FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REXFORD LEROY NEWMAN, JR., 

Plaintiff-Appellant, No. 04-56103

v. D.C. No.  CV-02-01152-GLT COUNTY OF ORANGE; MATTHEW

JOHNSON; JEFFREY PUSKAS, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

April 4, 2006—Pasadena, California

Filed August 7, 2006

Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain,

Circuit Judges, and Robert C. Jones,* District Judge.

Opinion by Judge O’Scannlain

*The Honorable Robert C. Jones, United States District Judge for the

District of Nevada, sitting by designation. 

8891
COUNSEL

Jerry L. Steering, Law Office of Jerry L. Steering, Newport

Beach, California, argued the cause for the appellant and filed

a brief. 

David D. Lawrence, Franscell, Strickland, Roberts & Lawrence, Orange, California, argued the cause for the appellee;

Christina M. Sprenger and Jorge Chica were also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide what evidence a civil rights plaintiff alleging malicious prosecution must produce to overcome the presumption that a prosecutor exercises independent judgment in

choosing to file charges.

I

Shortly before Christmas in 2001, Orange County Deputy

Sheriff Matthew Johnson (“Johnson”), a motorcycle officer,

initiated a traffic stop of Rexford Leroy Newman, Jr.

(“Newman”), in San Juan Capistrano, California. After Johnson handed him a traffic citation for speeding, Newman asked

if there was any chance he could receive a warning instead of

a citation. According to Johnson, Newman explained that he

had been in the Air Force and was a 30-year veteran pilot in

the airline industry. Newman claims that he told Deputy Johnson only that he had not had a ticket in the previous sixteen

years and that his father was a deputy sheriff. Newman eventually signed the citation and was given a copy of the ticket.

As Johnson turned to go, Newman said, “I hope you have a

Merry Christmas.” The two disagree about what happened

next. 

8894 NEWMAN v. COUNTY OF ORANGE
A

Johnson says that he walked back to his motorcycle and

began writing his notes about the traffic stop. Newman started

his car and accelerated back onto the highway, kicking up

rocks and debris that then peppered Johnson and his motorcycle. Johnson got back on his motorcycle and pulled Newman

over again. 

Johnson instructed Newman to get out of his vehicle, and

Newman replied, “Why, just because of a little dirt? I don’t

see any dirt on you?” Newman then got out of his Jeep, and

Deputy Johnson informed him that he was under arrest. Deputy Johnson’s initial crime report describes what happened

next: 

I told him to put his hands behind his back and as I

grabbed his left arm from behind, he yanked his arm

away from me and spun to his left. Newman yelled

“you’re not going to arrest me for this.” As he spun

he struck my left shoulder with his right arm. I then

grabbed his left arm again and attempted to place a

wristlock on him. He continued to try and pull away

from me, so I attempted to trip him to the ground. As

I attempted to trip him I slipped on the gravel and we

both fell to the ground. I was on top of him and I

used my radio pac set to call for assistance. Newman

was still struggling and attempting to break free. I

was holding him down and attempted to deploy my

pepper spray. I removed my pepper spray from my

duty belt and with one hand, attempting to hold him

down. I could not get an accurate spray on Newman,

the pepper spray had little or no affect [sic] on Newman. 

Assisting Deputies arrived and Newman was

handcuffed and placed in the back seat of a marked

patrol unit. 

NEWMAN v. COUNTY OF ORANGE 8895
B

By comparison, Newman claims that, after receiving his

speeding ticket, he replaced all of his documentation, checked

his mirrors, and pulled back into the flow of traffic. After

traveling 150-200 feet, he moved into the left turn lane when

he again saw Deputy Johnson’s motorcycle behind him, blue

lights flashing. 

Johnson pulled up beside Newman and yelled at him to pull

to the curb. When Newman asked if he could complete his left

turn, Johnson screamed at him to “pull to the right curb now.”

Newman did as instructed, and Deputy Johnson yelled at him

to step out of the car. Newman again complied and noticed

that Johnson was talking into his radio while standing in a

dangerous spot in the road. He yelled at Johnson “to get out

of the traffic, you’re going to get hit.” 

When Johnson finished with his radio, he told Newman to

“go sit on the curb.” Newman walked to the curb and turned

to sit, and as he did, he saw Johnson running and spraying

pepper spray towards him. As the pepper spray hit Newman’s

arm, he turned his body to the left, raising his right arm to

protect his face. Despite this, the pepper spray got in his face,

and Newman closed his eyes to protect them. Then Johnson

hit him in the back, knocking Newman to the ground and yelling at him to “get prone on the ground.” 

At that moment, Johnson’s backup began arriving, including Deputy Jeffrey Puskas. With Puskas’ assistance, Johnson

handcuffed Newman, searched him, and placed him in a

patrol car. Johnson then drove Newman to the Orange County

jail for booking. 

C

After Newman’s arrest, the Orange County District Attorney’s Office filed a misdemeanor criminal action against him

8896 NEWMAN v. COUNTY OF ORANGE
for speeding and for resisting, obstructing, or delaying a peace

officer in violation of California Penal Code § 148. A jury

acquitted Newman of all charges. 

Following his acquittal, Newman filed suit under 42 U.S.C.

§ 1983 against Johnson, Puskas, and Orange County, alleging

over a dozen causes of action, including malicious prosecution. The defendants filed a motion for summary judgment,

which the district court granted on Newman’s malicious prosecution claim, finding that he was unable to overcome the

presumption that the prosecutor had exercised independent

judgment. 

Newman sought leave to bring this interlocutory appeal,

and we granted his request. We review the district court’s

grant of summary judgment de novo. Delta Savings Bank v.

United States, 265 F.3d 1017, 1021 (9th Cir. 2001). 

II

Newman presents two arguments on appeal. First, he

claims that the district court misinterpreted our previous pronouncements concerning the evidence required to rebut the

presumption that a prosecutor exercises independent judgment. Second, assuming the district court’s interpretation was

correct, Newman insists that he produced sufficient evidence

to overcome the presumption. We address his arguments in

turn.

A

[1] We have long recognized that “[f]iling a criminal complaint immunizes investigating officers . . . from damages suffered thereafter because it is presumed that the prosecutor

filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at

that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.

1981) (Smiddy I). The plaintiff bears the burden of producing

NEWMAN v. COUNTY OF ORANGE 8897
evidence to rebut such presumption. Newman argues that he

rebutted the presumption with his account of his arrest. Our

cases suggest otherwise.

1

We first identified the presumption in Smiddy I, 665 F.2d

at 266. There, an individual cleared of a murder charge

brought suit under 42 U.S.C. § 1983 against the officers

responsible for his arrest. Id. at 263-64. After a jury found for

the plaintiff, the officers appealed, claiming that they were not

liable for damages suffered after the district attorney filed the

formal complaint. Id. at 266. We agreed, noting that

[a] police officer’s lot already is unfortunate because

it is he who often is the only actor in the chain of

decisions leading to prosecution who is subject to

section 1983 liability. We need not make it more

unfortunate by holding the officer liable for damage

that is the result of the intervening fault of others in

the chain. The existence of the possibility of absolute

liability on the part of the municipality or governmental unit further underscores the justice of limiting the liability of the police officers. 

Id. at 267. This justified a rebuttable presumption that a prosecutor exercises independent judgment in deciding to file

charges. After identifying such presumption, we returned the

case to the district court to determine whether the plaintiff

was able to rebut the presumption. Id. at 268. 

Following the remand, the district court granted summary

judgment to the plaintiff. We reversed, holding that the plaintiff had failed to meet his burden. Smiddy v. Varney, 803 F.2d

1469, 1471 (9th Cir. 1986) (Smiddy II). He produced no evidence “that the district attorney was subjected to unreasonable

pressure by the police officers, or that the officers knowingly

withheld relevant information with the intent to harm [him],

8898 NEWMAN v. COUNTY OF ORANGE
or that the officers knowingly supplied false information.” Id.

Thus, “the presumption was sufficient to require summary

judgment” for the defendant officers. Id. 

2

Our later cases further explained the types of evidence necessary to overcome the presumption. In Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988), we affirmed an

award of damages that included attorneys’ fees incurred

defending against criminal charges of which the plaintiffs

were acquitted. The prosecutor based the decision to prosecute solely on the information contained in the officers’

reports, but the plaintiffs highlighted striking omissions in the

those reports as well as the fact that the officers themselves

offered conflicting stories. Id. On the basis of such evidence,

“[t]he jury was entitled to find . . . that [the officers] procured

the filing of the criminal complaint by making misrepresentations to the prosecuting attorney.” Id. Thus, the plaintiff had

rebutted the presumption of independent judgment, and the

attorneys’ fees were properly included in the calculation of

damages. Id.

In Barlow v. Ground, 943 F.2d 1132 (9th Cir. 1991), a similar case, we held that a civil rights plaintiff seeking attorneys’

fees as damages had also produced sufficient evidence to

overcome the Smiddy presumption. There, as in Borunda, the

prosecutor relied solely on the arresting officers’ reports,

which omitted critical information. Id. at 1137. Further, an

independent witness corroborated at least part of the plaintiff’s version of events, and the officers’ accounts conflicted.

Id. 

[2] In contrast, we have stated that a plaintiff’s account of

the incident in question, by itself, does not overcome the presumption of independent judgment. Sloman v. Tadlock, 21

F.3d 1462, 1474 (9th Cir. 1994). Sloman, like Borunda and

Barlow, involved whether attorneys’ fees could be counted as

NEWMAN v. COUNTY OF ORANGE 8899
damages. Like those cases, prosecutors relied exclusively on

reports submitted by officers. However,

Sloman did not and does not point to any evidence

of . . . fabrication other than the fact that the officers’

reports were inconsistent with Sloman’s own

account of the incidents leading to his arrest. Such

conclusory allegations, standing alone, are insufficient to prevent summary judgment. 

Id. Because Sloman had no evidence of material omissions, or

inconsistent police or eyewitness accounts, he could not demonstrate a genuine issue of material fact as to whether the

prosecutor exercised independent judgment. Summary judgment for the defendant officers was therefore appropriate. Id.

3

[3] Although Sloman addressed whether a plaintiff could

recover attorneys’ fees incurred in defending a criminal prosecution, we see no reason to apply its rule narrowly. Therefore,

Sloman’s rule should apply to malicious prosecution claims,

including Newman’s. Newman contends, however, that Sloman means only that an officer is not liable for damages “if

a malicious prosecution plaintiff’s version of the subject

events is different than the police version, but the prosecutor

would have filed” a criminal action based even on the plaintiff’s version. 

We decline to read Sloman’s clear statement so narrowly.

First, Newman’s argument places the focus on the wrong

party. The question, under Smiddy, is not whether the prosecutor, in the face of conflicting accounts, would have filed

charges based on the plaintiff’s story, but whether she would

have done so based on the officer’s. Prosecutors generally rely

on police reports—not suspect’s stories—when deciding

whether charges should be filed. We presume they rely on

their independent judgment when deciding whether such

8900 NEWMAN v. COUNTY OF ORANGE
reports warrant the filing of criminal charges, unless contrary

evidence is presented. If charges are filed, Smiddy protects the

officers unless such evidence shows that officers interfered

with the prosecutor’s judgment in some way, by omitting relevant information, by including false information, or by pressuring the prosecutor to file charges. A suspect’s account of

an incident, by itself, is unlikely to influence a prosecutor’s

decision, and thus, it cannot, by itself, serve as evidence that

officers interfered with the prosecutor’s decision. 

Indeed, Newman’s argument would effectively nullify the

presumption entirely. We are hard-pressed to conceive of a

malicious prosecution case in which the plaintiff’s version of

events would not conflict with the arresting officer’s account.

In virtually every case, then, the presumption would be rebutted, and it would never limit the liability of the officer, contrary to its stated purpose.

[4] We must therefore reject Newman’s argument. To rebut

the presumption of independent judgment and to survive summary judgment on a malicious prosecution claim, a plaintiff

must provide more than an account of the incident in question

that conflicts with the account of the officers involved. 

B

Newman finally argues that he introduced sufficient evidence to rebut the Smiddy presumption. 

1

First, Newman claims that “Deputy Johnson’s probable

cause declarations contradicted several of the material issues

of fact shown in his Initial Crime Report.” There are some

differences in the two documents. In his initial crime report,

Johnson says that he told Newman to get out of his vehicle,

while in the probable cause declaration, Johnson only says

that Newman “exited his vehicle.” In the crime report, JohnNEWMAN v. COUNTY OF ORANGE 8901
son states that he told Newman to put his hands behind his

back, but in the probable cause declaration, Johnson says that

he attempted to search Newman and told him to put his hands

behind his back. We are not persuaded that these discrepancies are material. 

[5] The probable cause declaration and the initial crime

report agree that Newman reacted violently when Johnson

informed him that he was being arrested; he yelled, “You’re

not going to arrest me for this,” and hit Johnson with his right

arm. A struggle ensued that ended only when backup officers

arrived to help subdue Newman. The minor differences in the

two accounts do not concern Newman’s resistance or Johnson’s response. As such, they have no bearing on whether

Johnson interfered with the prosecutor’s independent judgment because they do not concern the conduct for which

Newman was ultimately charged—resisting, obstructing, or

delaying an officer. 

2

[6] Second, Newman offers the fact that Deputy Johnson

initially denied listening to his personal audio tape recorder

on the day of Newman’s arrest, but later changed his story

after being confronted with a video that showed him doing

just that. Johnson stated that he believed his tape was already

full when he arrested Newman and that he turned the tape in

after his shift. The tape was never located, and the record contains no evidence as to what it did or did not contain. More

importantly, neither Johnson’s probable cause declaration nor

his initial crime report say anything about whether he did or

did not listen to his recorder. We are not convinced that the

fact that an officer may have forgotten, over a year after the

fact, that he listened to an audio recording that may or may

not have recorded anything can, by itself, be considered

“ample evidence from which a reasonable jury could conclude

that the arresting officers, through false statements and mate8902 NEWMAN v. COUNTY OF ORANGE
rial omissions in their reports, prevented the prosecutor from

exercising independent judgment.” Barlow, 943 F.2d at 1137.

3

[7] We therefore conclude that Newman failed to provide

sufficient evidence to overcome the presumption of independent judgment. 

III

In summary, the fact that a plaintiff’s version of an incident

conflicts with that of the law enforcement officers involved is

not enough to defeat the presumption that a prosecutor exercises independent judgment. A plaintiff who presents only

such evidence cannot survive summary judgment on a malicious prosecution claim. Newman’s evidence is therefore

insufficient to rebut the presumption, and the district court’s

grant of summary judgment on his malicious prosecution

claim is therefore 

AFFIRMED.

NEWMAN v. COUNTY OF ORANGE 8903