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

T H O M A S L E E G O L D S T E I

N , Plaintiff-Appellant

,

v

.

C I T Y O F L O N G B E A C H ; J O H N H E N R Y M I L L E R , in his individual and official capacity ; W I L L I A M C O L L E T T E , in his individual and official capacity ; L O G A N W R E N , in his individual and official capacity ; W I L L I A M M A C L Y M

A N , in his individual and official capacity

, Defendants

,

and

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

N G E L E S , Defendant-Appellee

. N o. 10-56787

D.C. No. 2:04-cv-09692- A HM-E

OPI NI ON

A ppeal from the United States District Court for the Central District of California A. Howard Matz , District J udg e, Presiding

Arg ued and Submitted November 8, 2012—Pasadena, California

F iled May

8, 2013G O L D S T E I N V

. C I T Y O F L O N G B E A C H 2

B efore: Stephen Reinhardt and Sidney R. Thomas, Circuit J u dg es, and Gloria M. Navarro, District J udg e. *

O pinion by J udg e Thomas; Concurrence by J udg e Reinhardt

SUMMARY * *

Civil Rights

The p anel reversed the district court’s g rant o f a m o tion for judg ment o n the pleading s, entered following a decision by the United States Supreme Court, and held that the County of L os Ang eles could be liable pursuant to 42 U.S.C. § 1983 because the district a ttorney acted a s final policy maker for the County when adopting and implementing internal polices a nd procedures related to the use of jailhouse informants.

Plaintiff spent 2 4 y ears in prison after being convicted for murder based larg e ly upon the perjured testimony o f unreliable jailhouse informant E d ward F ink. He was released after the district court determined that F ink had lied and that it mig ht have made a difference if the prosecution had told plaintiff’s lawy er that F ink had received prior rewards in
return for fa v o rable testimony

. Subsequently

, in plaintiff’s § 1983 case, the Supreme Court held that the L o s Ang eles

* T h e Ho n o rab le Glo ria M. Nav arro , District J u d g e f o r th e U.S. District Co u rt f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h 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.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 3

County district a ttorney and chief de p u t y district attorney

were absolutely immune from plaintiff’s claims that the prosecution f

ailed to disclose impeachment material due to a failure to properly tra i n p r osecutors, failed to properly supervise prosecutors, and failed to establish an information
sy stem con t aining potential impeachment material about informants. Van de Kamp v G oldstein

, 5 5 5 U .S. 335, 339 (2009). On remand, the district court, among other thing s, g ranted the County ’s motion for judg ment on the p l eading s.

Reversing the district court, t h e p a nel held that the L os Ang eles County District Attorney represents the County when establishing administrative p o licies and training r elated
t o the g eneral o peration of the district attorney ’s offic e, including the establishment o f an index c ontaining information reg arding the use of jailhouse informants. Therefore, a cause of action may lie ag ainst the County under § 1983.

J udg e Reinhardt concur

re d w ith the opinion and wrote separately to emphasiz e the p roblems related to t h e epony mous and notorious Edward F ink and to ex plain why he found unpersuasive the Califor n i a S u p r e m e C o urt’s r easoning in Pitts v

. County of Kern
, 9 49 P.2d 920, 9 2 3 ( C al. 1 998) (holding that the district attorney represents the state, not the county , w hen preparing to prosecute and when prosecuting crimes, and when establishing policy and training employ ees in these areas).G O L D S T E I N V

. C I T Y O F L O N G B E A C H 4

COUNSEL

B arrett S. L itt and L indsay B . B attles, L itt, Estuar & Kitson, L L P, L os Ang eles, California, for Plaintiff-Appellant.

Tomas A

. Guterres a

nd Catherine M. Mathers, Collins Collins Muir + Stewart L L P, South Pasadena, California; Timothy T. Coates and Cy n thia E. T o b isman, Greines, Martin, Stein & Richland L L P, L os Ang eles, Califo r n i a , for Defendant-Appellee.

OP INION

THOMAS, Circuit J udg e :

W e consider in this case whether a district a t t o rney acts

as a local or a state o f

ficial when establishing pol i c y a n d
t r a ining related to the u se of jailhouse informants. W e f ind that, as to the policies at issue here, the district attorney was acting as a f

inal policy

maker for the County of L os Ang eles. W e thus reverse the district court’s g r ant of the motion for judg ment on the pleading s and remand the case. 1

I

Thomas Goldstein spent 24 y e a rs in prison after being convicted for m u r d er b ased larg ely upon the p erjured testimo n y o f a

n unreliable jailhouse informant, the
ap t r o n y mic E dward F ink. Van de Kamp v Goldstein

, 555 U.S. 335, 339 (2009); see also Thompson v. Calderon

,

1 A p p ellan t ’ s m o tio n

f o r j u d icial n otice is GRA NT ED.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 5

120 F

. 3d 1045, 1053-1054 (9th Cir. 1 997) (describing F ink a s a “perennial informant,” and d e scribing his ex ploits in some detail), rev’d , 523 U.S. 538 (1998).

F ink was a he roin addict and convicted felon who h ad previously received reduced sentences by testify ing i n other

cases a nd received a reduc e d s e ntence in ex chang e for his testimony ag ainst Goldstein. Goldstein v. S uperior Court
, 195 P.3d 588, 590 (Cal. 2008). Some prosecutors in the L os Ang eles Coun t y District Attorney ’s o ffice alleg edly knew about F ink’s history

, b ut failed to inform the prosecutors try ing Goldstein’s case or G oldstein’s c ounsel that F ink h ad testified before o r that he receive d a b e nefit for testify ing
ag ainst Goldstein, and F ink lied o n t h e s tand when he was asked about previous a ssistance g iven or benefits rece i ved. Van de Kamp , 555 U.S. at 339.

Goldstein was convicted a lmost solely on the b a s i s o f F ink’s testimony

. The California Supreme Court ex p lained the evidence ag ainst Goldstein:

I n 1979 Goldstein was an eng ineering student and Marine Corps veteran with n o criminal history

. He became a murder suspect after an ey ewitness to an unr el ated shooting saw the
g unman enter Goldstein’s apartment b uilding

. No witness or forensic evidence connec ted Go l dstein with the murder victim, b ut L ong B e ach police detectives showed Go l d stein’s
p h o t o g r a p h

, a m o n g o t h e r s , t o Lo r a n Campbell, an ey ewitness to the homicide. Ca mpbell did not recog niz e any one in the photo lineup, and Goldstein did not match Campbell’s description of the s u spect.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 6

However, a detective asked if Goldstein could have been the person Campbell saw running from the scene. Campbell said it was possible, thoug h he was not certain.

Goldstein was arrested and placed in a jail c ell with Edward F l o y d F ink, a heroin addict a nd convicted felon. A t Goldstein’s trial, F ink testified that Go ldstein said he was in jail because he shot a m a n in a dispute over money

. Goldstein v. Superior Court , 195 P.3d 588, 590 (Cal. 2008). Campbell later recanted h is identification of Goldstein, leaving F ink’s testimony a s the basis for the conviction. I d.

I n 1998, Goldstein filed a habeas pe t i t i on in the Central District of California. Van de Kamp
, 555 U.S. at 339. At an evidentiary hearing

, the district court ag reed t h a t F ink h ad lied and t h a t i t m ig h t h ave made a difference “if the prosecution had tol d Goldstein’s lawy er that F ink h ad received prior rewards in return for favorable testimony [ .] ” Id. at 339. The court ord ered the state to g rant Goldstein a

new trial o r r elease h im, and the Court of Appeals affirmed. Id. The state decided to release Goldstein, who had already served 24 y ears of his sentence. Id.

Goldstein t hen filed this action under 42 U.S.C. § 1983. I d

. a t 3 40. A s relevant h ere, G oldstein claims that the L o s Ang eles County District Atto rn ey ’s Office failed to c reate any sy stem for the Deputy District Attorney s handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and o t h er impeachment informatio n , and failed to train Deputy District Attorney s toG O L D S T E I N V

. C I T Y O F L O N G B E A C H 7

d i s seminate this information. Goldstein ex plains that th e district att o rney ’s office w as on notice that jailhouse informants were falsely testify ing and considered the creation of a sy stem to track benefits provided jailhouse informants and o ther impeachment information, but failed to create any sy stem.

I n 2009, the United St a t e s Supreme Court addressed whether the L os Ang eles County district attorney a n d c hief deputy district attorney had a bs o lute immunity from suit for Goldstein’s claims. W hile the Supreme Court “ag ree[ d] with Goldstein that, in making these claims, he attack[ e d] the office’s admin i s t

r a t i v e p rocedures,” it concluded that “[ t] hose claims focus upon a certain kind of administrative oblig at i on—a kind that itself is directly connected with the conduct o f a trial.” Van de Kamp
, 5 5 5 U .S. at 344. Therefore, the Court held that the L os Ang eles County district attorney and chief deputy district attorney w e re absolutely immune from Goldstein’s claims that the prosecution failed
to disclose impeachment material due to a failure to properly train prosecutors, failed to properly supervise prosecutors, and failed to establish an information sy stem co n t aining potential impeachment material a b o ut informants. Id. at 339.

On remand, the district court entered judg ment in favor o f L os A ng eles County district attorney J ohn Van de Kamp a nd chief d eputy district attorney Curt L ivesay

. 2 As to the County of L os Ang eles’ motion for judg ment on the plea d i ng s, the district court ex plained that this Court h as n o t h a d occasion

2 T h e d i strict co u rt h ad also d ism issed w i t h p r ej u d ice claim s ag ain st Lo n g B each

, C alif

o rn ia d ef en dan ts th e City o f L o n g B each

, J o h n H e nr y Miller, William Co llette, an d W illiam MacL y m an b ased o n a settlem en t b etw een th o se p arties an d Go l d stein

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 8

to address the c laims at issue here, but “reluctantly concluded” that the district attor n e y acts on behalf of the state, rather than the county , in setting policy r elated to jailhouse informants “in lig ht o f W einer [ v. San Di ego County
, 210 F

. 3d 1025 (9th Cir. 2000)] a nd the two decisions

o f [ t he N orthern District of California] construing it.” Therefore, the district court g ranted t he County of L os Ang eles’ motion for judg ment on the pleading s.

W e have jurisdiction pursuant to 28 U. S

. C

. § 1 291, a nd

we review an or d er g r anting a motion for judg ment on the pleading s de novo. Harris v

. Cnty. of Orange
, 682 F .3d 1126, 1131 (9th Cir. 2012). F o r purpo ses of our review, “[ a ] ll material alleg ations in a complaint must be taken as true a nd viewed in the lig h t most favorable to the plaintiff.” Geraci v

. Homestreet Bank

, 347 F .3d 749, 751 (9th Cir. 2003).

II

“Pursuant t o 4 2 U.S.C. § 1 983, a local g overnment may be liable for constitutional torts commi t ted by its officials according to municipal policy

, practice, or custom.” W einer

v. San Di e

g o Cnty.
, 210 F .3d 1025, 1028 (9th Cir. 2 000) (citing Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690–91 (1978)). “ To h old a local g overnment liable for an official’s conduct, a plaintiff must first establish that the official (1) h ad final p olicy

making au t h o rity concerning the action

. . . at issue and (2) was the policy maker for the local go v er n ing body for the purposes of the p a r t i c ular act.” Id. at 1028 (citing McMillian v. Monroe Cnty.
, 520 U.S. 781, 785 (1997)). States and state offi c i a ls acting in their official capacities cannot b e sued for damag es under Section 1983. W ill v. Mich. D ep’t of State Police

, 4 9 1 U

. S. 58, 7 1 ( 1 989);G O L D S T E I N V

. C I T Y O F L O N G B E A C H 9

see Ceballos v. Garcetti , 361 F

. 3d 1168, 1183 n.11 (9th Cir. 2004).

Here, all parties ag ree that the district attorney is the relevant policy

maker. Thus, the viability of Goldstein’s

c l a i m turns on w hether the L os Ang eles District Attorney acted here as a policy

maker for the state or fo r t h e county

. This determination is made on a function-by

- f u n c tion approach b y a naly

z ing under state law the o rg aniz ational
structure and control over the district attorney

. See McMillian v. Monroe Cnty. , 520 U.S. 781, 785–86 (1997).

A

I n M cMillian

, the Supreme Court fi r s t s et out the procedure to d etermine whether a policy maker acts o n behalf of the state o r local g overnment. T h e case involved the sheriff of Monroe County
, Alabama, and the Court soug ht to determine whether he acted as a state or local o f f i cial when intimidating a witness into making false statem ents a nd suppressing ex culpatory evidence. 520 U.S. at 784. The Co u r t w as c lear that the inquiry is n ot undertaken in a “categ orical, ‘all or nothing ’ m a n ner,” but rather that the “cases o n the liability of local g o vernment s u nder § 1983 instruct us to ask wheth e r g overnmental officials are final policy makers for the local g overnment in a particular area, o r on a particular issue.” Id. at 785 (citations omitted).

The Court ex plained that the “inquiry is dependent on an

a naly sis of state law.” Id. at 786. I t looked firs t t o t h e Alabama Constitution, a

n d concluded that “the constitutional provisions concerning sheriffs, the historical development o f those provisions, a

nd the i n t e r

p retation g iven them by the Alabama Supreme Court strong ly support Monroe County ’sG O L D S T E I N V

. C I T Y O F L O N G B E A C H 10

contention that sher iffs represent the State, at least for some purposes.” Id. at 787. Alabama had taken specific steps both i n i ts Constitution a

nd statutes to increase state control ov e r sheriffs and move the authority to impeach sheriffs “from the

c o u n t y courts to the State Supreme Court, because o f t h e failure of county courts to punish officers for neg l ec t o f duty .” Id. at 788 (citation and alterations omitted).

W h en looking to Alabama’s statutes, the Supreme Court

ex p lained that sheriffs must “ attend upon” state courts in the county , “obey t h e l awful o rders and directions” of state courts, a nd “ex ecute a

nd return the process and orders of any state court, even tho s e outside his county .” Id. at 789 (internal quotation mark s and citation omitted). “[ T] he presiding circuit judg e ex ercise[ s] a g eneral supervision over the county sheriffs in his c ircuit, just as i f t h e sheriffs a re normal court [ i.e.
, state] e mploy e e s

. ” Id. at 790 (alterations in orig inal) (internal quotation marks and citation omitted).

“ [M ]o st importantly ,” the Court ex p lained, “sheriffs are g iven complete authority to enforce the state crimina l l aw in their counties” and must report evidence of c r imes to the district attorney (who is, in Alabama, a stat e official), while the counties have no powers of law enforc e m e n t

. Id. The
go v ernor and attorney g eneral can “direct the sheriff t o investig ate a

ny alleg ed violation o f law in their counties,” a nd the sheriff must “promptly ” comp l e t e the investig ation a nd write a report to t h e s t a t e official. Id. a t 791 (internal quotation marks a n d citations omitted). F inally

, the Court noted that “the salaries of all sheriffs are s e t b y the state leg islatu re , n o t by the county commissions.” Id. (citation omitted).G O L D S T E I N V

. C I T Y O F L O N G B E A C H 11

On the other hand, the Supreme Court ex plained that “the sheriff’s salary is paid out of the county treasury , ” 3 “the county provides t h e sheriff with e quipment (including cruisers),” “the sheriff’s jurisdiction is limited to the borders of his county ,” and “the sheriff is elected locally by the voters in his county .” Id. ( i n t ernal quotation marks and citation omitted). The Court noted but found “little merit” in the fact that t h e c ounty coroner fills temporary vacancies in the sheriff’s office, the sheriff is indi c a t ed in the c ode a mong “county officials” or “county employ ee s , ” a nd that the Monroe County Commission’s insuranc e policy may cover “some, but n ot all” of the claims ag ainst t h e S h e r iff in this

case. Id. at 7 9 2 n.7. The Court “d[ id] not find these provisions sufficient to tip the balance in favor o f petitioner” because the county commission’s influence over the sheriff’s operations was only

“attenuated and indirect.” Id. at 792.

Therefore, the Supreme Court c o n cluded that “the w eig ht of the evidence is strong ly on the side of the conclusion” that “Alabama sheriffs, when ex ecuting their law enf o rcement duties, r epresent the State of Alabam a , not their counties.” Id. at 793.

B

B a sed on our a n a l y sis of the relevant California constitutional and statutory provisions, we co n clude that California district attorney s act as local policy mak e rs when

3 T h e co u n ty w as n o t ab le to ch an g e th e sh erif f ’ s salary o r ref

u se to p ay h im

, th o u g h it co u ld “ d en y fu n d s

. . . b ey o n d w h at is reaso n ab ly

n ecessary .” McMill i a n , 5 20 U.S. at 7 9 1 (in tern al q u o tatio n m ark s an d citatio n o m itted ).G O L D S T E I N V

. C I T Y O F L O N G B E A C H 12

adopting and implementing internal policies a nd procedures related to the use of jailhouse informants.

W e beg in by ex amining district attorney s’ place within the structure of g overnment , and then by looking at the constitutional and statutory p rovisions relevant to power a nd duties o f district attorney s within their counties, as well a s the control the California Attorney General and the county boards of supervisors ex ercise over them. Our task, of course, is not

m e r ely to w eig h the amount of control that the Attor n e y General and county board of supervisors posse s s over a district attorney ; instead, we must decide whether the district attorney was acting on behalf of the state or the county

. As to g overnmental structure, “[ t] h e officers of a county [ include] [a] district attorney .” Cal. Go v

. C o d e § 24000. This is a lso reflected in Article XI of the California C onstitution, “L ocal Government,” under which “[ t] he L eg islature shall provide for c ounty power s, an elected county sheriff, an elected d istrict attorn e y , an elected
assessor, and an elected g overning body in ea c h county

. ” Cal. Const. art. XI
, § 1(b). Additionall y , a d istrict attorney must be a r eg istered voter of the county in which he or she is elected, Cal. Gov. Code § 24001, a nd is elected by the voters of the county , Cal. Gov. Code § 24009. A d istrict attorney may be removed from of fice by the same procedure a s for other city and county o f

ficials. Cal. Gov. Code § 3073.

Thoug h these stru c t ural provisions provide a helpful starting point for our analy sis, the state’s label of the district attorney as a county offici a l informs but of course cannot d etermine the result of o ur functional inquiry

. S e e McMillian

, 520 U. S

. at 7 92 n.7 (finding “little merit” in the fact that the sheriff is indicat e d in the code among “countyG O L D S T E I N V

. C I T Y O F L O N G B E A C H 13

officials” or “count y employ ees”). F or our more specific inquiry

, we f

o cus on district attorney s’ roles vis-a-vis the state Attorney

General and the county

board of supervisors.

F irst, Article V, Section 1 3 of the California Constitution
states:

Subject to the powers and duties o f the Governor, the Attorney Genera l shall be the chief law o ffi cer of the State. I t shall be the duty of the Attorney Genera l t o see that the laws of the State are uniformly and adequately enforced. The Attorney G ene r a l shall have direct supervision o ver every district attorney and sheriff a n d o ver such other law enforcement officers as may be desig nated b y law, in all matters p ertaining to the duties o f their r espective offices, and may require any of said officers to make reports concerning the invest i g ation, detection, prosecution, a nd punishment of crime in their r espe ct ive jurisdictions a s to the Attorney General may

seem advisable. W henever in the opinion o f the Attorney General a

ny l a w o f the State is
not b eing a d e quately enforced in any county , it shall be the duty of the Attorney General to prosecute any viola t i o ns of law of which the superior court shall h ave jurisdiction, and in such cases the Attorney General shall have all the p owers of a d istrict attorney

. W h en required by the public interest o r directed b yG O L D S T E I N V

. C I T Y O F L O N G B E A C H 14

the Governor, the Attorney General sh a l l assist any district attorney

in the discharg e of the duties of that office.

Cal. Const. art. V, § 13.

W e h ave already analy

z e d Article V, Section 13 of th e California Constitution as it r e lates to sheriffs’ supervision b y the Attorney Gene r a l

, and concluded that despite this provision, sheriffs are county officers for the purposes o f investi ga t i o n

. Brewster v. Shasta Cnty.
, 275 F

. 3d 803, 805 (9th Cir. 2001). W e c autioned that sig n ificant “reliance on Article V, section 13, would prove too much.” I d. at 809. “Under this provision, if taken to its log ical ex treme, all local law enforcement ag en cies in California would be immune from p rosecution for civil r ig hts violation, thereby rendering meaning less the decision in Monell , which preserves § 1983 actions ag ainst local g overnments.” Bishop Paiute Tribe v

. Cnty. of Inyo
, 2 91 F .3d 549 (9th Cir. 2002), vacated o n other grounds by Inyo Cnty. v. Paiute-Shoshone Indians

, 538 U.S. 701 (2003). I nstea d

, “ [ s] uch g eneral law enforcement authority ‘does not contemplate absolute control a nd direction’ o f the official s subject to the Attorney G eneral’s supervision.” B rewster , 275 F .3d at 809 (ci t i n g People v

. Brophy

, 120 P.2d 946, 95 3 (C al. Ct. App. 1942) (“[ I ]t is at

once evident that “supervision” does not contemplate control

. . . .”)); see also Pitts v. Cnty. o f Kern
, 949 P.2d 9 2 0
, 9 39 (C al

. 1998) (Mosk, J
., dissenting ) (ex plaining that Brophy ’s analy sis of the California Constitutional pro v i s ion “is still
g ood law”). 4

4 A co n trary co n clu sio n h ere th at t h e d istrict atto rn ey h ere acts o n b eh alf

o f th e state w o u ld b e in ten sio n w ith Brewster
, g i v en ou r co n clu sio n th ere th at th e s h erif

f act s o n b eh alf o f th e co u n ty w h en co n d u ctin gG O L D S T E I N V

. C I T Y O F L O N G B E A C H 15

Thoug h the Attorney G e n e r al “shall have direct

s u pervision over every district a ttorney and sheriff,” t h e Attorney General’s co n trol o ver the district attorney is quite limited: he or she is limited to requiring a district attorney to “make reports.” Cal. Const. art V, § 13; see Cal. Gov. Code § 12550. T he Attorney General may also “ c al l into conference the district attorney s” “ f or the purpose o f discussing the duties of their respective offices.” Cal. Gov. Code § 12524. This falls f a r s hort of a power to dictate policy to district attorney s statewide, and is in contrast to the sheriffs’ role in McMillian in whic h the g overnor a nd attorney g eneral could “direct the sheriff to investig ate any alleg ed violation of law in their counties,” and the sheriff h ad to“promptly ” complete the investig ation and write a report to the state official. M

cMillian

, 52 0 U

. S

. a t 791 (internal quotation marks and citations omitted).

F urther, unlike in McMillian

, there was n o sig nificant constitutional or statutory chang e that makes clear a trend to place district attorney s under state control. See id. a t 788. I nstead, when Article V, Section 13 w as proposed in 1934, it had as its g oal efficiency

and horiz ontal coordination, rather

in v estig atio n s ev en t

h o u g h th e A tto rn ey Gen eral h as m u ch g reater

s up e r v iso ry p o w er o v er sh erif f s th an d istrict atto rn ey s. Co mp a re Ca l

. Go v

. Co d e § 1 2 5 60 (“ W h e n ev er [th e A tto rn ey G en eral] d eem s i t

n ecessary i n th e p u

b lic in t erest he sh a ll d i rect th e activ i ties o f an y sh erif f relativ e to th e in v estig atio n o r d etectio n o f crim e w ith in th e j u risd ictio n of th e sh erif f

. . . .” (em p h asis ad ded )) with Cal. Go v

. Co d e § 1 25 5 0 (“ W h en [th e A t to rn ey Gen eral] d eem s it ad v isab le or n ece s sary in th e p u b l ic in terest, o r w

h en d ir e c t e d to do so by th e Go v ern o r, h e sh a ll a ssist an y d istrict a t t o r n ey i n th e d isch arg e o f h is d u ties

. . . .” (em ph asis ad d ed )). T h is is in co n trast to th e m an y p ro v isio n s o f th e Calif orn ia C o d e th at t

reat sh erif f s an d dist r i c t atto rn ey s i d en t ically

. S ee, e.g

. , Cal. Go v

. Co d e § § 1 2 52 4 , 2 4 00 0 , 2 4 0 0 1 , 2 53 0 0 , 2 5 3 0 3 , 2 96 0 1

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 16

than a desire to weaken district attorney s or g ive the Attorney General a dditional power. See 1934 Proposed Amendments
to Constitution, Propositions and Proposed L a ws at 9 (“[ T] he

manner in which the Dilling ers, the ‘B aby F ace’ Nelsons, the Machine Gun Kelly s, the Tuo h y s [ s ic] and numerous other criminal g ang s h ave been play ing hide and seek with the public a uthorities has truly became [ s i c ] a National disg race.”). Additionally

, district attorney s were added to the list of c ounty officials in a 1986 Amendment, which shows that the most recent trend in California is to c o n f i r m t he district a ttorney ’s place as a count y o f f i c e r. See Cal. Const. Art. XI , § 1(b), historical notes.

I f the Attorney General believes a district attorney is not adequately prosecuting crime, the At t o rney General is not g iven the power to force a d istrict attorney to act or a dopt a particular policy

, but instead may step in and “prosecute any violations of law” himself or herself. Cal. Const. art V, § 13;

see Cal. Gov. Code § 12550. The Attorney General may a lso, “with or without the concurrence of th e d i strict attorney , direct the g r and jury to convene” an d “ m a y take full charg e of the presentation of the matters to the g rand jury

. . . .” Cal. Penal Code § 923(a). The p o w er to act in place o f a district attorney is undoubtedly less than if the At t o rney General could force a district attorney to use his or her own time and
resources to act.

I f the A tt o rn e y General does step in to conduct a prosecution, “ i n such c ases the Attorney General shall have all the powers of a district attorney ,” Cal. Const. art V, § 13, which sug g ests that the Attorney General does not have those
powers unless and until he or she steps in to conduc t a particular prosecution hi m s e l f or herself. F inally

, the Attorney General is g iven the power to “assist the distr i ctG O L D S T E I N V

. C I T Y O F L O N G B E A C H 17

attorney in the discharg e of the duties of that office,” C a l

. Const. art V, § 13, but this similarly does not sug g est control

over or the power to mandate that a district a t t orney adopt a particular policy

.

Outside o f conducting c ri m i n a l p r o s e c u t ions, the Attorney General’s power is even more a ttenu a t e d : California authority indicates that district attorney s act on behalf of the county and are under the g eneral control of the c ounty board of supervisors. “The board o f supervisors shall supervise the official conduct o f all county officers,” including the district attorney , a

nd the district attorney ’s use of public funds. Cal. Gov. C o de § 25303. As did the state in McMillian

, the county board of supervisors “ ex ercise[ s] a g eneral supervision over the” district attorney , and for most purposes, di s t r i c t attorney s are treated as “ normal” county employ ees. See McMillian , 520 U.S. at 790 (alterations in orig inal).

The fact that the board of supervisors’ control “shall not be construed to affect the independent a nd constitutionally and statutorily desig nated investig at i ve and prosecutorial functions of the sheriff and district attorney of a county ,” Cal. Gov. Code § 25303, does not chang e this conclusion. As we have p reviously ex p lained when ana ly z ing this provision a s to the sheriff, this limitation seeks to insulate the sheriff and district attorney “fro m political p r essure.” Brewster
, 275 F .3d at 809. “The provision thus is akin to a separation of powers provision, and as su c h h a s no obvious bearing on whether [ they ] should be understood to act for the state or the county

. . . . Merely because a county official ex ercises c ertain functions independently of other p olitical entities within the county does not mean that he does not a ct for the county .” Id.
at 8 1 0. Therefore, even thoug h the board of supervisors does
not ex ercise complete control over the district atto r n ey , thatG O L D S T E I N V

. C I T Y O F L O N G B E A C H 18

d o es n ot mean that the district attorney was not acting o n behalf of the county

here.

Other provisions indicating that the district attorney here acts on behalf of the county include that the district attorney is paid “out of the c o unty treasury ,” Cal. Gov. Code § 28000,

a nd the board of supervisors “shall p rescribe t h e compensation” of the dis t ri ct attorney , Cal. Gov. Code § 25300; cf. McMillian

, 520 U.S. at 791 ( “[ T] he salaries of all sheriffs are set by the state le g islature, not by the county commissions.”). Necessary e x p e nses incurred “in the prosecution of criminal cases” are “county charg es,” Cal. Gov. Code § 29601, the district attorney must “account for all
money received by him in h is official c apacity and pay it over to the treasurer” of the county board of supervisors. “ T h e district attorney shall render leg al services to th e county without fee,” Cal. Gov. Code § 26520; is the “leg al a dviser” f or the c ounty if there is no county counsel, Cal. G o v

. C o d e § 26526; cannot “in any way advocate” a ga inst the c ounty , Cal. Gov. Code § 26527; and may defend the county ag ainst the State o f California in a state eminent domain proceeding

, Cal. Gov. Code § 26541.

F inally

, counties are required to defend and indemnify the district attorney in an a ction for d amag es. Cal. Gov. Code §§ 815.2, 8 2 5

. The county ’s oblig ation to defend a nd i n d e m nify the district a ttorney in an action f or damag es is a “crucial f actor [ that] weig hs heavily [ .] ” Streit v. Cnty. of Los Angeles

, 236 F .3d 552, 562 (9th Cir. 2001) (citation omitted). I n M c M illian

, the Court ex plained that the state’s responsibility for judg ments ag ainst the sheriff was “critical” f o r t he case a

nd “strong evidence in favor of the

. . . conclusion that sheri f

f s act on behalf of the State.” McMillian , 520 U.S. at 789.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 19

C

I n addition to constitutional a nd statutory provisions, the practical treatment of t he policies G oldstein addresses supports the conclusion that this is a local, n ot statewide, determination. I n 1988, a jailed informant demonstrated on 6 0 Minutes h ow easy it was to concoct a plaus i b l e “confession” to a crime b y a prisoner he had never even met; in part because of this demonstration, a L os Ang eles County Grand J u ry convened to conduct “ i n t e n s i v e investig ation” a nd heard testimony from 1 2 0 witnesses about the use o f jailhouse informants in L o s Ang eles County

. R e p o r t o f the 1989–90 L os A n g eles County Grand J ury , Investigation of the Involvement of Jail Ho u se Informants in the Criminal Justice System in Los Angeles County 1–2 (1990), available
at http://www.ccfaj.org

/documents/reports/jailhouse/ex pert/ 1 9 8 9

- 1 9 9 0 % 2 0 L A % 2 0 C o u n t y % 2 0 G r a n d % 2 0 J u r y %20Report.pdf.

The report it issued in 1990 recommended that the L os Ang eles County “District Attorney ’s Office should maintain

a central file w h i ch contains all relevant information
reg arding the informant,” id. at 149, whic h t h a t District Attorney ’s Office has now do n e. See Steve Cooley

, L os A n ge l e s C o u n t y D i s t r i c t A t t o r n e y ’ s O f f i c e , Le g a l P o l i c i e s M a n u a l 1 8 8 ( A p r i l 2 0 0 5 )

, a v a i l a b l e a t h t t p : / / w w w

. c c f

a j

. o r g / d o c u m e n t s / r e p o r t s / j a i l h o u s e / e x p e r t / L ACounty

DApolicies.pdf.

I n 2004, a California State Senate Resolution created the California Commission on the F a ir Administration of J ustice, which was asked to “make any recommendations a nd proposals d esig ned to further e nsure that the application and administration of criminal justice i n C a lifornia is just, fair,G O L D S T E I N V

. C I T Y O F L O N G B E A C H 20

and accurate[ .] ” California Commission on t h e F air Administration of J ustice, F inal Report 186 (2008), available
at http://www.ccfaj.org

/documents/CCF AJ F inalReport.pdf.

The Commission issued its final report in 2008 and made individualiz ed recommendations about informant testimony for the leg islature, police a g encies, prosecuto rs, judg es, a nd defense lawy ers. Id. at 13–14. The report specifically

r ecommended that “California D istrict A t t o r n e y O f f i c e s a d o p t

a written internal policy

, wherever feasible, to g overn the use of in-custody informants. The policy should p rovide [ for] the maintenance o f a central f ile preserving a ll records relating to contacts w ith in-custody informants, whether they are u sed a s witnesses o r not.” Id. I t is instructive tha t t h e C o mmittee, with sig nificant ex pertise with both district a ttorney s o ffices and state office, 5 specifi c a lly r e c ommended that “California District Attorney Offices” should maintain the central file o f informants, and did not include this a m ong its separate recommendations for the leg islature or sugge s t that the Attorney General promulg ate a rule. The Commission also conducted a survey o f California c ou nty district attorney s, and of the nine responses the Commission received, only two offices had a “policy [ that] requir es t h e maintenance of a central file of all informa n t i n f o r mation.” Id. at 4 7. This similarly sug g est s t h a t , at least up to this point, district

5 F o r ex am

ple, th e Ch air o f th e Co m

m issio n w as J o h n K. Van d e K am p , th e L o s A

n g eles C o u n ty District A tto rn ey at th e tim e Go ld stein w as tried an d later a tw o

- term A tto rn ey G en eral fo r t h e S tate o f Calif o rn ia. S ee Calif o rn i a Co m

m issio n on t h e Fair A d m in istratio n o f Ju stice, Fin al Rep o rt 1 (2 0 0 8 ), av aila b le at h ttp ://w w w .ccf aj .o rg /d o cu m en ts/ CCFA J Fin alRep o rt.p d f

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 21

attorney office policies related to infor m a n ts have been addressed by

the individual offices rather than by the state. 6

D

Taking all of these provisions tog ether, it is clear that the district attorne y acts on b ehalf of the state when conducting
prosec u t ions, but that the local administrative policies challeng ed by G o l d stein are distinct from the prosecutorial
act. Most sig nificant is the contrast between the steps t hat

were taken in Alabama to increase the state’s control over the sheriff in McMillian and the co n t ra ry California trend to categ oriz e district attorney s as coun t y o f ficials; the fact that “[ t] he board of supervis o rs shall supervise the official conduct of a ll c ounty officers,” Cal. Gov. Code § 25303; a nd the fact that the county m u s t d e f end and indemnify the district a ttorney in an action f or damag es, which the Supreme

6 W e d o r e c o g n ize t

h at th e f act th at th e A tto rn ey Gen eral h as n o t req u ired all d istrict atto rn ey o f f ices to ad o p t a p o licy creatin g a cen tral f i le f o r in f o rm an ts d o es n o t m ean th at sh e lack s th e p o w er to d o s o , b u t w e d o

n o te th at L o s A n g eles Co u n ty co n ten d s th at t h e A tto rn ey Gen eral h as

m u ch g reater p o w er th an

h as ev er b een ex ercised . A t o ral arg u m en t , f or

ex am p le, th e Co u n ty ex p lain ed th at th e A tto rn ey Gen eral h as th e p o w er to m ak e th e d ecisio n th at n o d eath p en alty cases w ill b e p ro secu ted in th e state o f Cal i fo r ni a, to req u ire d istrict atto rn ey s o f f ices statew i de to

m ain tain an “ o p en

- f

i le” p o licy

, o r to req u ire th at a cen tralized datab ase f or j ailh o u se in f

o rm an ts b e ad o p ted

. T h e Co u n ty o f f ered n eith er au th o rity f

or

n o r ex am p les o f an A tto rn ey Gen eral estab lish in g p o licy in th is w ay

. T h e Co u n ty w as also u n ab l e t o o f f er an d w e h a v e b e en u n ab le to f in d an y

ex am p le of th e A tto rn ey Gen eral step p in g in to tak e o v er a p ro secu tio n or d ictatin g an y s o rt o f p o licy t o a d istrict atto rn ey ’ s o f f ice w ith o u t a req u est f ro m th e d i strict atto rn ey ’ s o f

f ice th at h e o r sh e d o so

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 22

C o u rt deemed “critical” in M cMillian

, 5 20 U.S. at 789; se e Cal. Gov. Code §§ 8 15.2, 8 25. Even taking into account the control and supervisory

powers of the Attorney General, the L o s Ang eles County District Attorney represents the co u n t y when establishing a dministrative p o licies and training r elated
to the g eneral operati o n of the district attorney ’s o ffice, includi n g the establishment o f an index c ontaining information reg arding the use of jailhouse informants.

III

The County raises additional arg uments

. However, on close ex amination, none is persuasive.

The County ’s contention that the Supreme Co u r t ’s conclusion in Van de Kamp dete r mines the outcome o f this

case is incorrect. Thoug h the inqui r i e s of prosecutorial immunity and state o r local policy making may be related, they are separate. The prosecutorial immunity i n q u iry focuses on “policy con s i derations which compel civil immunity ,” Imbler v. Pachtman

, 424 U.S. 409, 4 2 9 (1976), and is a federal question that will have a consistent answer nationwide. S

ee Howlett v. Rose , 496 U.S. 356, 383 (1990). The state-local determination unde r S e ction 1983, althoug h also a f ederal question ultimately

, depends on a careful a nd thoroug h analy sis of s t a t e constitutional and statutory provisions, and w ill vary “from reg ion to reg ion, and from State to State.” M

cMillian v. M

onroe Cnty.
, 520 U

. S

. 781, 795 (1997). I n Van de Kamp
, the Supreme Court did not look
to or ex a mine California law, but focused o n c ommon-law traditions and policy impli c a tions in determining that the district attorney

was entitled to absolute immunity

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 23

The County similarly asserts, without citation, that California law conflates the two analy ses: district a t t orney s act as State officials in the same instances that they a r e protected by absolute prosecutorial immunity

. However, the California Supreme Court has e x plained that it is incorrect to “assume[ ] that the functions for w h ich a prosecutor may obtain absolute, as opposed to qualified, immunity parallel those f or w hich a district attorney repres e n t s the state, a s opposed to the county .” Pitts
, 949 P.2d a t 935. “ [ T] hese a re in fact separate inq u i r i e s

. ” Id. ; see also Pembaur v

. City of Cincinnati
, 475 U

. S

. 469, 474 n.2 (1986) ( holding county liable for prosecutor’s a c tions after peti t i o n er had conceded that prosecutor was absolutely immune).

Contrary to the County ’s ar gu m ent, our decision in W einer has no bearing on this case. I n W einer
, we held that

a “district attorney act[ s] on behalf of the sta t e , not the county , in deciding to prosecute” a person fo r a crime, but acknowledg ed that “this is not to say that district attorney s in California are state officers for all purposes. To the contrary , California law sug g ests that a distri c t a ttorney is a county officer for some p u rposes.” W e iner
, 210 F .3d at 1026, 1031. W e iner challeng ed the prosecutor’s decision to retry him for murder a fter he was g ranted a new t r i a l

. Id. at 1027. I n concluding that “a c ount y d i strict attorney acts as a state official when deciding whether to prosecute an individual,”

we focu s e d on the fact that, under California law, “[ i] n the prosecution of criminal cases [ the district attorney ] acts b y the authority

and in the name of the people of the state.” Id.
at 1 0 30 (citations omitted); see also Cal. Gov. Code § 26500. B ecause we do not addre s s the decision to prosecute an individual, the analy sis in W einer does not resolve t h e question before us today

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 24

Similar l y , t h e County is incorrect that we are bound b y the California Supreme Court’s determination in Pitts that the district a ttorney acts on behalf of the state for some purposes. Thoug h we must look a t the relevant state law a nd state

cou r t s’ characteriz ations of that law, the final determination under 42 U.S.C. § 1983 is a federal law statutory interpretation question; no deference is due to the ultimate conclusio n o f the California court that the provisions, taken

as a whole, indicate the district att o r ney was a state actor under Section 1983 for any particular function. See W einer
, 210 F .3d at 1025. “Althoug h we m u s t consider the state’s leg a l characteriz ation of the g overnment entities which a re parties to these actions, federal law provide s t h e r ule o f decision in section 1983 actions.” Streit v

. Cnty. of Los Angeles

, 2 36 F .3d 5 5 2
, 560 (9th Cir. 2001) (citations omitted). “State law does not control our interpretation of a federal statute.” Id. ; see a lso Cortez v. Cnty. of Los Angeles

, 294 F .3d 1186, 1191 (9th Cir. 2002); Bre w ster , 275 F .3d at 811.

Nonetheless, we n eed not d isrupt the California Supreme Court’s conclusion because Pitts addressed a district attorney function different than th e o n e w e confront today

. I n P itts
, the California Supreme Court concluded that “ t h e district attorney represents the state, not the county , when preparing
to prosecute and w hen prosecuting crimes, a nd when establishing polic y a n d training employ ees in these areas.” Pitts v. Cnty. o

f Kern
, 949 P.2d 920, 923 (Cal. 1998 )

. Pitts

a l l e g ed that the County and district attorney “establishe d a pattern, custom, and p r actice o f procuring false statements and testimony by threat,

. . . bribery

, a nd c oercion o f witnesses” that “failed to provide adequate training

, procedures, g uidelines, rules, and r eg u lations to prevent such conduct

. . . .” I

d. at 927. The co u r t noted that it was “ notG O L D S T E I N V

. C I T Y O F L O N G B E A C H 25

s e e k i ng to make a characteriz a tion of [ California distric t attorney s] that will hold true for every ty pe of official activity they eng ag e in,” b u t instead focused on the district attorney ’s function “when preparing to prosecute and when prosecuting criminal violations of stat e l a w , and when training a nd developing policies for employ ees eng ag ed in these activities.” Id. at 928.

The California Supreme Court analy z ed the provisions o f the California Constitution and the statutes discussed above, and based on these considerations, it concluded t h a t “when preparing to prosecute a nd when prosec u t i n g criminal violations of state law, a district attorney represents the state and is not a p o licy

maker for the county .” Id. at 9 3 4. That determination is not implicated by Goldstein’s claims.

As to training a

nd supervising staff, the C a l ifornia Supreme Court said that based on its conclusion that the district attorney represents the state “ w h en preparing to prosecute and when p rosecuting criminal v iolations o f state law,” it “further concludes it log ically follows that he or she also represents the state, and n o t the county , when training and d e v e loping policy in these areas. No meaning f ul analy tical dis t inction c an be made b etween these two functions.” Id. at 935. Separating these two functions would “require impossibly p recise distinctions” and would lead to “nonsensical,” “arbitrary

” results. Id.

The Pitts Court ex a mined the training and policies that “failed t o

. . . prevent” the u se of “threat,

. . . bribery

, a nd coercion of witnesses,” id. at 927, and the challeng ed policies

were p art of the training for d istrict attorney s’ preparation o f individual witness f

or pa rticular trials. I n Pitts
, child witness e s were coerced into testify ing falsely that theG O L D S T E I N V

. C I T Y O F L O N G B E A C H 26

d e f endants, their acquaintances or relatives, had sex uall y abused them. Id. at 923. Coerced testimony from the alleg ed victim of a crime is inex tricably linked to the prosecution of that crime.

The function at issue here, o n t he other hand, is disting uishable from t he question confronted by the Californ i a Supreme Court because Goldstein c halleng e s administrative policy and accompany ing training

, rather than prosecutorial training and p o l i c y

. Goldstein’s challeng e focuses on the failure to create an index that includes info rmation about benefits provided to jailhouse informants

a nd other previous knowledg e about the informan t s ’ reliability

, and the failure t o train prosecutors to use that index

. Goldstein a lleg es that it was the lack of an index that allowed F ink to lie about t h e benefits he received for testify ing ag ainst G oldstein, pre v e n ted prosecutors in Goldstein’s case from knowing F ink’s history

, and prevented Goldstein’s counsel from impeaching F ink.

The conduct at issue here does not involve prosecutorial strateg y , but r ather administrative oversig ht of sy stems used
to help prosecutors comply w i t h their constitutional duties. See Van de Kamp
, 5 55 U.S. at 344 (“W e a g ree with Goldstein that, in making these claims, he a ttacks the office’s administrative procedures.”); P i tts , 949 P.2d at 9 3 5 (“Our conclusion as to which entity the district attorney r epresents mig ht differ were plaintiffs c h al l e n g ing

. . . some other administrative function

. . . . ” )

. I n P itts
, there was no administrative f

unction involved. There can b e a “meaning ful analy

ti c al d istinction” between policies a nd training relating to prosecutorial functions and an index made and maintained as an administrative matter.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 27

IV

I n sum, we conclude t h a t the p o licies challeng ed b y Goldstein are distinct from the acts the district attorney

u n d ertakes on behalf of the state. Even taking into acco u n t the control and supervisory powers of the Attorney General, the L os Ang eles County District Attor n e y represents the county when e sta b lishing policy and training related to the

use o f jailhouse informants. Therefore, a cause of a ction may lie ag ainst the County under 42 U.S.C. § 1983. W e r e v er se the judg ment of the district court.

REVERSED AND REMANDED

.

REI NHARDT, Circuit J udg e, concurring :

I c oncur fully in J udg e T homas’s opinion and write separately to make two points, one brief and one less so.

I.

J udg e T h o m a s understates the problem with the
epony mous and notorious Edward F ink, if that is possible. I n the case that J udg e T h omas cites, Tho mpson v. Calderon

, 120 F .3d 1 045 (9th Cir. 1 997) (en banc), rev’d

, 5 23 U.S. 538 (1998), Thomas Thompson was ex ecuted on the basis o f F ink’s perjured testimony

. I t is u nlikely that Thompson was death-elig ible for his part in the crime, if he was g uilty at all of a n y offense. See g e n erally Stephen Reinhardt, The Anatomy o

f an Execution: Fairness vs. “Process”
, 74 N.Y.U. L

. Rev. 313, 322–26 (1999). At Thompson’s trial, the prosecutor committed prosec u t o r i a l m i s c o n d u c t thatG O L D S T E I N V

. C I T Y O F L O N G B E A C H 28

constituted a constitutional violation and r equired revers a l. See Thompson

, 120 F .3d at 1055. Additionally

, Thompson’s lawy er provided woeful l y inadequate representation, which constituted another constitutional violation that r equ i r e d reversal. See id. at 1053–54.

D es p ite a request to reverse Thompson’s conviction b y

seven California prosecutor s wi th ex tensive death penalty

ex p erience, including the author of California’s death penalty statute, the Supreme Court r e fused to consider F ink’s perjured testimony or any of the constitutional violations, on the dubious g r ound that our c ourt abused its d i s c r etion in recalling the mandate, on a basis that the Co u r t h a d never before re c og niz ed. Calderon v. Thompson

, 523 U .S. 538 (1998).

Althoug h Thompson was e x ecuted as a result o f F ink’s perjury (as well as the other unfortunat e judicial matters described above), the innocent Mr. Gold s tein was fortunate
enoug h to avoid that fate. See Goldstei n v

. Harris
, 82 F

. App’x 592, 593 (9th Cir. 2003) (affirming the district court’s
g r a n t of habeas relief). He n ow seeks civil damag es for spending twenty -four y ears of his life in prison, as a result o f the L os A ng eles County Dist r i c t A ttorney ’s Office’s failure
to adopt necessary and reasonable internal a d m i n istrative
p o licies and procedures. I ag ree that h e is entitled to pursue his claim.

II.

One of the princi p a l ar g uments on which the County relies is the California Supreme Court’s decision in Pitts v

. County of Kern
, 9 49 P.2d 920, 923 (Cal. 1998), in which that
court held that “the district attorney represents the state, notG O L D S T E I N V

. C I T Y O F L O N G B E A C H 29

the county , when preparing to p rosecute and when prosecuting crimes, and when e stablishing policy and training employ e es in these areas.” I ag r ee with J udg e Thomas that we

ar e not bound by Pitts and that the policy at issue in Pitts d iffers in kind from the administrative procedure tha t t h e District Attorney failed to implement in this case. I write separately

, however

, t o e x plain why I f ind the r easoning in Pitts to b e u npersuasive. I n short, the California S u p r eme Court’s reasoning in Pitts is imprecise on a q u es t i on that demands precision.

To beg in, the California Supreme Court never clearly

s t a t e s the scope of its holding

. On multiple o ccasions, the
state court writes that the s e tting of p olicy and training o f employ ee s “in these areas” is a state f unction. E

. g. , P itts
, 949 P.2d a t 923; id. a t 934. I can only presume that “in these areas” refers to the prosecution of c rimes. The problem is that virtually e very “ policy ” in a district attorney ’s of f i c e has

some r elationship to the prosecution o f crimes. Some policies

are directly related to the prosecutor i a l function—e.g

., a policy that prosecutors must instruct their witnesses to tell the
tr u t h at all times when testify ing

. Some procedures a re indirectly related, if a t all—e.g

., a procedure g o verning the disposal of c onfidential material in the office. I would c all the l a t t e r categ o ry of procedures “administrative.” The real question then is whether the matter at issue is prosecutorial o r

a d m i n i s t r a t i v e

. If p r o s e c u t o r i a l

, t h e n t h e d i s t r i c t attorney —under t h e c i r c u m s tances present in Pitts —serves a s

a state actor. I f administr ative, then the district attorney —as J udg e Thomas’s opinion for the court ex plains—ser v e s a s a county actor.

Th e C a l i fornia Supreme Court in larg e part avoided this question in Pitts

. I t stated that drawing lines woul d “ r e q uireG O L D S T E I N V

. C I T Y O F L O N G B E A C H 30

impossibly precise distinctions.” Pitts
, 949 P.2d at 935. I t further d e c l a

r e d that “no meaning ful analy tical distinction can be made between” individual prosecutions and the setting o f policy and training of employ ees. Id. Thus, it sug g ested that the establishing of all policies (including dress codes and the like) and the training of all employ ees (presumably including secretaries and janitors) is a state f unction, as well as the prosecution of all cases.

I find the California Supreme Court’s i m precise answer unpersuasive, f

or three reasons. F irst, the California Supreme Court failed to follow the process set forth i n McMillian

, which is for courts t o make a n independent determination “whether g o vernmental officials are final po licy makers for the local g overnment in a particular area or on a particular issue .” McMillian v. Monroe C o u nty , 520 U.S. 7 81, 785 (1997) (emphasis added). I n Pitts
, howeve r , the California Supreme Court made no function-specific determination. Rather, it relied primarily on its conclusion that a d i s t r i ct attorney is a state actor when c onducting individual prosecutions and asserted that it “log ically follow[ ed] ” that a district attorney was also a state a c tor when setting policy or training employ ees. Pitts
, 9 49 P.2d at 934–35. 1 I n contrast, in

our opinion for the court, we conduct a c lose ex amination o f the r elevant c onstitutional and statutory provisions a nd conclude that the “L os A n geles County District Attorney represents the county when e stablishing administrative policies and training related to the g e neral operati o n o f the district attorney ’s office, including the est a b l i shment of an

1 I t m ad e o n ly a passin g ref eren ce to o n e p ro v isio n o f th e Calif o r n i a Co n stitu tio n , A rticle V, S ect i o n 1 3
, w h ich is n o t sp ecif

ic to th e f u n ctio n at issu e in Pitts o r in th i s case. S ee Maj . Op . at 1 3

– 1 7

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 31

index containing information r eg ardin g the use of jailhouse informants.” Maj. Op. at 22.

Second, the California Supreme Court’s discussion is not internally consistent. Despite asserting that disting u ishing policy and training de c isions from individual prosecutorial decisions would require “impossibly precise distinc t ions.” Pitts
, 949 P.2d at 935, the state c o urt stated that its conclusion “mig ht differ w ere plaintiffs challeng ing a district attorney ’s alleg ed action or inaction re l ated to hiring or firing an employ e e

. . . or some other administrative funct i o n

. ” P itts
, 949 P.2d at 935. This distinction eludes me. The training o f employ e es is no more r elated to individual prosecutions than the hiring

, firing

, or disciplining of those e m ploy ees. I f “ no meaning ful analy

tical difference” ex ists between indiv i d ual
pr o secutions and employ ee training

, then it should n o t ex ist between individual p rosecutions a nd employ ee hiring o r firing ; y et the California Supreme Court sug ge sted that the latter mig h t yield a different conclusion. A better ex planation for the California Supreme Court’s inconsistency is that it
must have r ecog niz ed that its c o nclusion would otherwise c all into q uestion a vast swath of Se c t i on 1983 jurisprudence, in which counties are g enerally h e ld liable for failure to hire or fire decisions. See Bd. o

f Cnty. Comm’rs v. Brown
, 520 U.S. 397 (1997). U nlike the California Supreme Co u r t , we reach

a consistent c o nclusion here: c o u nties should be held liable for their administrative policies and procedures, including the training of their e mploy ees and the hiring and firing of those employ e es. See, e.g. , Connick v. Thompson

, 131 S. Ct. 1350, 1359 (2011).

Third, the California Supreme Court was simply incorrect when it stated that its conclusion follows as a matt e r o f “log ic.” The entirety of our opinion contradicts this assertionG O L D S T E I N V

. C I T Y O F L O N G B E A C H 32

of log ical inference. As w e have demonstrated throug h a close e x amination of the various constitutional and statutory provisions, a district attorney may a ct on behalf of the state when making prosecutorial d ecisions b ut act on behalf of the county when setting administrative p o l icy or training employ e es. See Maj. Op. at 11–22. I therefore ag ree with the hig hly respected Californi a S upreme Court J ustice Stanley Mosk who wrote:

[ T] here is no insurmountable a naly tical difficulty t o concluding that a county cannot be held li a b l e under section 1983 when the district attorney or one of his or her deputies,

as an ag ent of the state, c o mmits prosecutorial misconduct, but c an be held lia b l e when the di s t ri c t a ttorney ’s hiring

, training a nd
sup ervision prog r am, w hich the district attorney undertakes as a local p o licy maker, results in injury

to a person’s civil rig hts.

Pitts , 949 P.2d at 940 (Mosk, J

., dissenting ). I ndeed, several circuits have come to the same conclusion that we reach h ere, that district attorney s act a s county officers when deciding administrative policy and p r o c ed ures related to training o r

s u pervision, even thoug h they act as state officers when conducting prosecutions. E.g.
, W alker v

. City of New Y

o rk

, 974 F .2 d 2 9 3, 296 (2d Cir.1992); Carter v. City of Philadelphia

, 181 F .3d 339, 352 (3d Cir. 1999); Esteves v

. Brock

, 106 F

. 3 d 674, 678 (5th Cir.1997); Owens v

. Fulton County
, 8 7 7 F.2d 9 47, 952 (11th Cir. 1989). Thus, I believe that there can be and is a “meaning ful analy tical distinction” between prosecutorial decisions a nd the creation o f administrative policy

or the training of employ ees.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 33

I do not sug g est that it is a l w a y s easy to disting uish between p o licies that are prosecutorial in nature a nd procedures that are administrative in nature. That point

n otwithstanding

, it is the proper inquiry

. L ine drawin g i s frequently a difficult task for jurists

. I t is, however, one we perform reg ularly

. As J ustice Oliver W endell Holmes wrote almost a century

ag o:

Neither are we troubled by the question where
to d raw the line. That is the q uestion in pretty

mu c h every

thing worth arg uing in the law. Day and nig ht, y o uth and ag e are only ty pes.

I r win v. Gavit
, 268 U .S. 161, 168 ( 1925) (internal citati o n omitted) ; see also D o m i n i on Hotel v. State of Arizona
, 249 U.S. 265, 269 (1919) (Holmes, J ., for the court) (“[ T] he
constant business of the law is to draw such lines.”). Nor is he the only jurist of the Supreme Court to r ecog niz e this p oint. 2

2 10 E. 4 0 th S t

. Bld

g

. v. Ca llu s , 3 2 5 U

. S

. 5 7 8
, 5 8 4

- 8 5 (1 9 4 5) (Fran k f u rter, J
., f or th e co u rt) (“ O n th e term s in w h ich Co n g ress drew th e leg i slatio n w e can n ot escap e t h e du t y o f d raw in g lin es. A n d w h en lin es h av e to b e draw

n th ey are b o u n d to ap p ear arb itrary w h en j u d g e d so lely b y b o rd erin g cases. T o sp eak o f draw in g lin es in ad j u dicatio n is to ex p ress f ig u rativ ely th e t a s k o f k eep in g in m in d th e co n sid eratio n s relev an t to a p ro b l em an d th e du t

y o f co m in g d o w

n o n th e sid e o f th e co n sid eratio n s h av in g co n tro llin g w eig h t. L in es are n o t th e w orse f o r b ein g n arro w if th ey

are d raw n o n ratio n al co n s id eratio n s. ”); Ro sen b erg er v. Recto r & Visito rs

o f Un iv. o f Virg in ia
, 5 1 5 U.S. 81 9
, 84 7 (1 99 5 ) (O’ Co n n o r, J
., co n cu rrin g ) (“ Relian ce o n categ o rical p l at i t u d es is u n av ailin g

. Reso lu tio n in stead d ep en d s o n th e h ard task o f j u d g i n g —sif tin g th ro u g h t

h e d etails an d d eterm in in g w

h eth er th e ch allen g ed p ro g ram o f f en d s

. . . . Su ch j u dg m en t req u ires co u rts to d raw lin es, so m etim es q u ite f in e, b ased on t

h e p articu lar f acts o f each case.”). T h ese are b u t a h an df u l o f th e ex am

p les i n w hi ch J u stices of t

h e Su p rem e C o u rt h av e re c o g ni z e d th at lin e- d raw in g is in h eren t in

th e task o f j u d g in g

.G O L D S T E I N V

. C I T Y O F L O N G B E A C H 34

T he Pitts court abdicated its judicial function by adoptin g a rule that avoids a case-by -case inqu i r y i nto whether a particular function at issue is prosecutorial or administrative.