F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S A N T I A G O I B A R

R A R I V E R A , individually and as class representative, Plaintiff-Appellant

,

v

.

C O U N T Y O F L O S A

N G E L E S ; L O S A N G E L E S C O U

N T Y S H E R

I F F ’ S D E P A R T M E N T ; C O U

N T Y O F S A

N B E R N A R D I N O ; S A N B E R N A R D I N O C O U N T Y S H E R

I F F ’ S D E P A R

T M E N T , Defendants-Appellees

. N o. 11-57037

D.C. No. 2:10-cv-01861- PSG-DTB

OPI NI ON

A ppeal from the United States District Court for the Central District of California Philip S. Gutierrez , District J udg e, Presiding

Arg ued and Submitted May 8, 2013—Pasadena, California

F iled March 12, 2014

B efore: Diarmuid F . O’Scannlain, Richard A. Paez

, and Sandra S. I kuta, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Partial Concurrence and Partial Dissent by J udg e PaezR I V E R A V

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SUMMARY *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment in an action in which p laintiff, S a n tiag o Rivera, alleg ed multiple constitutional and state law violations arising o ut o f his mistaken arrest and month-long d e tention based on a 1989
warrant which had been issued for another per s o n, also named Santiag o Rivera.

The p anel rejected Rivera’s claim that L os Ang eles County violated the F ourth Amendment by issuing the 1989
warrant without including a number corresponding to the true subject’s fing erprints. The panel he l d that the warrant sati s f ied the particularity r equirement b ecause it contained b oth the subject’s name and a detailed phy sical description

. The panel held that even if the F ourth Amendment did require L os Ang eles County to include more detailed information in the 1989 warrant, Rivera failed to show that the County h ad a policy or custom of failing to do so.

The panel held that San B e rnardino sheriff’s deputies

were not unreasonable in believing that Ri v e ra was the subject of the w arrant at the time of arrest g iven that the name and date of birth on the warrant matched Rivera’s and the h eig ht and weig ht descriptors associated with the warr a n t were within one inch and ten pounds of Rivera’s true siz e.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R I V E R A V

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The panel h eld that Rivera’s d etention did not violate the Due Process Clause of the F ourte e nth Amendment. The panel determined that Rivera h a d not presented any evidence that either L os Ang ele s C ounty or San B ernardino County knew that Rivera was not the true subject of the warrant. Nor did the c ircumstances of this ca s e sug g est that f urther investig ation in t o R ivera’s identity was required, especially
g iven that he had been provided procedural protect i o ns a nd
court access.

F inally

, the panel affirmed the district court’s dismissal o f Rivera’s state law claims on the basis of s t a t e law statutory immunities.

Concurring in part a n d dissenting in part, J udg e Paez stated that althoug h he ag reed w ith the majority that Rivera’s F ourth A mendment claims ag ainst L o s A ng eles County a nd San B ernardino County
, his F ourteenth Am endment c laims
ag ainst San B ernardino County
, and his sta t e law c laims

a ga i n s t both counties must fail, he disag reed with the majority ’s analy sis of the due process claim i n t h is case. I n J udg e Paez ’s view, Rivera raised a g enuine issue o f material fact a s to w hether L os Ang eles County deprived him o f liberty without due process of law by failing to investig ate his claims of innocence.R I V E R A V

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COUNSEL

Donald W

. Cook, L o s Ang eles, California, arg ued the cause and filed th e briefs for the plaintiff-appellant. W ith h im on the briefs was Robert Mann, L os Ang e les, California.

Scott E

. C aron, L awrence B each A llen & Choi, P.C., Glendale, California, arg ued the cause and filed the brief for the C ounty of L os Ang eles and the L os Ang eles County Sheriff’s Department. W ith him on the brief was Michael D

. Allen, L awrence B e a ch Allen & Choi, P.C., Glendale, California.

J ames H

. Thebeau, Deputy County Counsel, San B e rnardino, California, arg ued the cause a nd filed the brief for the County of San B ernardino and the San B erna r d i n o County Sheriff’s Department.

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must deal with a case of mistaken identity a rising out of the arrest and detention of a person named o n a warrant not intended to describe him.

I

A

I n J u l y 1985, a L os Ang e les Superior Court issued an arrest warrant for “Santiag o Riv er a

. ” On J une 18, 1989, officers o f the Montclair Police Department arrested Santiag oR I V E R A V

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Rivera, the p laintiff in this case, o n the 1985 warrant. F ing e rprint a

naly sis revealed, however, that the Santiag o Rivera who w as arrested (“Rivera” or “the plaintiff”) was not the Santiag o Rivera soug ht by the warrant (“the subject of the warrant”). D ue to the ri s k of such mistaken identification recurring

, the municipal court i s s u ed Rivera a judicial clearance form, which indicated that he w as n ot the subject o f the warrant.

On J uly 6, 1989, the court reissued the warrant b u t did not indicate that Rivera had been determined not to be its subject. The 1989 warrant described the s u b j e c t as a Hispanic male with brown hair and brown ey es, 5’5” tall, and 180 pounds in weig ht. I t included a date of birth matchin g R i v e ra’s a nd
sug g ested that the subject d id not have visible scars or tattoos.

On March 7, 2009, d e puties from the San B ernadino Sheriff’s Department stopped a car in wh ich Rivera was traveling because it lacked a license plate. U s ing Rivera’s identification to run a routine warrant check, the deputies learned of the 1989 warrant f or a “Santiag o Rivera” with the

same date of birth as the plaintiff. Rivera informed one of the deputies that he was not the w a r rant’s subject a nd had been issued a judicial clearance form after the e r r oneous 1989
arrest. W hen asked to produce that form, ho we v e r , Rivera stated that he could not locate it.

Upon the deputies’ request, dispatch informed them that the warrant was active and provided the phy sical d escription from the warrant. Rivera’s driver’s license described him a s 5’6” tall and as weig hing 170 pounds. B elieving Rivera to be the subject o f the warrant, the deputies arrested him and took him to a detention ce n ter in San B ernadino, where his fing erprints were taken. San B ernadino officials transferredR I V E R A V

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c u s t ody o f the plaintiff to the L os Ang eles Sheriff ’s Department two day s later.

On the n ex t morning

, Rive r a a p peared in a L os Ang eles Superior Court. Represented by a p ublic defender, he did not t e l l t h e judg e that he was not the subject of the warran t

. A t his nex t hearing

, on March 24, 2009, Rivera arg ued t h a t h e

was n ot the subject of the warrant. B ecau se the court could
not determine whether he was the subject of the w a r r a n t at that time, the court remanded Rivera to c ustody until April 7, 2009. As of Ap r i l 7
, 2 0 0 9, the staff at the L os Ang eles arch ives h ad still b een unable to locate the documents that would contain the true subject’s fing erprints. The court ag ain remanded Rivera to c u stody while the search f o r t h e proper documents continued. Two day s later, the court released the plaintiff after it was determined that his f i n ge r prints did not match the fing erprints of the true subject of the warrant.

T o prevent mistaken identity in the future, the court issued the plaintiff a new judicial cleara n ce form and added the plaintiff’s photog r aph and fing erpri n t s to the case f ile. The court also reissued the warra nt with the true subject’s middle name, which differs from Rivera’s middle name.

B

I n 2010, Rivera sued L os Ang e le s County
, the L os Ang eles County Sheriff ’s Department, San B ernadino County
, and the San B ernadino County Sheriff’s Department (“the Counties”), alleg ing violations of the F ourth a nd F ourteenth Am endments, violation of the B ane A ct (California Civil Code § 52.1), and common law fal se imprisonment.R I V E R A V

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The district court g ranted the Counties’ motions for
summary judg ment o n a l l o f R ivera’s claims. The district
court also denied his motion for reconsideration. Rivera timely appealed.

I I

Rivera asserts that the district court erred in rejecting his claims that t h e C o unties violated his F o urth and F ourteenth Amendment r i gh t s and that h e can r ecover under 42 U .S.C. § 1983. His complaint a lleg ed multiple constitutional violations, all of which the district court rejected: (1) failure
to include b iometric identifiers i n the 1989 w arrant, (2) unlawful arrest based on the 1989 warrant, a n d (3) illeg al detainment after arrest.

A

Rivera f irst arg ues that L os Ang eles County violated the F ourth Amendment by is s u i n g the 1989 warrant without includi n g a number c o r responding to the true subject’s fing erprints. 1 The F ourth Amendment requires t h at any warrant “particularly describe

. . . the p ersons o r thing s to be seiz ed.” U.S. Const. amend I V. Rivera’s arg ument amounts to a claim that the part i c u larity requirement of the F ourth Amendment f

o r b a d e L os A ng eles County from issuing the warrant without fing erprint information.

1 Riv era d escrib es h is claim as ch allen g in g th e issu an ce o f th e w arran t rath er th an th e su f

f icien cy o f th e w arran t t o p e r m i t arrest. W e assu m e,

a rg u en d o , th at R iv era m ay state a claim u n d er § 1 9 8 3 ag ain st L o s A n g eles Co u n ty f o r t h e i ssu an ce o f an in s u f

f icien tly particu lar w arran t ev en th o u g h th e w arran t w as issu ed b y a j u d g e.R I V E R A V

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1

I n United States v. Espinosa
, 827 F .2d 604 ( 9 t h C ir. 1987), we evaluated a warrant under the particularity requirement. The subject of that warrant was d escribed as “a

m a le L atin, name unknown, referred to in affidavit a s J o h n Doe # 1

. . . approx imately 35 y e ars of ag e , 5 ’ 8”/5’10”,
approx imately 200 p ounds w ith black hair a n d b lack full beard.” Id. a t 6 0 7

. Despite the omission o f the subject’s
name, we held that such description sufficed under the F ourth Amendment. Id. at 611. A warrant containing the subject’s

sex , race, hair color, as w ell as approx im a t e h eig ht, weig ht, and ag e, satisfie d t h e particularity requirement when it was

a ccompanied b y an a ffidavit listing places that the subje ct mig ht be found. See id. I t follows that a warrant containing the subject’s n ame , sex , rac e , h air color, eye color

, and d ate of birth (rather than approx imate a ge )

, in addition to approx imate heig ht and w e i g h t , is sufficiently particular, even if it does not list places that the subject mig ht be found.

Confirming such analy sis, other circuits have held that the inclusion o f the subject’s n ame alone satisfies the particularity requirement. Rejecting the contention that the F ourth Amendment “impose[ s] string ent requirements on h o w warrants must describe their intended subjects,” the Seventh Circuit has e x pressly noted that “an a rrest warrant t h a t correctly n ames the person to be arrested is [ g enerall y ] considered cons titutionally sufficient and n e ed not c ontain
any a dditional identify ing information.” W hite v. Olig

, 56 F .3d 817, 819 (7th Cir. 1 995); see a lso Po w e v

. City of Chicago

, 664 F .2d 639, 6 45 (7th Cir. 1981). The F ifth Circuit has also recog niz ed th e g eneral rule that “the inclusion of the name of the person to be arrested o n the
arrest warrant c onstitutes a sufficient description to satisfy theR I V E R A V

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fourth amendment requirement that the person to be seiz ed be d e s c ribed with particularity .” W anger v. Bonner
, 621 F

. 2 d 675, 682 (5th Cir. 1980).

Thus, the 1989 warrant sati s f ied the particularity requirement because it contained both the subject’s name a nd

a d e t ailed phy sical description. That the plaintiff was erroneously arrested based o n the warrant simply d oes not affect whether the warrant itself satisfied the particularity requirement.

2

Moreover, mu n i cipalities, including counties and their sheriff ’ s departments, can only b e liable under § 1983 if an unconstitutional action “ implements or ex ecutes a p olicy statement, ordinance, reg ulation, or decision officially adopted a nd promulg ated by that body ’s officers.” Monell v

. Dep’t of Soc. Servs. o

f City of New Y

ork

, 4 3 6 U.S. 658, 690 (1978). A municipal defendant is liable o n ly “where the entity ’s policies evince a ‘delibera t e i ndifference’ to the constitutional rig ht a

nd are the ‘moving force behind the constitutional violation.’” E d g erly v. City and Cnty. of San Francisco , 599 F .3d 946, 960 (9th Cir. 2010).

Even if the F ourth Amendment d id req u ire L os Ang eles County to include more deta i l e d i nformation in the 1989

w a r r a n t i n o r d er to avoid the risk of repeat e d misidentification, Rivera would have to show that L os Ang eles County had a policy o r c u s t o m of failing to do so. This Rivera has not done. I n fact, L o s Ang eles County h ad

a policy of including an “ex oneration” ent r y t h a t identifies
any one mistakenly arrested o n the war r a n t i n the p ast. That officials apparently failed to implement that policy properlyR I V E R A V

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in this one instance is not sufficient for L os Ang eles County
to be liable. A sing le instance is not sufficient to show that a “practice is so widespread as to have the force of law.” Bd. of Cnty. Comm’rs o

f Bryan Cnty. v. Brown
, 520 U.S. 397, 404 (1997).

B

Rivera a l s o arg ues that San B e rnadino sheriff’s deputies violated the F ourth Amendment when they arrested him. The deputies had probable cause to arrest the true su b j ec t o f the
warrant but mistakenly believed that Rivera was that person. I n such cases, the question is whet h e r t h e a rresting officers had a g ood faith, reasonable b e lief that the a rrestee was the subject of the warrant. See Hill v. California , 401 U.S. 797, 80 4 (1971) (“[ S] ufficient probability

, not c ertainty

, is the touchstone of reasonableness u nd e r the F ourth A mendment and on the record before us the o fficers’ mis t a k e w a s understandable a

nd the a rrest a r easona

b le response to the situation facing them at the time.”).

On the undisputed factual record, the deputies were not unreasonable in believing t hat Rivera was the subject of the
warrant at the time o f arrest. The name and date of birth on the warrant matched Rivera’s e x actly

. The heig ht and w eig ht descriptors associated with the warrant, althoug h not matching Rivera ex ac t l y , w ere within one inch and ten pounds of Rivera’s true siz e. See id. at 803–04 & n.6 ( ruling that the officers reasonably concluded that the a rrestee was the subject of the warrant d espite a d i ff er e n ce of two inches and ten pounds).

Rivera’s statement th a t h e had been issued a judicial clearan c e f

orm but c o uld not locate it did not make theR I V E R A V

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officers’ b elief unreasonable. A s the Supreme Court has

ex p ressly recog niz ed, police a re r igh t to be wary when suspects claim mistaken identity

. See id. at 803 (“That person claimed h e was Miller, n o t H i l l. B ut aliases and false identifications are not uncommon.”).

The deputies’ belief that Rivera was the true subject of the
warrant w as not u nreasonable u nder the F ourth Amendment.

C

Rivera also challe n g e s his detainment after arrest under both the F ourth Amendment and the F ourteenth Amendment. P r e c e d e n t d e m o n s t r a t e s , h o w e v e r , t h a t p o s t

- a r r e s t incarceration is analy

z ed u nder the F ourteenth A mendment alone. See Baker v

. McCollan

, 443 U.S. 137, 145 (1979) (assuming arguendo the ability to state a due pr ocess claim f or incarceration “pursuant to a valid warrant in the face of repeated protests of innocence”); Lee v. City of Los Angeles

, 250 F .3d 668, 683–85 (9th Cir. 2001) ( s e p arately analy zing the initial arrest under the F ourth A m e n dment a nd the postarrest incarceration under the F ourteenth Amendment).

1

I n arg uing that his incarceration violated the F ourteenth Amendment, Rivera relies chiefly on our decision in F a irley

v. Luman
, 2 8 1 F .3d 913 (9th Cir. 2002). I n F a irley

, the plaintiff, J ohn, had b een detained for twelve day s “without
any procedural safeg

uard in p lace to verify the w arrant he

was detained on was his and in the face of his r e p e ated
p rotests of innocence.” Id. at 918. The Fairley co u r t emphasiz ed that J ohn had b e e n d e tained on a warrant, the subject of which was named “J oe” and differed f rom J ohn inR I V E R A V

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weig ht by 6 6 pounds, despite the defendants’ a wareness that J ohn had a twin brother. Id. at 915. J ohn was never broug ht before a judg e to assert his claim of mistaken identity

. On such facts, we h eld “there was sufficient evidence fo r a reasonable jury to find t h at J o hn suffered a constitutional deprivation under the F ourteenth Amendment.” Id. at 917.

Rivera’s reliance o n Fairley is misplaced. Cases, like Fairley

, h olding that an incarceration based on mistaken identity violate d t he Due Process Clause are readily disting uishable from this case. They involved circumstances that mig ht alert the defendants to a mistake of identity

, withh o l d i n g o f a judicial f orum f or raising a claim o f mistaken identity , or both.

2

The Supreme Court h as s u ggested that incarceration based on mistaken identity mig ht v iolat e t h e Due Process Clause in some circumstances. I n Baker v. M c Co l lan

, 443 U.S. 137, 140–41 (1979), a warrant was i s s u e d for “L innie McCollan” because the true subject o f the warrant, L e onard McCollan, used false identi f i c a t ion. Police in Dallas later

a r rested L innie and transferred him to the Potter Coun t y Sheriff’s Department after f our d ay s. Potter County officials rele a s e d L i nnie three day s later when a review of a file photog r a p h o f the true subject revealed the mistake. Id. at 141. L innie challeng e d his three-day detention i n Potter County under the F ourteenth Amendment and § 1983. Id. at 143–44. The Supreme Court ruled:

W e may even assume, ar g u endo

, that, depending on what procedures t he State af f o r ds defendants following arrest and p r iorR I V E R A V

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to actual trial, mere detention p ursuant to a valid warrant but in the f ace of r ep e ated protests of innocence will after the lapse of a certain amount of time deprive the accused o f “liberty

. . . without due p rocess of law.” B ut

we are quite certain t h at a detention of three day s over a N ew Year’s weekend does not and could not amount to such a deprivation.

Id. at 145. I n Lee v. City o f Los Angeles

, 250 F .3d 668 (9th Cir. 2001), which relied on B aker , we confirmed that such a violation could occur and e x plained that a plaintiff’s burden i s t o show that “it was or should h ave been known that [he]

was entitled to release. ” Lee
, 250 F .3d at 683 (quoting Cannon v. Macon Cnty.
, 1 F

. 3d 1558, 1 563 (11th Cir. 1993)).

3

Cases holdi n g that an incarceration violated the Due Process Clause because defendants should have k n o wn the plaintiff was entitled to release fit at l e a s t one of two categ ories: (1) the circumstances indicated to the defendants that further investig ation was warranted, or (2) the defendants denied the plaintiff access to the courts for an ex tended period of time.

B u t the “further investigation” cases have involved sig nificant differences between the arrestee an d the true suspect. I n Fairley

, for ex ample, the p laint i f f a nd the true subject of the warrant not only h ad d i f f e rent first names but also d i f fered in weig ht b y 66 pounds. 281 F .3d a t 915. I n Ca n n o n v

. Macon County
, 1 F .3d 1 558, 1563 (11th Ci r. 1 9 9 3 ), the a

rrestee’s “driver’s license differed sig nificantl y f r om the description provided for” the suspect and that t h eR I V E R A V

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arrestee’s “phy sical makeup d i d n o t match the phy sical description for” the suspect.

And the “denied access” cases have involved sig nificant periods of deprivation. F or instance, in Fairley

, the p laintiff

was hel d f

o r t welve d ay s without a hearing or court app e a rance. T here, we held that the procedures employ ed violated the Due Process Clause. Fairley

, 281 F .3d at 915, 918. I n O v i a t t v

. Pearce
, 954 F .2d 1470, 1473 (9th Cir. 1992), the “plaintiff spent 114 day s in jail without a n arraig nment, a bail hearing

, o r a trial.” Ag ain, we ruled that the p r o cedures that permitted such a d elay denied the p laintiff liberty without due process of law. Id. at 1477.

4

Rivera has not p resented any evi d ence that the Counties knew that Rivera was not the true subject of the warrant. Nor do the circumstances of this case sug g est that f u r t h e r investig ation into Rivera’s identity was required. I n deed, it
appears that the San B e rnadino deputies reasonably believed that Rivera was the true subject o f the warrant from the time they arrested him. The same consideration s t hat made the
arrest reasonable bear on whether t h e c ircumstances of the detention should have w arned the Counties that Rivera mig ht
not be the true subject of the warrant. I n this case, the
warrant information g ave no reason to suspect that Rivera

was not the true subject of th e w a r r a n t since the name a nd date o f birth matched ex actly while the p hy sical descriptions were quite similar. 2

2 T h at R iv era’ s ad d ress o n h is d riv er’ s licen s e in 2 0 0 9 d id n o t m atch th e ad d ress o n th e 1 9 8 9 w arran t w o u l d n ot g i v e a reaso n ab le o f f icer p au se inR I V E R A V

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Nor did Rivera’s two brief cl a i ms o f mistaken identity upon arrival at the L os Ang e les f acility indicate that the L os Ang eles defendants should have investig ated more thoroug hly

. 3 Claims of innocence are common in jails; a jailor need not independently investig ate all uncorrobora ted claims of innocence if the suspect will soo n h a v e the
opp o rtunity to assert his claims in front of a judg e. 4 Unsupported claims of mistaken identity

, by themse l v es, do not trig g er a duty

to investig ate further.

Even a ssuming Rivera’s two casual mentions of mistaken identity suffice to make h is incarceration “in t h e f ace o f

id en tif y in g Riv era as th e su

b j ect of th e w arran t. It is certain ly co m m o n f or a p erso n to h av e a d if

f eren t ad d ress th an

h e d i d tw en ty

y ears ag o.

3 A f t er h is i n itial co u

rt ap p earan c e , Riv era f

ailed to co m

p lain to

m em b ers o f th e L os A n g eles Co u n ty Sh erif f ’ s D ep artm en t th at h e w as n o t th e tru e su b j ect o f th e w arran t. T h at Riv era asserted to h is p u b lic d ef en der (an d p o s sib ly th e p ro secu to r) th at h e w as n ot th e su b j ect o f th e w arran t is irrelev an t. P u

b lic d ef e n d ers d o n o t act u

n der co lo r o f state law f

o r th e p u rp o s e o f § 1 9 8 3 “ w

h en p erf o rm in g a law

y er’ s trad i t i o n al f

u n ctio n s as

co u n sel to a d ef

en d an t in a crim in al p ro ceed i n g .” Po lk C n ty. v. Do d

so n , 4 5 4 U.S. 3 1 2 , 3 2 5 (1 9 8 1 ).

4 T h e d i s s e nt w o u ld h o l d th at a d etain ee’ s u n co rro b o rated claim of

m istak en id en tity creates a co n stitu t io n al o b lig atio n f

o r th e j ailo r to “ ch eck read ily av ailab le, ex cu lp ato ry in f o rm atio n .” Dissen t at 2 3

– 2 4

. Of co u rse,

a g reat d eal o f in f

o rm atio n i s “ read ily av ailab le,” an d a j ailo r h as n o w ay

o f k n o w in g w h ich ev id en ce, if an y , w ill b e ex cu lp ato ry b ef o re startin g th e in v estig atio n

. Su ch a req u irem en t co u ld b e qu ite b u rd en so m e in th e ag g reg ate. B ecau se th ere is n o p rin cip led d is t i n c t i o n b etw een claim s of

m istak en id en tity an d o th er claim s o f in n o cen ce, cf. Ba ker

, 4 4 3 U

. S

. at 1 4 5

– 4 6 (eq u atin g clai m s o f m istak en id en t ity w ith o th er claim s of in n o cen ce); b u t see Dissen t at 2 3 n .2
, su ch reaso n in g w o u ld p resu m ab ly f o rce j ailo rs to in v estig ate n on

– m istak en id en t ity claim s of in no cen ce,

w h ich w o u ld in crease th e co s ts o f th e ru le ev en m o re. Co n t ra Dissen t at 2 3 (claim in g “ n o g reat b u rd en ” w o u ld b e im p o sed ).R I V E R A V

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repeated protests of innocence,” the Due Process Clause was not violated u n less Rivera was held f or a long e noug h period of time without adequate procedures. Baker

, 443 U.S. at 145 (assuming a violation could o ccur “after the lapse of a c ertain
amount of time” and “depending on w h at procedures the State affords defendant s f o l l owing arrest and prior to actual trial”). Rivera was taken before a judg e the very nex t day

, a sig nificant p rocedural protection. I t is u n c l ear why Rivera did not assert his claim of mistaken identity at the March 10
court h e aring

, but the fai l u re to take advantag e of a procedural protection does not disprove its availability

.
Thereafter, he was no long er held simply on the w arrant; he was “held in custody p ursuant t o a c o u r t order.” I f a suspect is h eld according to c o urt or d e r , county officials a re not required to investig ate whether that c ourt order is proper. See Hernandez v. Sheahan

, 455 F .3d 772, 776 ( 7th Cir. 2 006) (upholding a policy that “[ i] g n ore[ s] all claims o f misidentification” a f

ter a judg e commi t s a suspect to the sheriff’s custody

); Lumbermens Mut. Cas. Co. v. Rhodes

, 403 F .2d 2, 7 (10th Cir. 1 968) (“Certainly a j a i l er should not be

ex p ected to g o behind a court o rder of commi t ment to determine whether a person presented for safekeepin g h a s been convicted as a result of some d enial of h is constitutional rig hts.”). 5 This fact removes this case f r o m t he realm

5 T h e d issen t arg u es th at o u r d ecisio n in Lee co m p els th e co n clu sio n th at

“ a d etain ee m ay

still h av e a d u e p ro cess claim ag ain st h is j ailer d esp ite a p ro m p t co u rt h earin g th at resu lts in h i s rem an d to cu sto d y .” Dissen t at 2 2

. Lee p erm itted a s u it b ased o n th e p re- h earin g deten tio n ; i t did n o t p u rp o rt to im p o se l iab ility f

o r t h e p o st- h earin g deten tio n

. In t h e sectio n o n w

h ich th e d issen t relies, Lee m erely ex p lain ed w h y t h e o n e- d ay d eten t io n at issu e i n t h at case co u ld v io late t h e Du e P ro cess Clau se w h en t h e th ree -d a y d eten tio n at issu e in Ba ker d i d n o t. See Lee
, 2 5 0 F.3 d at 6 8 4

– 8 5 (d istin g u ish in g Ba ker

, f

o r d u e p ro cess p u

rp o ses, b e c a u s e i t in v o lv edR I V E R A V

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envisioned b y Baker

. S

ee Baker

, 443 U.S. at 145 (discussing “detention pursuant to a valid w arrant”). I t also disting uishes this case from those involving p rolong ed incarceration without access to judicial p rocess. S e e F a i r ley

, 281 F .3d at 915; Oviatt , 954 F .2d at 1473.

Fo r t he foreg oing reasons, Rivera’s detention did no t violat e the Due Process Clause of the F ourteenth Amendment. 6 The district c ourt, th e r e f o r e, was correct to g rant summary

judg ment for the defendants on this claim.

I I I

Rivera h as asserted clai m s u n der California law as well. F irst, he claims that the defendan ts committed the common la w t ort of false imprisonment. Second, he asserts that the d e f e ndants are liable under California Civil Code § 52.1( b ), the B ane Act, which is a cause of action for violations o f constitutional and statutory rig hts. Under California law, the Counties, as public entities, are liable for the actions of their employ e es. Cal. Gov. Code § 815.2(a). To the ex tent their

in carceratio n o n “ a f

acially v alid w arran t ” rath er th an d e t e n t i o n o f a

m en tally in cap acitated p ers o n i n th e ab sen ce o f p ro b ab le cau se). B ased

o n a m isread in g o f Lee an d co n cern s ab o u t “ u n so u n d p o licy ,” Dissen t at 2 2 , th e d issen t u rg es u s to create a circu it sp lit. T h is w e d eclin e to d o

.

6 In reach in g a co n trary co n clu sio n , th e d i s se n t relies o n Ru s so v. City

o f Brid g ep o rt . Dissen t at 2 4 (citin g 4 7 9 F.3 d 1 9 6 (2 d Cir. 2 0 0 7 )). T h at
case, h o w ev er, ru led t h at th e d eten tio n at issu e v io lated th e Fo u rth A m en d m en t, n ot th e D u e P ro cess Clau se. S ee Ru sso , 4 7 9 F.3 d at 2 0 8 (“ [W ]e n ow co n clu d e

. . . th at th e rig h t sh o u ld i n stead b y an aly zed u n der th e Fo u rth

A m en dm en t.”). T h e d issen t, h o w ev er, ag rees th at th e d istrict

co u rt w as co rrect to g ran t su m m ary j u d g m en t o n Riv era’ s Fo u rth A m en d m en t Claim s. Dissen t at 1 9 (“ I ag ree w ith t h e m a j o rity th at Riv era’ s Fo u rth A m en d m en t claim s . . . m u st f ail . . . .”).R I V E R A V

. C O U

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employ e es would be immune fro m l i a bility

, however, the Counties are also immune. Cal. Gov. Code § 815.2(b).

C alifornia law p rovides two ty pes of immunity rele v a n t to this case. F irst, an offic e r i s not liable for “an arrest pursuant to a warrant of arrest r eg ular upon its fac e i f the
peace officer in making the arrest acts without malice and in the r easonable belief that t h e p e rson arrested is the o ne referred to in the warrant.” C a l

. C ivil Code § 43.55(a). Second, an o f

f icer is not liable “for false arrest or false imprisonment arising out of any a rrest” that “was lawful, o r [ that] the p eace o f

f i c e r , at the time of the arrest, h ad reasonable cause to believe

. . . was lawful.” Cal. Penal Code § 847(b)(1).

I n Lopez v. City of Oxnard

, 207 Cal. App. 3 d. 1, 4 (Ct. App. 1989), plaintiff L opez had been a rrested multiple times

on a w arrant for which h e was not the true subject because his
name, date of birth, address, and phy sical desc r i p t i on matched those on the warrant. After his first arrest, however, the plaintiff o btained a “ disposition sheet” from the court, which ex plained that the plaintiff was not the true subject of the warrant. Despite b ringi ng this disposition sheet to the officers’ attention, the pl a i n tiff w as detained twice more,

once for three day s and once for three hours. Id. at 4–5. The
court h eld that the arresting officer was immune f rom liability because “ there is no factual q uestion whether the officer h ad

a reasonable belief that L opez w as the person named in the

w a r r ant.” Id. at 9. The court also held that the sherif f’ s department that jailed the plaintiff w as not liable, despite failing to c onsider the disposition sheet, beca u s e j ail personnel “a r e e ntitled to r ely on p rocess and orders apparently

valid on their face.” Id.R I V E R A V

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B e cause the employ ees relevant to this case would be able
to invoke statutory immunities to avoid liability

, the Counties

can as well. Therefore, the district court’s g rant of summary judg ment based on statutory immunities was correct.

I V

F or the foreg o ing r eason s , the district court properly
g ranted the defendants’ motions for summary judg ment.

AF F IRMED.

PAEZ
, Circuit J udg e, concurring in part and disse n t ing in part:

A l t houg h I ag ree with the majority that Rivera’s F ou r t h Amendment claims ag ainst L os Ang eles C o unty and San B ernardino County
, his F ourteenth Amendment c laims
ag ainst San Bernardino County
, and his state law c laims
ag ainst both counties must fail, I disag r ee with the majority ’s analy sis of the due process claim in this c a s e

. I n my v iew, Rivera has r a i s e d a g enuine issue of material fact a s to whether L os Ang eles County deprived him of liberty without due process of law. According ly

, I respectfully d issent from Part I I .C of the majority ’s opinion.

I

.

As the majority acknowledg es, after the lapse of a c ertain period of time, “a detainee h as ‘a cons t i t utional rig ht to be free from continued detention after it was or should have been known that the detainee was entitled to release.’” Lee v

. CityR I V E R A V

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o f L o s Angeles

, 250 F .3d 6 68, 683 (9th Cir. 2001) (quotin g Cannon v. Macon Cnty.
, 1 F .3d 1558, 1563 (11th Cir. 1993)). The majority contends, however, that there are just two ty pes of scenarios where a jailer should know that a detaine e is

e n t itled to release: (1) c ircumstances indicate that furt h e r investig ation is warranted, or (2) the detainee is denied access to the courts f

or an ex tended period of time. Maj. Op. at 13. The ex istence of “sig n ificant differences between the arrestee and the true s u spect” may warrant additional investig ation, but “[ u] ns u p p o rted c laims of mistaken identity

. . . do not trig g er a duty to investig ate.” Id. at 13, 15. F inally

, the majority holds that after the d etainee appears in court, county officials can never have an oblig ation to further inves t i ga te. Id. at 1 6–17. Under this view, u nless a detainee h as the g ood fortune to ( 1) ex h ibit o b v ious phy sical or biog raphical differences from the true subject of the warrant, or (2) possess support for his claim of mistaken identity

, county officials a re free to ig nore his complaints. F urthermore, even the limited duty to investig ate o bvious indicia of mistaken identity is

ex ting uished o nce the detainee appears in court. Neither case law nor log ic compel such a cabined understanding of the d ue process rig hts of detainees.

Our precedent does not delineate what circumstances
must ex ist before an officer or ag ency shoul d k n o w that a detainee is entitled to r elease. I t simply mandates that if a n officer or jailer should have k nown that the d etainee was entitled to release, “ a d etainee has ‘a constitutional rig ht to be free from continued detention

. . . .’” Lee
, 2 5 0 F. 3 d at 683 (quoting Cannon
, 1 F .3d at 1563). The majority treats our

ex isting case law a s the outer boundaries o f when county off i c i a l s should have known that a detainee w as entitled to release. B ut we have had o n l y t h ree occasions to consider such claims. See Fairley v

. Luman
, 281 F .3d 9 1 3
, 915,R I V E R A V

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9 1 7

– 1 8 (9th Cir. 2002) (per curiam); Lee
, 250 F .3d at 677–78, 683–84; Oviatt v. Pearce
, 9 54 F .2d 1470, 1473–77 (9th Ci r

. 1 9 9 2 )

. I n n one of those cases did we sug g est that phy sical differences b etween a detainee and the true subject of the warrant or leng thy d e t e n t ion without a court h earing

were requirements to a su c ce s s ful due process claim. The

ex a mples cited by the majo r ity a re just that; they d o not provide a basis for concluding that no other set of facts could sustain a detainee’s due p r oces s c laim. Moreover, the majority creates a brig

ht-line rule that jailers owe nothing to d e t a i n e e s w h o s e c l ai m s o f m i s t a k e n i d e n t i t y a r e “[ u] nsupported.” Maj. Op. at 15. W e have never sug g ested that a jailer’s duty to investig ate is c onting e nt o n a d etainee first presenting his jailer with supporting evidence. Nor can I see any log ical bas i s f

o r limiting a detainee’s due process rig hts to these circumstances. T h e touchstone is simply whether the jailer should have known, despite th e e x i s tence of probable cause at the time of a rrest, that a deta i nee was

e n t itled to be released. This is inherently a fact-intensive, circumstance-specific inquiry

.

The majority ’s nex t conclusion—any duty the jailers have
to investig ate terminates o n c e a detainee is held pursuant to

a court order—is even less sound. See Maj. Op. at 16–17. The majority relies on several o ut-of-circuit cases to support its conclusion, see id. (citing H ernandez v. Sheahan

, 455 F .3d 772, 776 (7th Cir. 2006) and Lumbermens Mut. Cas. Co. v

. Rhodes

, 403 F

. 2d 2, 7 (10th Cir. 1968) )

, b u t such a conclusion cannot be squared with our precedent. I n Lee
, the detainee, K erry Sanders, who was mistakenly identified a s the subject of a warrant from the State o f New York

, had an

ex tradition hearing

within one day

of his arrest. 250 F

. 3d at 67 8
, 6 8 4

. At the hearing

, after some dispute about the

v alidity of Sanders’s W aiver of Ex tradition form, the co u r tR I V E R A V

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accepted the waiver. Id. at 678 n.3. Su b s e q u e n t to the h e a r ing

, Sanders, just like Rivera, was held pursuant to a

c o urt order u ntil N ew York state officials took custody o f him. See id. ; Cal. Pe n a l Code § 1555.1 (I f a waiver o f

ex tradition is ex ecuted, t h e “mag istrate shall remand the
person to custody without bail, unless otherwise stipulated b y the district attorney with the c oncurrence of the other state.”). Nonetheless, in Lee
, we specifically held that “[ t] he arg ument that Kerry Sanders’s due p rocess claim must fai l a t the pleading stag e because he was incarcerated for only one day before his ex tradition hearing is

. . . unavailing .” 250 F

. 3d at 684. Under Lee
, then, a detainee may still have a due process claim ag ainst h is j ai l e r despite a prompt court hearing that results in his r emand to custody ; the c ourt o r der does not

necessa r i l y obviate a county ’s oblig ation to investig ate the

va l i d i t y of continued incarceration. Id. 1 The majority ’s conclusion to the contrary is inconsistent with Lee

.

F urthermore, e x onerating a jailer of any oblig a t i o n to investig ate once a court remands a detainee to custody is an unsound policy . As this case demonstrates, if the detainee’s only recourse is to seek court interventi o n t o verify his identity

, he may lang uish in d etent i o n f or weeks while the
court searches its records for d ated phy sical files. I n contrast, county jail offic i als ty

p ically have instantaneous a ccess to

ex tensive criminal history r ecords and fing erprint d atabases.

1 T h e m aj o rity read s Lee as p erm ittin g liab ility f o r o n ly th e p re- h earin g d eten tio n

. Maj

. Op

. at 1 6 n .5

. Lee sp ecif ically co n tem

p l ate s t ha t t h e d ef en d an t s m ig h t b e liab le f

or “ San d ers’ s tw o

- y ear in carceratio n ,” n ot th e

o n e- d ay p re- h earin g d eten tio n

. Lee , 2 5 0 F.3 d at 6 8 5

. In d eed

, Lee h o l d s th at certain New Y o r k state of f icials m ay be h eld acco u n tab le f or San d ers’ s d eten tio n , an d th o s e o f f i cials o n ly b ecam e in v olv ed in S an d ers’ s case af ter th e ex trad itio n

h earin g

. Id

. at 6 7 8, 6 9 5

.R I V E R A V

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I t is n o g reat bu r d en t o ex pect them to access these readily available resources when appropriate. 2
, 3

I I

.

The majority has imposed a v a riety of unjustified

res t r i c tions on Rivera’s F o urteenth Amendment claim. I n determining whether a violation occurred, the o nly inquiry is simply whether it “‘was or should have been known that the detainee was entitled to rele a s e

. ’ ” Lee
, 250 F .3d at 683 (quoting Cannon
, 1 F .3d at 1563). I would hold t hat h ere, Rivera’s complaints of mistaken identity

, in conjunction with L os Ang eles County ’s f

ailure to conduct any investig ation o r check readily a vailable, ex c u lpatory information, were

s ufficient to create a g enuine, triable issue of fact a s t o whether the County should have know n t h at he was entitled

2 T h is d o es n o t m ean th at j ailers h av e a co n s t i t u tio n al d u ty to sco u r read ily av ailab l e d atab ases f o r ex cu lp ato ry i n fo rm atio n an y tim e a d etain ee claim s t

h at h e is in n o c e n t, an d I d o n o t co n ten d o th erw ise. Co n t ra Maj

. Op

. at 1 5 n .4

. Here, it i s t h e f ailu re to co n d u ct an

y in v estig atio n in resp o n s e to Riv era’ s co m p lain ts o f m istak en id en tity th at creates a g en u i n e issu e o f f act as to w

h eth er L o s A n g eles Co u

n ty sh ou ld h av e k n ow n th at Riv era w as en titled to b e released

. S ee Dissen t at 2 3

. If

a co n stitu tio n al ob lig atio n can b e in f erred f ro m th e h o ld in g I w ou ld ad o p t, it is th at j ailers m

u st im p lem en t in v estig ato ry p ro ced u res t o h a nd le

co m plain ts o f m istak en id en tity

.

3 L o s A n g eles Co u n ty co n ten d s th at o n ce a d etain ee is h eld pu rsu an t to

a co u rt o rd er, j ailers lack th e d iscretio n to relea s e h im

. Ev en so , th is

w o u ld n o t p rev en t j ailers f ro m in v estig atin g an d in f o rm in g th e d etai n e e, th e p ro secu to r, d ef

en se co u n s el, an d th e co u rt, o f an y d eterm in atio n th at th e d etain ee is n o t th e tru e su b j ect o f th e w arran t.R I V E R A V

. C O U

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to be released. 4 S

ee Baker v. McCollan

, 443 U.S. 137, 148 (1979) ( B lackmun, J
., concurring ) ( “ [ D ] eliberately a nd repeate dly r efus[ ing ] to check the identity of a complaining prisoner ag ainst readily available mug shots and fing erprints” “mig ht prove a due proce ss violation.”); Russo v. City of Bridgeport

, 479 F .3d 196, 201, 208 (2d Cir. 2007) (h o l d i n g tha t a d etainee is protected from “a sustained detention stemming directly f

rom the law enforcement officials’ r efusal
to investig at e available ex c ulpatory evidence” and allowing

a n a c t ion under 4 2 U.S.C. § 1983 ag ainst the jailers t o proceed even thoug h t h e detainee had numerous court appearances during

his detention). 5

Rivera testified that, u

pon arriving at the L os Ang eles County jail, h e com plained to two L os Ang eles County officials that he was n ot the individual wanted in the warrant.

4 I d o n o t ad d ress w

h eth er San B ern ard i n o Co u n ty o f f icials sh ou ld h av e k n o w n th at Riv era w as en titled t o b e released

. Ev en assu m in g th at Sa n B ern a r din o Co u n ty o f

f icers sh o u ld h av e k

n o w n th at Riv era w as en titled
to b e released

, Riv era h as of f ered n o ev id en ce o f a m

u n icip al p o licy or

c u sto m th at w as delib erately in d if f eren t to co m

p lain ts o f m isid en tif

icatio n

. Riv era o n ly arg u es th at San B ern ard in o Co u n ty d o es n ot req u ire “ p o sitiv e id en tif i catio n acco m

p lish ed t h ro u g h th e ex ch an g e o f f in g e rp rin t f acsim iles.” B u

t th e f ailu re to access f

in g erp rin t d atab ases f

o r ev ery in d iv i d u al arrested or d etain ed do es n o t ev in ce d elib erate in dif f eren ce to

an y co n stitu t io n al rig h t.

5 T h e m aj o rity ’ s attem

pt t o distin g u ish Ru sso o n t h e g ro u n d th at it is a Fo u rth A m en d m en t case is u n p ersu asiv e. See Maj

. Op

. at 1 7 n .6

. T h e claim in Ru sso is th e sam e claim w e are f aced w ith h ere. In t

h e Seco n d Circu it’ s v iew

, recen t Su p rem e Co u rt case law h as s u g g ested t h at th e

so u rce of t h e rig h t f

irst reco g n ized in Ba ker is th e Fo u rth A m en d m en t rath er th an th e Fo u rteen th A m en d m en t; co n seq u en tly

, it an aly zes R u sso ’ s claim u n d er th e Fo u rth A m en d m en t. Ru sso , 4 7 9 F.3 d at 2 0 8

. T h e Fo u rth A m en d m en t claim d iscu ssed in t h e relev an t p o rtio n o f Ru sso is n o t, as th e

m aj o rity w

ro n g ly in sin

u ates, an u n law f

u l arrest claim

. S

ee id

. at 2 0 5
, 2 0 8

.R I V E R A V

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Fi r st, he informed a male official behind a window that h e

was “being mistaken for another person.” The male official
wrote something down and directed Rivera to “[ g ] o to the cell.” He took no further action. Rivera also informed another official, a y oung woman behind a window, that “they

were confusing me with a p e r s o n who had run o ver two people here in Culver City .” The wo m a n responded b y say ing “I ’m sorr y , ” b u t also took no further action. I n my view, a f

actfinder could reasonably conclude that such complaints were sufficient to put an officer o r county official on notice that further investig ation was necessary

. 6

Had either officer followed up with Rivera or conducted

an indep e ndent investig ation, the officer would have discovered—with relative ease—that Rivera was n ot the true subject of the warrant. A L os Ang eles County official could h a v e s e a r c h e d t h e C a l i f o r n i a L a w E n f

o r c e m e n t Tele c o mmunications Sy stem (“CL ETS”), a statewide criminal records database maintained by the Cal i f ornia Department of J u stice. CL E T S would have returned two h its with distinct criminal information and identification (“CI I ”) numbers. Althoug h the record contains some evidence that, occasionally

, the same individual may be associated w ith two C I I numbers, as a g eneral matter, CI I numbers are uniq u e identifi e rs; two distinct CI I numbers, then, would have a lerted
t h e officer to the fact that there was likely at least one o t h e r person who shared the warrant subject’s name and birthdate. The o fficer could have then r u n the two CI I numbers throug h CL ETS, and received two disti n c t criminal history reports.

6 T h e m aj o rity d ism i sses th ese co m p lain ts as “ b r i e f” an d “ casu al,” see Maj

. Op

. at 1 5

– 1 6
, b u t it is th e f actf in d er’ s ro le to assess w

h eth er Riv era’ s p leas th at h e w as b ein g m istak en f o r an o th er in d iv id u al sh o u l d h av e p ro m p t ed so m e actio n

.R I V E R A V

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One report would have included a 1985 arrest for involuntary manslaug hter, and the other would no t h a v e. Even more critica l l y , the reports would have indicated that one of the individuals had previously been ex onerated of the v ery

c h a rg e s for which Rivera w as detained. The o fficial w o u l d have then had g ood reason t o b elieve that the CI I numbers belong ed to two d ifferent individuals. T he official could have confirmed this by running the two CI I numbers throug h the Automated F ing erp r i nt I dentification Sy stem (“AF I S”), which would have returned two di s tinct sets of fing erprints. B y comparing Rivera’s fing erprints to the fin ge r prints associated with both CI I numbers, the officer then could have determined that R i v era was the individual who had previously been ex onerated of the charg es, and not the true subject of the
warrant. W hen the fa i l ure to take these simple steps r esults in a month-long detention of a m a n who twice a lerted officia l s that he had b een mistaken for another individual, a factfinder could reasonably c onclude that a due process violation occurred.

I I I

.

Even if a factfinder were to conclude that L o s Ang eles County officials violated Rivera’s d ue process rig hts, the inquiry would not end there. A m u n i c i p a lity is liable for constitution al violations only where its policies or customs “evince a ‘deliberate indifference’ to the constitutional rig ht and are the ‘moving force behind the constitutional violation.’” Edgerly v

. City and Cnty. of San Francisco
, 599 F .3d 9 46, 9 60 ( 9th Cir. 2 010) (quoting Levine v. City of Alameda , 525 F .3d 903, 907 (9th Cir. 2008)).

Rivera contends that L os Ang eles County has a policy o f rely ing on the arresting ag e ncy ’s identification. L os Ang elesR I V E R A V

. C O U

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County does n ot dispute that, as a g e neral matter, it does not

v e r ify the identity of individuals arrested by a d iffere n t ag ency ; however, if an i n d i vidual arrested by a different
ag ency complains that he is n o t the subject of the warrant, L os Ang eles County will co n d uct an investig ation. Rivera has not shown how the failure to conduct an investig ation at the outset for every perso n a r rested by another a g e ncy is deliberately

indifferent to a detainee’s constitutional rig hts.

On the evidence p r e sented, h o wever, a f actfinder may nonetheless con c l u d e that L os Ang eles County ’s policy is deliberately indifferent to a detainee’s due process rig hts a nd

was the moving force behind the violation. Serg eant Ang ela B ecerra, the Document Control Serg eant at the I nmate Reception Center of the L os Ang eles County j a i l

, described the County ’s policy as follows: W hen a detainee c omplains that “he is not the subject of a warrant on which he has been arrested or d etained,” officials f ill out a Disputed W arrant Verification F orm and b eg in an investig ation. They compare the d etainee’s and th e w a r r a n t s u b j e c t ’ s phy sical characteristics, dates of birth, CI I numbers, and, if necessary , criminal histories. However, Ag ent B ecer ra’s declaration also states that this is a rar e c o m p l aint, noting that many inmates will complain “ that they ar e ‘innocent’, that they

were arrested by ‘mistake,’ or that they a re not the person the police are l o o k i n g for,” but not that they had been “misidentified with a warrant.”

A factfinder could reasonably conclude from the above that L os Ang eles County has a p o l i c y of investig ating only those complaints of misidentification that have b een phrased in very precise, particular terms. Apply ing the Di s p u ted W a r rant Verification F orm procedures only when a d etainee specifically complains that he is not the subject of the warrantR I V E R A V

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and ig noring the other, more common complaints may w ell b e deliberately indifferent to a detainee’s constitution al rig hts. After all, a lay

person has no means of knowing that,
to g et an officer’s or county official’s attention, he must state, in v e ry specific terms, that he is not the true subject o f the warrant; instead, he may r easonably attempt to ex pla i n h i s predicament b y indicating that the police have mistaken him for a nother person or that h e is n ot t h e p e r s o n the police a re seeking

. I t is entirely obvious that refusing to investig ate any but the most precise misidentification c omplaints will lead to the u nconstitutional detent i on of innocent individuals. See Lee
, 2 50 F

. 3d at 682 ( “[ D] eliberate indifference to a person’s
const i t u t i o nal rig h ts occurs when the need for more o r different ac t i o n, ‘is so obvious, and the inadequacy [ of the
current procedure] so likely to r esult in t he violation o f constitutional rig hts, that the policy makers

. . . can reasonably b e said to have been d eliberately indifferent to the need

. ’ ” (second alteration in orig inal) (quoting Oviatt
, 954 F. 2 d at 1477–78)).

I f t h e factfinder were to conclude that L os Ang el e s County has a policy of investig ating only a narrow set of very precisely -worded complaints, the factfinder could also reasonably conclude that this policy was th e moving force behind th e d e p r ivation of Rivera’s r ig hts. I n order to be the “moving forc e” b ehind a p laintiff’s injury

, the “‘identified deficiency ’ in the County ’s policies [must be] ‘closely r elated
to the ultimate injury .’” Gibson v. Cnty. of W ashoe, Nev.
, 290 F .3d 1175, 1196 (9th Cir. 2 002) (quoting City of Canton

v. Harris
, 489 U.S. 3 78, 391 ( 1989)). H ere, the statements Rivera made to the L os Ang eles County officials a re remarkably similar to Ag ent Be c e r ra’s ex amples o f complaints that would be considered distinct from g e n eral misidentification claims. A factfinder could reasonablyR I V E R A V

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determine that River a ’ s complaints were therefore ig nored because of a municipal policy to not investig ate such complaints.

I V.

F or the above reasons, I w ould h old that a g enuine issue of material fact ex ists a s to w hether Rivera’s due p r o c e ss rig hts w ere violated and whether L o s A ng eles County may be held liable f

or the v iolation. I would therefore affirm in part and reverse in p art the district court’s order g ranting summary judg ment in favor of Defendants.