We review a district court’s decision to grant or deny summary judgment based on qualified immunity de novo. Prison

1We refer to the County of Los Angeles and its defendant officers collectively as “the County.” 

GALEN v. COUNTY OF LOS ANGELES 18325
Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005).

We review a district court’s decision to grant attorneys’ fees

pursuant to 42 U.S.C. § 1988 for an abuse of discretion.

Empress LLC v. City and County of San Francisco, 419 F.3d

1052, 1057 n.4 (9th Cir. 2005). Legal analysis involved in the

decision to grant attorneys’ fees is reviewed de novo, while

relevant factual findings are reviewed for clear error. Thomas

v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005). 

To withstand summary judgment, Galen must make a

showing sufficient to establish a genuine dispute of material

fact regarding the existence of the essential elements of his

case that he must prove at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 321-23 (1986). Galen must present affirmative evidence to make this showing. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986). Bald assertions that genuine issues

of material fact exist are insufficient. MAI Sys. Corp. v. Peak

Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993). A factual

dispute is genuine only if a reasonable trier of fact could find

in favor of the nonmoving party. Liberty Lobby, 477 U.S. at

248. A “mere scintilla of evidence” supporting Galen’s position is insufficient to withstand summary judgment. Rivera v.

Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005).

III. Discussion

We affirm the district court’s grant of summary judgment

to the County. Galen cannot establish that his bail was excessive because there is no evidence of the factors the Commissioner considered in enhancing bail, or of his motive for

enhancing bail. Nor is there evidence that Sergeant Barrier or

Deputy Heinrich proximately caused the alleged constitutional violation. Moreover, Sergeant Barrier and Deputy

Heinrich are entitled to qualified immunity because a reasonable peace officer in their positions would not have understood that his conduct violated the Eighth Amendment. We

reverse and remand the award of attorneys’ fees because the

district court abused its discretion in part in holding that it

18326 GALEN v. COUNTY OF LOS ANGELES
became obvious upon the completion of discovery that

Galen’s suit had no merit as to all of the Defendants. 

A. Qualified Immunity

Sergeant Barrier and Deputy Heinrich’s assertion of qualified immunity requires us to answer two questions: First, do

the facts alleged show that Sergeant Barrier and Deputy Heinrich’s conduct violated a constitutional right? Second, was the

right Sergeant Barrier and Deputy Heinrich are alleged to

have violated clearly established such that a reasonable officer

would have understood that he was violating that right? See

Saucier v. Katz, 533 U.S. 194, 200-02 (2001); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987). We must review

the two steps of the qualified immunity inquiry in order. See

Motley v. Parks, 432 F.3d 1072, 1077-78 (9th Cir. 2005) (en

banc); see also Saucier, 533 U.S. at 201. 

“[A] public official is liable under § 1983 only if he causes

the plaintiff to be subjected to a deprivation of his constitutional rights.” Baker v. McCollan, 443 U.S. 137, 142 (1979)

(internal quotation marks omitted) (emphasis in original).

Therefore, to survive the first Saucier step, Galen must establish both that his bail was excessive in violation of the Eighth

Amendment and that Sergeant Barrier and Deputy Heinrich

actually and proximately caused his bail to be excessive. See

Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

1. Excessive Bail

We agree with the district court that Galen has not established a triable issue of fact regarding whether his bail was

unconstitutionally excessive because he failed to adduce evidence of the reason for or motive behind the Commissioner’s

enhancement of bail. 

The opening clause of the Eighth Amendment, “Excessive

bail shall not be required,” is one of the least litigated proviGALEN v. COUNTY OF LOS ANGELES 18327
sions in the Bill of Rights. See Richard S. Frase, Excessive

Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality” Relative to What?, 89 Minn. L. Rev.

571, 603 (2005). The Supreme Court has directly addressed

the Clause only three times since its adoption. See United

States v. Salerno, 481 U.S. 739 (1987); Carlson v. Landon,

342 U.S. 524 (1952); Stack v. Boyle, 342 U.S. 1 (1951).2 We,

too, have had few occasions to consider the Clause. See, e.g.,

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985).

Neither the Supreme Court nor we have held that the Clause

is incorporated against the States. See United States v. Scott,

450 F.3d 863, 866 n.5 (9th Cir. June 9, 2006), as amended.

We follow the Supreme Court in “assum[ing]” without deciding that the Clause is incorporated against the States. Baker,

443 U.S. at 144 n.3. 

In determining whether Galen’s Excessive Bail Clause

rights were violated, we look to Salerno. Salerno addressed a

constitutional challenge to the Bail Reform Act of 1984

(“BRA”), Pub. L. No. 98-473, 98 Stat. 1837, 1976-87 (codified at 18 U.S.C. § 3141 et seq.). The BRA authorized pretrial

detention for noncapital defendants and added protecting the

safety of others to the government interests relevant to bail

determinations, which federal law historically had limited to

preventing flight risk. See 18 U.S.C. §§ 3142(c)(1), (e). 

In Salerno, the district court had denied bail to alleged

mafia leaders to protect the public safety. 481 U.S. at 743-44.

The defendants brought a facial challenge to the BRA, asserting that the Excessive Bail Clause prohibited the state from

detaining them for a noncapital crime without a showing of

flight risk. Id. at 752. In upholding the BRA, the Court

explained that the Clause does not provide a right to bail. See

id. at 753. It went on to 

2

Individual Justices have interpreted the Clause in reviewing applications for bail pending appeal. E.g., Sellers v. United States, 89 S. Ct. 36

(1968) (Black, J.). 

18328 GALEN v. COUNTY OF LOS ANGELES
reject the proposition that the Eighth Amendment

categorically prohibits the government from pursuing . . . admittedly compelling interests [other than

preventing flight] through regulation of pretrial

release. . . . 

. . . . 

. . . The only arguable substantive limitation of the

Bail Clause is that the Government’s proposed conditions of release or detention not be “excessive” in

light of the perceived evil. Of course, to determine

whether the Government’s response is excessive, we

must compare that response against the interest the

Government seeks to protect by means of that

response. Thus, when the Government has admitted

that its only interest is in preventing flight, bail must

be set by a court at a sum designed to ensure that

goal and no more. Stack v. Boyle, supra. We believe

that when Congress has mandated detention on the

basis of a compelling interest other than prevention

of flight, as it has here, the Eighth Amendment does

not require release on bail. 

Id. at 753-55. 

[1] Salerno makes clear that the Excessive Bail Clause

does not bar the state from detaining even noncapital arrestees

without bail, or from considering interests other than flight

prevention in setting bail. But Salerno confirms that the

Excessive Bail Clause prevents the imposition of bail conditions that are excessive in light of the valid interests the state

seeks to protect by offering bail. Id. at 754. Salerno is thus

consistent with Stack, a pre-BRA case that found defendants’

bail to be constitutionally excessive because it had been “set

at a figure higher than an amount reasonably calculated to fulfill . . . . the purpose of assuring the presence of [the] defendant.” Stack, 342 U.S. at 5. Because the federal bail statute

GALEN v. COUNTY OF LOS ANGELES 18329
then in effect prohibited the state from considering interests

other than flight prevention in setting bail, the Excessive Bail

Clause required bail to be set in an amount designed to prevent flight, and no more. See id.; Salerno, 481 U.S. at 754. 

[2] To determine whether the Excessive Bail Clause has

been violated, we look to the valid state interests bail is

intended to serve for a particular individual and judge whether

bail conditions are excessive for the purpose of achieving

those interests. The state may not set bail to achieve invalid

interests, see Stack, 342 U.S. at 5; Wagenmann v. Adams, 829

F.2d 196, 213 (1st Cir. 1987) (affirming a finding of excessive bail where the facts established the state had no legitimate interest in setting bail at a level designed to prevent an

arrestee from posting bail), nor in an amount that is excessive

in relation to the valid interests it seeks to achieve, see

Salerno, 481 U.S. at 754. 

In California, bail determinations are regulated by a comprehensive statutory scheme. Penal Code section 1275 defines

the interests that judicial officers are to consider in setting

bail: 

(a) In setting, reducing, or denying bail, the judge

or magistrate shall take into consideration the protection of the public, the seriousness of the offense

charged, the previous criminal record of the defendant, and the probability of his or her appearing at

trial or hearing of the case. The public safety shall be

the primary consideration. 

In considering the seriousness of the offense

charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and

alleged threats to the victim or a witness to the crime

charged, the alleged use of a firearm or other deadly

weapon in the commission of the crime charged, and

18330 GALEN v. COUNTY OF LOS ANGELES
the alleged use or possession of controlled substances by the defendant.

Moreover, California law specifically authorizes judicial officers “to set bail in an amount that [they] deem[ ] sufficient . . .

to assure the protection of a victim . . . of domestic violence.”

Cal. Penal Code § 1269c. California law requires that noncapital defendants be offered bail. See Cal. Penal Code

§§ 1270.5, 1271. For noncapital defendants, “the court may

neither deny bail nor set it in a sum that is the functional

equivalent of no bail.” In re Christie, 92 Cal. App. 4th 1105,

1109 (Ct. App. 2001), as modified. 

California also regulates the procedure by which bail is set,

requiring an open hearing before a person arrested for any of

several serious crimes, including violations of section 273.5,

may be released on his own recognizance or on bail in an

amount either greater or lesser than the default amount for the

offense. Cal. Penal Code § 1270.1(a). Judicial officers setting

bail in an amount either greater or less than the default

amount must state the reasons for their decision on the record.

Id. § 1270.1(d). 

[3] To prevail on his claim that his bail enhancement violated the Excessive Bail Clause, Galen must show that the

Commissioner enhanced his bail for purposes unauthorized by

California law or that the amount of bail was excessive in

light of the valid purposes for which it was set. But Galen has

failed to produce any evidence regarding the reasons the

Commissioner enhanced his bail. The record establishes that

Deputy Heinrich spoke to an aide at the Bail Deviation Unit

and faxed the PCD to the Unit. Deputy Heinrich communicated a number of facts to the aide, including that Galen’s

fiancée feared for her safety and had been vague with sheriff’s

deputies; he believed the crime would likely continue if Galen

were released; and Galen was an attorney and could easily

post $50,000 bail. However, there is no evidence about which

information the aide provided to the Commissioner or what

GALEN v. COUNTY OF LOS ANGELES 18331
additional information the Commissioner may have received.

Nor is there any evidence regarding the Commissioner’s decisionmaking process, including the factors he considered in

making his bail determination and the factors he ultimately

relied on to enhance Galen’s bail. There is nothing in the

record to indicate that, other than not holding a hearing, the

Commissioner failed to follow California laws governing the

setting of bail, see Cal. Penal Code §§ 1269c, 1275, and so we

presume that he did comply with those laws. 

[4] Because Galen has offered no evidence that would tend

to show that the Commissioner enhanced Galen’s bail for an

improper purpose or that his bail was excessive in light of the

purpose for which it was set, he has failed to meet his burden

for withstanding summary judgment. See Salerno, 481 U.S. at

754; Wagenmann, 829 F.2d at 213. We must disagree, however, with the district court’s conclusion that as a matter of

law Galen’s “[b]ail was not excessive,” Galen, 322 F. Supp.

2d at 1053, for the very same reason: There is no evidentiary

basis in the record to conclude one way or the other whether

Galen’s bail was “excessive” under California law or the Constitution. We also disagree with the district court’s suggestion

that the fact that Galen posted bail compels a finding that his

bail was not excessive. See id. at 1055. This conclusion misapprehends the concept of constitutionally excessive bail as

developed by the Supreme Court and in our case law. The

plain meaning of “excessive bail” does not require that it be

beyond one’s means, only that it be greater than necessary to

achieve the purposes for which bail is imposed. See Salerno,

481 U.S. at 754; Jennings v. Abrams, 565 F. Supp. 137, 138

(S.D.N.Y. 1983). 

[5] The Commissioner’s failure to hold a hearing in open

court before enhancing Galen’s bail and to state his reasons

for the enhancement on the record, as required by California

Penal Code section 1270.1, does not excuse Galen from his

burden of demonstrating in this § 1983 action that his bail was

excessive. We will not assume that Galen’s bail was excessive

18332 GALEN v. COUNTY OF LOS ANGELES
simply because the state failed to comply with a self-imposed

procedural requirement, particularly where, as here, Galen

never requested a hearing before the Commissioner or challenged his bail enhancement in any way before being released

from custody.3 Nor do we accept Galen’s argument that procedural violations of California bail law suffice to establish a

deprivation of a federal right. Section 1983 requires Galen to

demonstrate a violation of federal law, not state law. See, e.g.,

Sweaney v. Ada County, 119 F.3d 1385, 1391 (9th Cir. 1997).4

We also reject Galen’s argument that flight risk is the only

factor the Commissioner was allowed to consider in setting

bail, and, accordingly, that his bail was excessive because it

exceeded the amount necessary to prevent flight in light of his

ties to the community and partial custody of his two schoolage children. California law not only authorized, but required,

the Commissioner to “take into consideration the protection of

the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of

his or her appearing at trial or hearing of the case,” Cal. Penal

Code § 1275(a), and “to set bail in an amount that he . . .

deems sufficient . . . to assure the protection of a victim . . .

of domestic violence,” id. § 1269c. Salerno holds that these

non-flight-related considerations are permissible and therefore

forecloses Galen’s argument that his bail was unconstitutionally excessive to the extent it was designed to serve interests

other than prevention of flight. 481 U.S. at 754. 

Galen’s contentions that his bail was excessive simply

because it was 2000 percent higher than the default amount

for section 273.5 violations, and greater than the default

amount for other, more serious crimes, are likewise unavailing. Excessiveness cannot be determined by a general mathe3The County does not contend that Galen has waived or failed to administratively exhaust his civil rights/excessive bail claim by failing to challenge his bail at the time it was set. 

4Galen has not raised a procedural due process argument before us. 

GALEN v. COUNTY OF LOS ANGELES 18333
matical formula, but rather turns on the correlation between

the state interests a judicial officer seeks to protect and the

nature and magnitude of the bail conditions imposed in a particular case. See Salerno, 481 U.S. at 754. Without examining

the relevant state interests, courts cannot determine whether

bail conditions are constitutionally excessive. See id. Thus in

In re Christie, the California Court of Appeal remanded to the

trial court to articulate specific grounds for its decision to

impose bail of 1000 percent of the default amount because the

record was insufficient to determine what factors the trial

court had considered and therefore whether bail was excessive. 92 Cal. App. 4th at 1109-11. 

Galen relies heavily on Wagenmann, but Wagenmann does

not bear the weight Galen places on it. There, the plaintiff met

his burden of demonstrating that his bail was set for improper

purposes. Law enforcement personnel had prevented Wagenmann from contacting his daughter in the days preceding her

wedding to the son of a locally powerful family by arresting

him, arranging for excessive bail to keep him imprisoned, and

ultimately confining him in a mental institution. Id. at 201-05.

A jury found by a preponderance of the evidence that a police

officer caused Wagenmann’s bail to be unconstitutionally

excessive by arranging for bail to be set at $500 when he

knew Wagenmann had only $480 on hand, and awarded

Wagenmann damages under § 1983. Id. at 199, 204. On

appeal from the district court’s denial of defendants’ motions

for judgments notwithstanding the verdicts and for new trials,

the First Circuit held that in light of the trial court’s jury

instruction that the purpose of bail was to ensure the presence

of the accused at future proceedings, the evidence supported

the jury’s finding that bail was excessive. Id. at 213. 

Unlike here, in Wagenmann there was sufficient evidence

from which a jury could and did find that the sole purpose in

setting bail was to prevent Wagenmann from securing his

release, not to assure his presence at future court proceedings

or to protect the public safety. This was not a “compelling

18334 GALEN v. COUNTY OF LOS ANGELES
interest,” Salerno, 481 U.S. at 754, that the state could seek

to achieve by imposing onerous bail conditions. Thus,

Wagenmann’s jury “was certainly warranted in finding that

bail—in an amount engineered purposefully to guarantee continued confinement—was excessive.” Wagenmann, 829 F.2d

at 213. 

2. Causation

[6] Even if Galen could establish that his bail was excessive, the district court correctly concluded that he cannot demonstrate that Sergeant Barrier or Deputy Heinrich were the

actual and proximate cause of his bail enhancement, as he is

required to do by Baker, 443 U.S. at 142, and Leer, 844 F.2d

at 634. California vests judicial officers with the exclusive

authority to enhance or reduce bail. See Cal. Penal Code

§ 1269c. Pursuant to traditional tort law principles of causation, which we apply to § 1983 claims, see Van Ort v. Estate

of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996), a judicial officer’s exercise of independent judgment in the course of his

official duties is a superseding cause that breaks the chain of

causation linking law enforcement personnel to the officer’s

decision, see Hoffman v. Halden, 268 F.2d 280, 296-97 (9th

Cir. 1959), overruled in part on other grounds by Cohen v.

Norris, 300 F.2d 24, 29-30 (9th Cir. 1962); Restatement (Second) of Torts § 440. Thus in Walden v. Carmack, the Eighth

Circuit held that a sheriff could not be liable under § 1983 for

violating the plaintiffs’ right to be free from excessive bail,

even if he recommended a bail amount to the judicial officer

who set plaintiffs’ bail, because “setting the bail bond is

entirely at the discretion of the presiding judge.” 156 F.3d

861, 874 (8th Cir. 1998). 

[7] Sergeant Barrier and Deputy Heinrich can be liable for

Galen’s allegedly excessive bail only if they prevented the

Commissioner from exercising his independent judgment. See

Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir. 1981), as

amended (police officers may be liable for a falsely imprisGALEN v. COUNTY OF LOS ANGELES 18335
oned arrestee’s continued detention after a prosecutor charges

the arrestee only if they cause the prosecutor to act contrary

to his independent judgment); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1067-68 (9th Cir. 2004) (applying

Smiddy). Thus, to withstand summary judgment, Galen must

show that Sergeant Barrier or Deputy Heinrich deliberately or

recklessly misled the Commissioner, and that his bail would

not have been unconstitutionally excessive but for the officers’ misrepresentations. Cf. Hervey v. Estes, 65 F.3d 784,

789 (9th Cir. 1995), as amended (a § 1983 plaintiff alleging

that a peace officer improperly procured a search warrant

must establish both that the officer made deliberately or recklessly false statements and that “without the dishonestly

included or omitted information[ ] the magistrate would not

have issued the warrant.”); Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 463 (9th Cir. 1994). 

Galen contends that Sergeant Barrier and Deputy Heinrich

deliberately or recklessly misled the Bail Deviation Unit with

a number of false representations. These include: (1) Galen’s

fiancée feared for her safety; (2) she was being very vague

with deputies; (3) Heinrich and Barrier knew she was afraid

of Galen; (4) the offense was likely to continue; (5) Galen

could easily post $50,000 bail; (6) Galen’s fiancée required

medical treatment for her injuries; and (7) Galen had waived

his bail deviation phone call. Each of these representations,

however, is either true or was not made to the Bail Deviation

Unit. Moreover, there is no evidence that Sergeant Barrier or

Deputy Heinrich conveyed these statements to the Commissioner. 

[8] Sergeant Barrier did nothing more than recommend an

enhancement during her conversation with Deputy Bausmith.

She did not determine the amount of the requested enhancement, and she had no contact with the Bail Deviation Unit.

With respect to Deputy Heinrich, there is no evidence that any

of the allegedly false representations Galen claims he made

reached the Commissioner. Moreover, most of the representa18336 GALEN v. COUNTY OF LOS ANGELES
tions are true, or a reasonable person in Deputy Heinrich’s

position would have believed them to be true based on the

information he received from fellow members of the Sheriff’s

Department. Galen’s fiancée had been vague with deputies

investigating Galen’s abuse, who believed that she feared for

her safety. Deputy Bausmith told Deputy Heinrich that

Galen’s abuse was likely to continue. And although Deputy

Heinrich did not have first-hand knowledge of Galen’s fiancée’s concerns or of Galen’s financial resources, it was reasonable to assume that she was afraid of Galen and that Galen

could easily post $50,000 bail. The remaining two allegedly

false representations, that Galen’s fiancée needed medical

treatment for her injuries and that Galen had waived his bail

deviation phone call, appeared on the Bail Deviation Form,

which was not provided to the Bail Deviation Unit or the Commissioner.5

 Galen therefore cannot establish that Sergeant

Barrier or Deputy Heinrich made deliberately or recklessly

false statements to the Bail Deviation Unit, much less to the

Commissioner, or that such statements were a but-for cause

of the Commissioner’s decision to enhance Galen’s bail. 

Lacking evidence that Sergeant Barrier or Deputy Heinrich

misled the Commissioner, Galen emphasizes their desire to

have his bail set at a level high enough to prevent him from

posting bail. But Sergeant Barrier and Deputy Heinrich could

not be the actual and proximate cause of Galen’s bail

enhancement, no matter how much they desired such a result,

unless they recklessly or intentionally misled the Commissioner. See Hervey, 65 F.3d at 788-89. Galen also argues that

Sergeant Barrier and Deputy Heinrich’s conduct here was

similar to that of the defendant police officer in Wagenmann,

where the First Circuit held that the plaintiff had adequately

established causation. In Wagenmann, however, “a plenitude

of evidence was offered to suggest [the police officer’s] intimate involvement in the bail decision” and to indicate that the

police officer “help[ed] to shape, and exercis[ed] significant

5Only the PCD was faxed to the Unit. 

GALEN v. COUNTY OF LOS ANGELES 18337
influence over, the bail decision.” 829 F.2d at 211-12. The

police officer spoke directly to the bail commissioner, and the

record included evidence of that conversation. Id. The evidence thus supported the conclusion that the police officer

recklessly disregarded the truth and “shaded [the information

he provided the judicial officer] to bring about the outcome

which the arresting officer coveted.” Id. at 212. Here, in contrast, there is no indication that Sergeant Barrier or Deputy

Heinrich intentionally or recklessly misled the Commissioner

or exerted any influence over his decision. 

[9] Galen’s reliance on United Steelworkers v. Phelps

Dodge Corp., 865 F.2d 1539, 1546 (9th Cir. 1989) (en banc),

is likewise misplaced. In Phelps Dodge we addressed whether

metalworkers could survive summary judgment on their

§ 1983 claim against their employer, state and local governments, and law enforcement officials for conspiracy to violate

their right to be free from excessive bail during a strike. Id.

at 1540, 1547. Our emphasis on the defendants’ stated intent

to “ ‘keep [the strikers] off the streets’ ” was appropriate

because the plaintiffs alleged a conspiracy between a corporation and law enforcement officials. Id. at 1546. In contrast, in

a § 1983 suit where conspiracy is not an issue, intent is not

directly relevant to the causation inquiry. Therefore, the district court did not err in concluding that Galen failed to establish a genuine issue of material fact as to his claim that

Sergeant Barrier and Deputy Heinrich caused his bail to be

unconstitutionally excessive. 

3. Clearly Established

[10] We further agree with the district court that even if

Galen could demonstrate triable issues of fact as to whether

his bail was excessive and whether Sergeant Barrier or Deputy Heinrich caused the constitutional injury, the law at the

time was not clearly established such that a reasonable peace

officer in Sergeant Barrier or Deputy Heinrich’s position

would have understood that his conduct violated the Eighth

18338 GALEN v. COUNTY OF LOS ANGELES
Amendment. In deciding whether a right was clearly established, we look to whether the alleged constitutional violation

was obvious; whether there were legal authorities declaring

the conduct at issue unconstitutional; and whether other

sources of regulatory or legal authority sanctioned the challenged practice. See Wilson v. Layne, 526 U.S. 603, 615-17

(1999). Galen bears the burden of proving that his allegedly

violated rights were clearly established. See Davis v. Scherer,

468 U.S. 183, 197 (1984). 

[11] It was not obvious that Galen’s Excessive Bail Clause

rights would be violated by the imposition of $1,000,000 bail,

even assuming his bail was enhanced to prevent him from

posting bail. At the time of the alleged violation, no federal

legal authority had held that bail was unconstitutionally

excessive in the circumstances presented here, where the public safety, protection of a domestic violence victim, and the

seriousness of the crime were all in play. Therefore, a reasonable peace officer would not have understood that recommending a bail enhancement on the additional basis of

making it more difficult for Galen to post bail would have

violated the Eighth Amendment. 

[12] In addition, Sergeant Barrier and Deputy Heinrich’s

conduct was reasonable and complied with California law and

local bail procedures. California law specifically directs a

peace officer to request a bail enhancement if the “peace officer has reasonable cause to believe that the amount of bail set

forth in the schedule of bail for that offense is insufficient . . .

to assure the protection of a victim . . . of domestic violence

. . . .” Cal. Penal Code § 1269c. The County’s Jail Manual

provides that requests for bail enhancements should go

through the Bail Deviation Unit, which serves to process such

requests and present them to a bail commissioner for his discretionary evaluation. L.A. County, L.A. Station Jail Manual,

at XVII-1. In this context, state law and local regulations

sanctioned Sergeant Barrier and Deputy Heinrich’s conduct.

See Wilson, 526 U.S. at 617 (emphasizing that law enforceGALEN v. COUNTY OF LOS ANGELES 18339
ment policies sanctioned the challenged conduct in holding

that the right at issue was not clearly established). Because the

law regarding excessive bail and peace officers’ liability for

recommending bail enhancements was not clearly established,

Sergeant Barrier and Deputy Heinrich are entitled to qualified

immunity. See Saucier, 533 U.S. at 202. 

B. Attorneys’ Fees

The district court properly awarded attorneys’ fees to the

County for Galen’s post-discovery litigation of his Monell

claim. But, the district court abused its discretion when it held

that Galen’s continuing litigation of his claims against the

individual defendants was frivolous and awarded attorneys’

fees to them for the post-discovery period. 

On October 23, 2003, the County filed its motion for summary judgment. The district court had set a discovery cut-off

date of November 3, 2003, by which time Galen had deposed

Sergeant Barrier and Deputy Heinrich and obtained all the

documents from the County that he would obtain. Galen then

filed an opposition to the County’s motion and continued litigating through January 2004, when the district court granted

summary judgment. The County then moved for attorneys’

fees. The district court concluded that by November 2003,

when Galen had completed discovery, he should have known

that Sergeant Barrier and Deputy Heinrich had not caused his

bail to be unconstitutionally excessive, that Sergeant Barrier

and Deputy Heinrich were entitled to qualified immunity, and

that there was no evidence to support his Monell claim. The

district court awarded the County attorneys’ fees of $23,400

for the post-discovery period, which included litigation of the

County’s motions for summary judgment and attorneys’ fees.

[13] A district court may award attorneys’ fees pursuant to

42 U.S.C. § 1988 to a prevailing civil rights defendant if the

plaintiff’s action was “unreasonable, frivolous, meritless, or

vexatious.” Vernon v. City of Los Angeles, 27 F.3d 1385,

18340 GALEN v. COUNTY OF LOS ANGELES
1402 (9th Cir. 1994) (internal quotation marks omitted). An

action becomes frivolous when the result appears obvious or

the arguments are wholly without merit. See Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also

Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (per curiam). A

defendant can recover if the plaintiff violates this standard at

any point during the litigation, not just at its inception. See

Christiansburg Garment Co., 434 U.S. at 422. 

[14] After the completion of discovery in November 2003,

it had become obvious Galen lacked direct evidence demonstrating that Sergeant Barrier or Deputy Heinrich caused his

bail to be unconstitutionally excessive or that a reasonable

peace officer in the shoes of Sergeant Barrier or Deputy Heinrich would have understood his conduct to violate the Excessive Bail Clause. Galen had failed to uncover evidence

indicating that Sergeant Barrier or Deputy Heinrich deliberately or recklessly provided false information to the Bail

Deviation Unit. Galen also had not obtained evidence of the

information the Commissioner received or the factors he considered in enhancing Galen’s bail. For that reason, summary

judgment was appropriate. But, that Galen lost at summary

judgment does not render his case per se frivolous, unreasonable, or without foundation. In the absence of controlling

Ninth Circuit or Supreme Court authority, and given the First

Circuit’s decision in Wagenmann, which lent support to his

argument, Galen’s perseverance in his suit was not unreasonable. See, e.g., Karam v. City of Burbank, 352 F.3d 1188,

1195 (9th Cir. 2003) (“A case is less likely to be considered

frivolous when there is very little case law directly apposite.”

(internal quotation marks omitted)). In Taylor AG Industries.

v. Pure-Gro, 54 F.3d 555, 563 (9th Cir. 1995), we considered

what it means for a case to be “wholly without merit.” There,

although the relevant law had been clearly established by the

Supreme Court and seven other courts of appeal, we held that

plaintiff’s claim was not “wholly without merit” and declined

to award attorneys’ fees. See id. Similarly, because we conclude that the law on excessive bail was not clearly estabGALEN v. COUNTY OF LOS ANGELES 18341
lished at the time of Galen’s claim, Galen did not have reason

to know that his case was wholly without merit. 

[15] The district court did not abuse its discretion, however,

in holding that Galen’s continuing litigation of his Monell

claim after the completion of discovery was frivolous.

Galen’s complaint alleged that the County “knowingly maintained, enforced and applied a policy and practice of regularly

departing from the mandates and requirements of” California

bail law. To prevail on this claim, Galen was required to

establish that the County had a deliberate policy, custom, or

practice that was the “moving force” behind the constitutional

violation he suffered. Monell, 436 U.S. at 694-95; see also

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (a Monell

plaintiff must show “a direct causal link between a municipal

policy or custom and the alleged constitutional deprivation”).

The County may be liable if it fails to properly train peace

officers and the “failure to train amounts to deliberate indifference to the rights of persons with whom the [officers] come

into contact.” City of Canton, 489 U.S. at 388. 

[16] During discovery Galen failed to uncover any evidence indicating that the County had a policy or practice

designed to ensure or resulting in the setting of excessive bail.

Nor did he uncover any evidence of failure to train officers in

proper bail setting procedures. To the contrary, the County

Jail Manual, which directs peace officers to seek bail

enhancements through the Bail Deviation Unit, suggests that

the County’s policies were consistent with state bail law. That

in this particular case the Commissioner did not hold a hearing before enhancing Galen’s bail or state his reasons for the

enhancement on the record, as required by California Penal

Code section 1270.1, is not sufficient to establish that the

County maintained a policy or practice leading to Excessive

Bail Clause violations. Based on the evidence Galen acquired

during discovery, it was obvious that he could not meet his

burden of demonstrating that the County’s deliberate conduct

was the moving force behind the alleged constitutional viola18342 GALEN v. COUNTY OF LOS ANGELES
tion. See Monell, 436 U.S. at 694-95; see also Bd. of County

Comm’rs v. Brown, 520 U.S. 397, 404 (1997). 

IV. Conclusion

Based on the foregoing, we AFFIRM the district court’s

grant of summary judgment. We AFFIRM the award of attorneys’ fees to the County, REVERSE the award of attorneys’

fees and REMAND to the district court to apportion the attorneys’ fees award to conform with our holding. The parties

shall bear their own costs on appeal. 

AFFIRMED IN PART; REVERSED IN PART AND

REMANDED.

GALEN v. COUNTY OF LOS ANGELES 18343