FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEATHER MARIE EWING; MARK LEE 

EWING; KATELYN JOYNER EWINGMUNNERLYN, a minor by and

through her father Mark Lee

Ewing; RACHEL MARIE EWING, a

minor by and through her parents

Heather Marie Ewing and Mark

Lee Ewing; SAVANNAH JAILYN

EWING, a minor by and through

her parents Heather Marie Ewing

and Mark Lee Ewing,

Plaintiffs-Appellants,

v.

CITY OF STOCKTON; JOHN D. 

PHILLIPS, District Attorney; LESTER

F. FLEMING, Deputy District

Attorney; WILLIAM JEROME HUTTO,

individually and in his capacity as

a City of Stockton Police Officer;

STEVEN MCCARTHY, individually

and in his capacity as a City of

Stockton Police Officer; JOHN J.

REYES, individually and in his

capacity as a City of Stockton

Police Officer,

Defendants-Appellees,

and 

16209
STATE OF CALIFORNIA; COUNTY OF  No. 08-15732

SAN JOAQUIN, D.C. No.

Defendants.  2:05-CV-02270-

WBS-GGH

OPINION 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted

October 6, 2009—San Francisco, California

Filed December 9, 2009

Before: Pamela Ann Rymer and A. Wallace Tashima,

Circuit Judges, and Lynn S. Adelman,* District Judge.

Opinion by Judge Adelman

*The Honorable Lynn S. Adelman, United States District Judge for the

Eastern District of Wisconsin, sitting by designation. 

16210 EWING v. CITY OF STOCKTON
COUNSEL

Terry Gross, San Francisco, California, for the plaintiffsappellants.

Shelley L. Green, Deputy City Attorney; Jason R. Morrish,

Deputy County Counsel, Stockton, California, for the

defendants-appellees.

OPINION

ADELMAN, U.S. District Judge:

DECISION

Plaintiffs-Appellants Mark and Heather Ewing and their

minor children (collectively “the Ewings”)1 filed a § 1983

action against the City of Stockton, California; Stockton

police officers John Reyes, William Hutto and Steven

McCarty (collectively “the officers” or the “officerdefendants”), and District Attorney John D. Phillips and Deputy District Attorney Lester Fleming, Jr. (collectively “the

1We will sometimes refer to the Ewings by their first names. 

EWING v. CITY OF STOCKTON 16215
DAs” or the “DA-defendants”), alleging violations of their

constitutional rights arising out of the search of their home

and the arrest of Mark and Heather in connection with a murder that they did not commit.2

 The district court granted summary judgment to defendants on most of the Ewings’ claims,

and the parties stipulated to the entry of judgment on such

claims under Fed. R. Civ. P. 54(b), permitting this appeal.

I. BACKGROUND

On the night of November 5, 2004, a fight broke out in the

parking lot of Shaker’s Bar in Stockton between men who had

been drinking at the bar and two men wearing “Jus’ Brothers”

motorcycle club vests. Mark Donahue and several friends

watched the fight. A woman bumped into or pushed Donahue,

and Donahue yelled at her. The woman called out for help,

and one of the men in vests struck Donahue with a Mag-lite

flashlight and stabbed him, resulting in his death. The two

men in vests left on motorcycles, with the woman on the back

of one of them. 

Stockton police officers Reyes and Hutto responded and

took statements from witnesses, including Donahue’s friends,

Brian Shirk and Richard Contreras. Shirk stated that the

woman was “in her mid-thirties” and that he had “never seen

these three people before but could definitely identify them if

he saw them.” The next day, Shirk telephoned Reyes, stating

that he had viewed photographs on the Jus’ Brothers website

and recognized the woman. He then met with Reyes and provided him with three website photos of the woman and later

a recorded statement. A district attorney’s investigator identified the woman as Heather Ewing, wife of Jus’ Brothers Vice

President Mark Ewing. Soon after, Reyes and Hutto sought a

search warrant for the Ewings’ residence. 

2The Ewings also asserted state law claims, which are not presently at

issue. 

16216 EWING v. CITY OF STOCKTON
In his affidavit supporting the request for a warrant, Hutto

included reports of Shirk’s on-the-scene statement and of his

subsequent identification of Heather. He stated incorrectly

that Heather had recently been arrested for domestic violence,

basing this statement on a file pertaining to a Nicolette Marie

Ewing rather than Heather Marie Ewing. He also included a

summary of Shirk’s November 7, 2004 recorded statement to

Reyes and represented Shirk as having said, “I don’t remember what the name was that the female called out, but the

name ended with the letter ‘K’.” However, Shirk actually said

that it “may, might have had like, uh, uh K type of sound at

the end of it, like a Mike or Jack.” 

Hutto concluded the affidavit as follows: 

Based on my training and experience, as well as the

above facts, I believe Heather Marie Ewing and possibly her husband Mark Lee Ewing may have been

involved in the homicide that occurred at 2130

Country Club Blvd on Friday (November 5, 2004).

I also believe there is evidence related to the crime

of homicide located at 405 S. Carroll Ave, Stockton,

California [i.e., the Ewing residence].

A state court issued a search warrant, authorizing the officers to seize (1) indicia tending to establish the identity of the

persons in control of the premises; (2) items of clothing worn

by the murder suspect, including a Jus’ Brothers vest or

jacket; (3) weapons used to commit the murder, including any

knives, flashlights or tools matching those used in the crime;

(4) trace evidence, including hair, blood, fibers or finger

prints of the suspect; (5) narcotics or narcotic paraphernalia;

(6) written names or monikers on walls, furniture, items or

papers, or any photos, scrapbooks, letters or other documents

depicting fellow gang members or associates; and (7) electronic storage and computer equipment. 

Police executed the warrant at about 7:00 a.m. on November 8. After securing the residence, police discovered a handEWING v. CITY OF STOCKTON 16217
gun, knives, marijuana, a Mag-lite flashlight, a motorcycle

and indicia of the Jus’ Brothers motorcycle club. Heather was

present, and the officers arrested her for possession of the

drugs and gun. Mark had previously left the residence in a

truck listed in the search warrant, and the police stopped and

arrested him as well, apparently on drug and weapon charges.

Later on November 8, the officers showed photos to five

witnesses from Shaker’s Bar, three of whom identified

Heather as the female who summoned the biker who killed

Donahue. One witness provided a tentative (fifty to sixty percent) identification of Mark. Reyes testified that he contacted

Fleming who advised him to “add-book” murder charges.3

Because of the murder charges, Heather and Mark could not

obtain bail. 

Between November 8 and 10, a number of witnesses provided information to Reyes and Hutto that cast doubt on Mark

and Heather’s involvement in the murder. The bartender at

Shaker’s stated that Mark was not present on the evening of

the murder, and several anonymous callers said that the police

had arrested the wrong people and that the assailant was a

man named Frankie. 

On November 10, Reyes and Hutto met with Fleming and

Deputy District Attorney Mayo and shared their concerns

about the Ewings’ involvement. Fleming nevertheless filed a

complaint charging Mark and Heather with murder. On

November 12, Frank Prater and Robert Memory turned themselves in, in connection with the Donahue murder. On

November 15, the police released Mark and Heather and

dropped the murder charges against them.4

3Fleming testified that he could not recall the conversation. 

4Mark subsequently pleaded no contest to possession of marijuana. 

16218 EWING v. CITY OF STOCKTON
II. STANDARD OF REVIEW

[1] We review a district court’s grant of summary judgment

de novo. E.g., Conn v. City of Reno, 572 F.3d 1047, 1054 (9th

Cir. 2009) (citing McDonald v. Sun Oil Co., 548 F.3d 774,

778 (9th Cir. 2008)). On such review, taking the evidence in

the light most favorable to the non-moving party, we determine whether there are genuine issues of material fact and

whether the district court correctly applied the relevant substantive law. Friedman v. Boucher, 568 F.3d 1119, 1124 (9th

Cir. 2009), amended, 580 F.3d 847 (9th Cir. 2009). In order

to survive a motion for summary judgment on a § 1983 claim,

the plaintiff must establish a genuine issue of material fact

that the defendant (1) acted under the color of state law, and

(2) deprived him of a constitutional right. See, e.g., Levine v.

City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008).

III. DISCUSSION

The Ewings raise the following issues: (1) whether the

search warrant was supported by probable cause; (2) whether

it was sufficiently particular, and if not, whether its overbroad

portions were severable;5 (3) whether officers unlawfully

arrested Mark and Heather for murder; (4) whether they

wrongfully detained Mark and Heather after being made

aware of evidence tending to exonerate them; and (5) whether

the DA-defendants are entitled to absolute immunity. We

affirm the district court’s rulings on the first four but reverse

and remand on the fifth. 

A. Probable Cause for Issuance of Search Warrant

[2] We review the issuance of a search warrant deferentially, upholding it if the issuing judge “had a ‘substantial

5The Ewings also challenge Heather’s arrest on drug and gun charges,

but such claim is based solely on the alleged invalidity of the search warrant pursuant to which officers seized the contraband. 

EWING v. CITY OF STOCKTON 16219
basis’ for concluding [that] probable cause existed based on

the totality of circumstances.” Greenstreet v. County of San

Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994) (quoting

United States v. Bertrand, 926 F.2d 838 (9th Cir. 1991)). 

The task of the issuing magistrate is simply to make

a practical, common-sense decision whether, given

all the circumstances set forth in the affidavit before

him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information,

there is a fair probability that contraband or evidence

of a crime will be found in a particular place. And

the duty of a reviewing court is simply to ensure that

the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones

v. United States, 362 U.S. 257, 271 (1960)); see also United

States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002)

(“Probable cause requires only a fair probability or substantial

chance of criminal activity[.]”). Thus, a judge’s “determination that an affidavit provided probable cause to issue a search

warrant will be upheld unless clearly erroneous.” United

States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004).

[3] The Ewings contend that the police procured the warrant through deception. To prevail on such a claim, they

“must show that the defendant deliberately or recklessly made

false statements or omissions that were material to the finding

of probable cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th

Cir. 2004) (citing Galbraith v. County of Santa Clara, 307

F.3d 1119, 1126 (9th Cir. 2002)); see also Butler v. Elle, 281

F.3d 1014, 1024 (9th Cir. 2002) (“A plaintiff must make (1)

a substantial showing of deliberate falsehood or reckless disregard for the truth, and (2) establish that but for the dishonesty, the challenged action would not have occurred. If a

plaintiff satisfies these requirements, the matter should go to

trial.”) (internal quotation marks omitted). “Omissions or mis16220 EWING v. CITY OF STOCKTON
statements resulting from negligence or good faith mistakes

will not invalidate an affidavit which on its face establishes

probable cause.” United States v. Smith, 588 F.2d 737, 740

(9th Cir. 1978). Nor may a claim of judicial deception be

based on an officer’s erroneous assumptions about the evidence he has received. Id. at 739-40. 

[4] If a party makes a substantial showing of deception, the

court must determine the materiality of the allegedly false

statements or omissions. KRL, 384 F.3d at 1117; see also Butler, 281 F.3d at 1024 (“Materiality is for the court, state of

mind is for the jury.”). If an officer submitted false statements, the court purges those statements and determines

whether what is left justifies issuance of the warrant. See, e.g.,

Baldwin v. Placer County, 418 F.3d 966, 971 (9th Cir. 2005).

If the officer omitted facts required to prevent technically true

statements in the affidavit from being misleading, the court

determines whether the affidavit, once corrected and supplemented, establishes probable cause. See, e.g., Liston v. County

of Riverside, 120 F.3d 965, 973-74 (9th Cir. 1997). 

[5] The district court analyzed the Hutto affidavit and concluded that a reasonable jury could find that it contained two

deceptive representations: (1) that Heather had an arrest

record, and (2) that Shirk said that the female biker called for

help from a biker whose name ended with the letter K. The

officers do not contest these conclusions, and we agree with

them. Thus, we must determine whether the district court correctly concluded that the balance of the affidavit, consisting

mainly of Shirk’s description of the incident and his identification of Heather, was sufficient to establish probable cause.

[6] We agree with the district court. Neither of the problematic representations was critical to the probable cause

determination. The misstatement that Heather had recently

been arrested for domestic violence contributed nothing to the

judge’s finding of probable cause. Hutto did not, for example,

misstate the record of a critical informant, see, e.g., United

EWING v. CITY OF STOCKTON 16221
States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997), or of a suspect where the suspect’s record was an element of the offense

under investigation, e.g., a felon in possession charge.

Hutto likely included the representation that Shirk said that

the female biker called out a name ending in the letter K to

bolster the proposition that the female biker, believed to be

Heather, called out for her husband Mark.6 But Shirk did state

that the name may have ended in a K sound; thus, in this

instance, the affidavit contained an exaggeration rather than a

fabrication, and omission of the qualifier “may” was highly

unlikely to have substantially impacted the issuing judge’s

decision. Further, Hutto’s affidavit primarily focused on

Heather and contained ample evidence that she was the

female in question and that relevant evidence might reasonably be found in her home.

[7] Shirk’s identification of Heather constituted the key part

of the affidavit, and it was sufficiently reliable. First, Shirk

was a citizen witness, not an informant, and such witnesses

are generally presumed reliable. See United States v. Banks,

539 F.2d 14, 17 (9th Cir. 1976) (“A detailed eyewitness report

of a crime is self-corroborating; it supplies its own indicia of

reliability.”); see also United States v. Blount, 123 F.3d 831,

835 (5th Cir. 1997) (noting that “citizen informants, identified

bystanders, victims and crime scene witnesses may generally

be presumed credible by police in a way that professional

informants are not”) (internal quotation marks omitted); 2

Wayne R. LaFave, Search and Seizure § 3.4(a) (4th ed. 2004)

(noting that corroboration is generally not essential when an

average citizen reports a crime based on personal observations, and that in such cases reliability may generally be presumed).7

6

It appears that the female actually called out for Frank, i.e., Frank

Prater. 

7

In Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991), we

declined to adopt the “argument that merely because citizen witnesses are

16222 EWING v. CITY OF STOCKTON
Second, the judge could reasonably find the information

Shirk provided reliable under the circumstances. Indicia of

reliability include: 

1) the opportunity to view the criminal at the time of

the crime; 2) the degree of attention paid to the criminal; 3) the accuracy of the prior descriptions of the

criminal; 4) the level of certainty demonstrated at the

time of confrontation; and 5) [ ] the length of time

between the crime and the confrontation. 

Grant v. City of Long Beach, 315 F.3d 1081, 1087 (9th Cir.

2002), amended, 334 F.3d 795 (9th Cir. 2002).8 Shirk’s contemporaneous statement was that he was standing next to

Donahue when the female pushed him. The next day, when

events presumably remained fresh in his mind, Shirk viewed

photos on the Jus’ Brothers web site and “immediately recognized” the female. The DA’s investigator identified the

female as Heather Ewing, wife of Jus’ Brothers member Mark

Ewing. The next day, Shirk provided a more detailed statement, which included descriptions of all three bikers.9

presumptively reliable, the officers in this situation had no duty to examine further the basis of the witness’ knowledge or talk with any other witnesses.” However, in the present case, the officers spoke with multiple

witnesses, received the photos upon which Shirk based his identification,

and reviewed their findings with a district attorney’s investigator familiar

with the Jus’ Brothers. 

8

In determining whether an affidavit establishes probable cause for the

issuance of a search warrant, the court limits its review to the data contained within the four corners of the affidavit. United States v. Gourde,

440 F.3d 1065, 1067 (9th Cir. 2006) (en banc). In the present case, the

parties discuss much evidence outside the four corners of Hutto’s affidavit. Some of this evidence may be relevant to appellants’ arguments

regarding omissions from the affidavit, but it may not be considered in

evaluating the warrant itself. 

9The Ewings argue that Shirk’s description of the woman was influenced by his viewing of the website photos. In his initial statement he

described the woman as being in her mid-30’s; only after viewing the

EWING v. CITY OF STOCKTON 16223
[8] Third, the affidavit provided a substantial basis for concluding that there was a fair probability that police would discover evidence relating to the Donahue murder in the Ewing

home. Multiple witnesses stated that two men wearing Jus’

Brothers vests participated in the fight. Shirk identified

Heather as the female who rode off with one of the bikers.

The DA Investigator stated that Heather was married to Mark,

a Jus’ Brothers member. Based on this evidence, the issuing

judge reasonably concluded that the police might find evidence relating to the homicide in the Ewing home. The

Ewings argue that the affidavit did not establish that the

Ewings committed the murder. However, it did not have to.

It needed only to establish probable cause for the search. See

Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) (“Under

existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there

is probable cause to believe that fruits, instrumentalities, or

evidence of a crime will be found.”). 

The Ewings contend that the officers omitted other information casting doubt on Shirk’s identification of Heather. But

“[t]he government need not include all of the information in

its possession to obtain a search warrant . . . . The omission

of facts rises to the level of misrepresentation only if the omitted facts ‘cast doubt on the existence of probable cause.’ ”

website did he provide details. But the issuing judge was aware of these

facts, which do not undercut probable cause. Citing Simmons v. United

States, 390 U.S. 377 (1968), the Ewings complain that Shirk viewed the

website under suggestive circumstances, but we cannot fault the police for

the manner in which Shirk, on his own, investigated the case. Further, the

record suggests that Shirk did not identify Heather arbitrarily. He advised

Reyes that he looked through various photos before he spotted the female

biker, and he did not identify either of the male bikers from the website

photos. Thus, based on the what they knew at the time, the police had no

reason to doubt Shirk. The Ewings fault the officers for not exploring with

Shirk the fact that other women depicted on the website looked like

Heather. But in analyzing a judicial deception claim, we need not scrutinize police investigative tactics in this fashion. 

16224 EWING v. CITY OF STOCKTON
United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991)

(quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir.

1980)); see also United States v. Streich, 759 F.2d 579, 586

(7th Cir. 1985) (noting that Illinois v. Gates does not require

officers to apprise a judicial officer of everything); United

States v. Luciano, 785 F. Supp. 878, 881 (D. Mont. 1991)

(“Certainly, an investigating officer cannot be expected to

include the sum total of all of his investigation in the affidavit

supporting a search warrant.”). None of the details appellants

cite cast doubt on the existence of probable cause.10

The Ewings first assert that the officers should have

advised the judge that Shirk only briefly viewed the female

and that a helmet covered most of her face. But Shirk told the

officers “I looked right at her, that’s how I got a good look

at her.”

11 Shirk stated that the female wore a full face helmet,

but he did not say that it covered her face. Further, the officers

disclosed that the female wore a “full face helmet” in the affidavit. Thus, this information does not undermine Shirk’s identification or the judge’s issuance of the warrant. 

The Ewings next note that after viewing various DMV photos, including those of Mark and Heather, Contreras and

Rajala initially made no identifications. However, the officers

10As discussed above, the materiality of an omission is an issue for the

court. 

11The Ewings quote Shirk’s testimony from Prater and Memory’s trial,

but the officers obviously did not have this information at the time they

prepared the warrant affidavit. The Ewings also fault the officers for not

asking Shirk more questions, such as whether he had been drinking, how

long he looked at the female, whether her helmet face shield was up or

down, and what the lighting conditions were. But judicial deception claims

do not require an inquiry into the quality of the police investigation. See

generally Gates, 462 U.S. at 235-36 (recognizing that because affidavits

are typically drafted in the midst and haste of a criminal investigation, by

non-lawyers, they must be read with an understanding of that context and

accordingly held to a lower standard of scrutiny than that applied to pleadings filed in more formal proceedings). 

EWING v. CITY OF STOCKTON 16225
included Rajala’s statement in the affidavit. They did not

include Contreras’s non-identification,12 but given the strength

of Shirk’s identification, this omission does not cast doubt on

probable cause. See United States v. Colkley, 899 F.2d 297,

302 (4th Cir. 1990) (holding that omission of nonidentification from photo spread was not material, and that the

Fourth Amendment does not require an affiant to include all

potentially exculpatory evidence in the affidavit). 

[9] The Ewings also complain that prior to applying for the

warrant, the officers did not show photos to the bartender,

Jamie Whipp, or, after obtaining Shirk’s identification, seek

corroboration from Whipp or Contreras. But these are not the

type of omissions with which Franks13 and its progeny are

concerned. Once he has probable cause, an officer is not ordinarily required to continue to investigate or seek further corroboration. See, e.g., McBride v. Grice, 576 F.3d 703, 707

(7th Cir. 2009) (“An officer should pursue reasonable avenues

of investigation and may not close his eyes to facts that would

clarify the situation, but once an officer has established probable cause, he may end his investigation.”) (citing Ramirez v.

City of Buena Park, 560 F.3d 1012, 1023-24 (9th Cir. 2009));

McKinney v. Richland County Sheriff’s Dep’t, 431 F.3d 415,

418-19 (4th Cir. 2005) (“The fact that [the officer] did not

conduct a more thorough investigation before seeking the

arrest warrant does not negate the probable cause established

by the victim’s identification.”); Kelley v. Myler, 149 F.3d

641, 647 (7th Cir. 1998) (“The inquiry is whether an officer

has reasonable grounds on which to act, not whether it was

reasonable to conduct further investigation.”). Application of

this principle seems particularly appropriate in the present situation, where evidence, unless promptly seized, could have

disappeared and where the officers were particularly inter12After the Ewings’ arrest, Contreras did identify Heather as the female

biker from a photo spread. 

13See Franks v. Delaware, 438 U.S. 154 (1978). 

16226 EWING v. CITY OF STOCKTON
ested in seizing weapons used in a crime, as well as trace evidence such as hair, blood or fibers.14

The Ewings further argue that Shirk’s description of the

woman differed from that of other witnesses. But only a few

of the twenty-one witnesses interviewed at the scene mentioned the woman, and the Ewings do not point to any significant differences. Only Contreras provided a detailed

description, stating that the woman was possibly in her late

30’s, about 5’10” tall, 120-135 pounds, blond hair, wearing a

black helmet and dark clothing. Shirk subsequently described

the woman as late 20’s to mid-30’s, about 5’6” or 5’7”,

weighing 120-130 pounds, blond hair, wearing dark clothing

and a black helmet. Aside from Shirk’s statement that the

woman wore glasses, the two descriptions are quite similar.

Omission of this information did not mislead the judge. 

The Ewings next argue that the officers misrepresented that

the female biker enticed or otherwise instigated the confrontation with Donahue. But the portion of the affidavit containing

this statement consists of a near verbatim quote from the

police report of the on-the-scene interview with Shirk. The

Ewings do not argue that the officers falsified this statement;

rather, they argue that Shirk’s later, more detailed statement

indicates that the statement was inaccurate. But the officers

included a paraphrased version of the later statement in the

affidavit, which accurately relates Shirk’s contention that the

female started the confrontation by pushing Donahue. The

Ewings fault the officers for not including Shirk’s statements

that the female “looked completely harmless” and was “trying

to keep out of the way”, and that he didn’t “think she meant

anything by what she did.” The Ewings also note that Contr14It is also worth noting that on November 8, after the officers had

arrested Heather and Mark on gun and drug charges but before adding the

murder charge, they did present photo spreads to five witnesses, including

Whipp and Contreras, both of whom identified Heather as the female

biker. 

EWING v. CITY OF STOCKTON 16227
eras stated in his interview that the female appeared to be trying to get away from the fight. But however the confrontation

started, whether the female biker instigated it or was simply

trying to get away, it is undisputed that she pushed or jogged

Donahue hard, that he yelled at her, that she then called to one

of the bikers who immediately attacked Donahue and killed

him, and that she then fled the scene with the bikers. These

facts indicate that the judge reasonably concluded that the

officers might find evidence of the crime at the female’s home.15

Finally, the Ewings attack the district court’s statement that

there was reasonable suspicion that Mark was involved. However, this statement is irrelevant. The question was whether

there was probable cause to search the Ewings’ house, not to

arrest Mark.16

B. Particularity of Warrant

[10] A warrant must particularly describe “the place to be

searched, and the person or things to be seized.” U.S. Const.

amend. IV. This requirement is designed “to prevent ‘a general, exploratory rummaging in a person’s belongings.’ ”

United States v. McClintock, 748 F.2d 1278, 1282 (9th Cir.

1984) (quoting Andresen v. Maryland, 427 U.S. 463, 480

15The Ewings correctly note that the affidavit contains only Shirk’s

description of the female’s activity. Thus, the district court should not

have referred to a “myriad of witness testimony.” Nor should it have

stated that Heather’s vital statistics matched those recounted by others. No

others recounted any statistics. 

16The officers argue that they are entitled to qualified immunity in connection with the search warrant. However, qualified immunity is generally

unavailable in a judicial deception case. See Branch v. Tunnell, 937 F.2d

1382, 1387 (9th Cir. 1991) (stating that “if an officer submitted an affidavit that contained statements he knew to be false or would have known

were false had he not recklessly disregarded the truth, . . . he cannot be

said to have acted in an objectively reasonable manner, and the shield of

qualified immunity is lost”) (internal quotation marks omitted), overruled

on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119

(9th Cir. 2002). 

16228 EWING v. CITY OF STOCKTON
(1976)). However, “a search warrant need only be reasonably

specific, rather than elaborately detailed,” and “the specificity

required [ ] depend[s] on the circumstances of the case and

the type of items involved.” United States v. Brobst, 558 F.3d

982, 993 (9th Cir. 2009) (internal quotation marks omitted).

Relevant factors are: 

(1) whether probable cause exists to seize all items

of a particular type described in the warrant; (2)

whether the warrant sets out objective standards by

which executing officers can differentiate items subject to seizure from those which are not; and (3)

whether the government was able to describe the

items more particularly in light of the information

available to it at the time the warrant was issued.

United States v. Lacy, 119 F.3d 742, 746 n.7 (9th Cir. 1997).

[11] The district court found ¶¶ 5 and 7 of the warrant, pertaining to narcotics and computer equipment, overbroad, and

it severed the overbroad portions. The Ewings contend that

the district court should not have employed severance and that

other portions of the warrant are also overbroad. The Ewings’

argument regarding the propriety of severance consists of two

sentences and is based solely on the district court’s failure to

cite a Ninth Circuit case supporting application of the doctrine

of partial suppression in the civil context. However, the

Ewings offer no reason why the doctrine should not apply.

We have “endorsed a doctrine of severance” in the criminal

context, e.g., United States v. SDI Future Health, Inc., 568

F.3d 684, 707 (9th Cir. 2009); see also United States v. Sells,

463 F.3d 1148, 1150 n.1 (10th Cir. 2006) (noting that all federal circuits apply the doctrine), and see no reason not to

apply it in civil cases. As the court stated in Naugle v. Witney,

755 F. Supp. 1504, 1517 (D. Utah 1990):

It would seem highly anomalous for this court to

allow the admission of evidence obtained pursuant to

EWING v. CITY OF STOCKTON 16229
the valid portion of this Warrant in a criminal trial

while holding defendants civilly liable for the search

and seizure of that same evidence.

The fourth amendment is not applied with zero-sum

force in the criminal context, and the court knows no

compelling policy reasons why it should be so

applied in the civil context. Deterrence of police

conduct violative of the fourth amendment, the

prime justification for the exclusionary rule, is not

undermined by the severance doctrine because evidence seized pursuant to the invalid part of the warrant still is excluded. Similarly, in the civil context,

police overreaching is deterred by the liability that

may be imposed for that portion of the search conducted pursuant to the unconstitutional part of the

warrant.

Turning to the Ewings’ second argument, they contend first

that ¶ 1, regarding “Indicia tending to establish the identity of

persons in control of the premises,” is overbroad. However,

this court has long upheld warrants containing such language.

See, e.g., United States v. Alexander, 761 F.2d 1294, 1302

(9th Cir. 1985) (collecting cases). The Ewings argue that such

cases typically involve situations where the premises in question are used to commit crimes. See, e.g., United States v.

Whitten, 706 F.2d 1000, 1009-10 (9th Cir. 1983), implied

overruling on other grounds recognized by United States v.

Rodriguez-Rodriguez, 441 F.3d 767 (9th Cir. 2006). But the

Ewings cite no authority limiting the language to such cases.17

Further, in the present case, where the female biker — reasonably believed to be Heather — left the scene of the crime with

17The Ewings cite Whitten, in which the court expressed concern about

a general search of an individual’s papers and effects. 706 F.2d at 1010.

But the cited portion of the opinion addressed the execution of the search,

not the warrant itself (which contained similar indicia of control language,

and which the court upheld). 

16230 EWING v. CITY OF STOCKTON
two males, it was reasonable for the officers to seek such evidence. 

The same is true of the Ewings’ challenge to ¶ 6, pertaining

to gang material; the officers had information that two Jus’

Brothers members were involved in the fight outside Shaker’s

Bar, that one of them killed Donahue, and that Heather was

his companion. Thus, it was reasonable for the officers to seek

information that might enable them to identify the two gang

members. The Ewings argue that no evidence indicated that

Heather belonged to the gang; however, whether or not she

was a formal member, Shirk found her photo on the Jus’

Brothers website. 

The Ewings also argue that ¶¶ 2-4 are overbroad, but this

challenge is particularly weak. In ¶ 2, the judge authorized a

search for items of clothing worn by the suspect, including

Jus’ Brothers jackets or vests; in ¶ 3 for weapons the suspect

may have used, including knives, flashlights or tools, matching given descriptions; and in ¶ 4 for trace evidence, including

hair, blood, natural fibers or latent fingerprints that the suspect may have left. The Ewings complain that the warrant was

not limited according to the witnesses’ specific descriptions.

But the witnesses did not provide precise descriptions of the

clothing or weapons in question, making greater specificity

impracticable. The Ewings assert that ¶ 4 does not identify the

suspect, but evidence making such identification possible is

what the officers hoped to find. 

[12] Thus, for the reasons stated, ¶¶ 1-4 and 6 of the warrant are sufficiently particular, making application of the severance doctrine appropriate. See United States v. Sears, 411

F.3d 1124, 1130 (9th Cir. 2005).18

18Because the Ewings’ overbreadth claim fails, so too does their claim

that the officers unlawfully arrested Heather on drug and gun charges,

which claim is predicated on the invalidity of the warrant. 

EWING v. CITY OF STOCKTON 16231
C. Arrest of Mark and Heather for Murder

[13] “ ‘Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient to

lead a person of reasonable caution to believe that an offense

has been or is being committed by the person being arrested.’ ” Torres v. City of L.A., 548 F.3d 1197, 1206 (9th Cir.

2008) (quoting United States v. Lopez, 482 F.3d 1067, 1072

(9th Cir. 2007)), cert. denied, 129 S. Ct. 1995 (2009). As we

noted in Torres, which also involved an arrest for murder,

“the proper inquiry is whether the detectives had probable

cause to believe that [the plaintiff] had committed a crime,”

not merely that he or she was present at the scene or accompanied the responsible parties. Id.

In California, murder is unlawful killing with malice aforethought. See Cal. Penal Code § 187. An aider or abettor is one

who “ ‘acting with (1) knowledge of the unlawful purpose of

the perpetrator, and (2) the intent or purpose of committing,

encouraging, or facilitating the commission of the offense, (3)

by act or advice aids, promotes, encourages or instigates, the

commission of the crime.’ ” Juan H. v. Allen, 408 F.3d 1262,

1276 (9th Cir. 2005) (quoting People v. Beeman, 674 P.2d

1318, 1326 (Cal. 1984)). California also recognizes “a provocative act murder theory,” which “can be applied in ‘situations in which criminal defendants neither kill nor intend to

kill, but cause a third party to kill in response to their lifethreatening provocative acts.’ ” Torres, 548 F.3d at 1207 n.8

(quoting People v. Cervantes, 29 P.3d 225, 230 (Cal. 2001)).

As indicated above, the police had arrested Mark and

Heather on drug and weapon charges when they add-booked

the murder charge. Although the officers had discretion to add

murder charges on their own, following typical practice,

Reyes contacted the district attorney’s office to obtain advice

and spoke to Fleming. Reyes advised Fleming that three witnesses had identified Heather as the female biker and that the

police had discovered knives, a Mag-lite flashlight and Jus’

16232 EWING v. CITY OF STOCKTON
Brothers clothing in her house. He also advised Fleming that

one witness had made a weak identification of Mark. Fleming

advised Reyes to add-book a murder charge. As a result, Mark

and Heather were denied bail, prolonging their detention.19

The district court found that Heather’s arrest for aiding and

abetting murder was supported by probable cause but questioned the legitimacy of Mark’s. However, it determined that

the officers were entitled to qualified immunity in connection

with Mark’s arrest because they relied on Fleming’s legal

advice. We find that as to both arrests, the officers are entitled

to qualified immunity. As to its conclusion that Heather’s

arrest was supported by probable cause, the district court cited

no California cases. Moreover, the evidence supporting its

conclusion was slim. Limited evidence supported the notion

that the female biker instigated a confrontation with Donahue

(as opposed to bumping into him while trying to avoid the fracas) or that she intended to or did anything to encourage or

facilitate the attack on Donahue. See People v. Richardson,

183 P.3d 1146, 1189 (Cal. 2008) (stating that “mere presence

at the scene of a crime . . . [is] [in]sufficient to establish aiding and abetting”) (internal quotation marks omitted), cert.

denied, 129 S. Ct. 1316 (2009). The fact that the female biker

left the scene with the biker and was later in possession of

items that may have been connected to the offense does not

support a charge of aiding and abetting murder. No one contends that Heather was an accessory after the fact. 

[14] In any case, we need not determine whether the officers had probable cause to arrest Heather for murder because

the officers are entitled to qualified immunity. See Pearson v.

19As the Seventh Circuit noted in Holmes v. Village of Hoffman Estate,

511 F.3d 673, 682 (7th Cir. 2007), “probable cause to believe that a person

has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no

probable cause.” However, the parties agree that in the present case, the

arrest for murder was significant because it caused Mark and Heather’s

continued detention. 

EWING v. CITY OF STOCKTON 16233
Callahan, 129 S. Ct. 808, 818 (2009) (authorizing courts to

determine whether right at issue was clearly established

before deciding whether it was violated). The Ewings do not

establish that the unlawfulness of charging Heather with murder on the facts in question was clearly established. See Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (stating unlawfulness

must be apparent based on pre-existing law). Further, the officers were entitled to rely on the legal advice they obtained

from Fleming.20 Many courts, including this one, have

endorsed such consultation, see, e.g., Kijonka v. Seitzinger,

363 F.3d 645, 648 (7th Cir. 2004) (citing Arnsberg v. United

States, 757 F.2d 971, 981 (9th Cir. 1985)), and while it will

not automatically insulate an officer from liability, “it goes far

to establish qualified immunity.” Id.; see also Frye v. Kansas

City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004)

(“Although following an attorney’s advice does not automatically cloak [officers] with qualified immunity, it can show the

reasonableness of the action taken.”) (internal quotation

marks omitted).

The officers are similarly entitled to qualified immunity

with respect to their arrest of Mark. As the district court

noted, the evidence against Mark was slim. One witness made

a tentative identification. The officers did, however, have

some circumstantial evidence, including the Mag-lite, knives

and Jus’ Brothers paraphernalia found in the Ewing home.

They also had Shirk’s statement that the woman called out to

a man whose name may have ended in a K. Most significantly, however, they had Fleming’s recommendation to add

a murder charge. As stated, an officer’s consultation with a

prosecutor is not conclusive on the issue of qualified immunity. See, e.g., Dixon v. Wallowa County, 336 F.3d 1013,

1019 (9th Cir. 2003); Stevens v. Rose, 298 F.3d 880, 884 (9th

20Reyes expressed doubt as to the existence of probable cause, but his

subjective beliefs are irrelevant; the standard is objective. Lopez, 482 F.3d

at 1072. 

16234 EWING v. CITY OF STOCKTON
Cir. 2002). However, it is evidence of good faith, and in the

present case, it tips the scale in favor of qualified immunity.

D. Continued Detention of Mark and Heather

[15] As we explained in United States v. Ortiz-Hernandez,

427 F.3d 567, 574 (9th Cir. 2005):

A person may not be arrested, or must be released

from arrest, if previously established probable cause

has dissipated. “As a corollary . . . of the rule that the

police may rely on the totality of facts available to

them in establishing probable cause, they also may

not disregard facts tending to dissipate probable

cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th

Cir. 1988); BeVier v. Hucal, 806 F.2d 123, 128 (7th

Cir.1986) (citation omitted) (“The continuation of

even a lawful arrest violates the Fourth Amendment

when the police discover additional facts dissipating

their earlier probable cause.”).

However, once a prosecutor has filed charges, the arresting

officers will generally be found immune. See Smiddy v.

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

Between November 8, when the officers arrested Heather

and Mark for murder, and November 10, when the district

attorney filed a formal complaint, the officers received information suggesting that they had the wrong people. On

November 9, the bartender, Whipp, identified a man named

“Rob” from a Jus’ Brothers group photo as one of the bikers

involved and stated she did not recognize Mark, whose picture she had seen in the morning paper.21 On November 10,

she identified Robert Memory from a photo lineup, and on the

same day, anonymous callers identified the assailant as Frankie. Reyes was aware of Whipp’s statements and of the calls

21Whipp did identify Heather from a photo spread. 

EWING v. CITY OF STOCKTON 16235
identifying Frankie, and he also knew that on November 8, an

anonymous tipster called the Stockton crime-stoppers, stating

that “the guy who killed the kid at Shaker’s is a JUS

BROTHER and his name is Frankie.” 

[16] We agree with the district court that the officers are

entitled to qualified immunity in connection with their decision not to release Mark and Heather. Whether or not the officers knew Frankie’s last name, which is disputed, anonymous

tips, standing alone, are entitled to little weight. See, e.g.,

United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006);

United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994); see

also Florida v. J.L., 529 U.S. 266, 268-69 (2000) (holding

that an anonymous tip that a person is carrying a gun — without any corroborating evidence — did not provide reasonable

suspicion of criminal wrongdoing justifying the officer’s stop

and frisk of that person). No witness who was willing to identify himself identified Frank Prater, and the officers had multiple identifications of Heather and one weak ID of Mark. The

Ewings cite no similar case in which a constitutional violation

was found, nor do they establish that given the conflicting

evidence that the officers possessed, that only a plainly

incompetent officer or one intent on knowingly violating the

law would have concluded that probable cause had dissipated.

See Malley v. Briggs, 475 U.S. 335, 341 (1986). Further, we

note once again that the officers shared the new information

with Fleming, who nevertheless elected to proceed.

E. Absolute Immunity as to DA-Defendants

[17] A prosecutor is entitled to absolute immunity

from a civil action for damages when he or she performs a function that is “intimately associated with

the judicial phase of the criminal process.” Imbler v.

Pachtman, 424 U.S. 409, 430 (1976). A prosecutor’s

functions that are protected by absolute immunity

include initiating a prosecution and presenting the

State’s case, id. at 431, appearing at a probable cause

16236 EWING v. CITY OF STOCKTON
hearing to support an application for a search warrant, [Burns v. Reed, 500 U.S. 478, 492 1991)], and

preparing and filing an arrest warrant. Kalina v.

Fletcher, 522 U.S. 118, 129 (1997). However, the

functions of an advocate do not include advising

police officers whether probable cause exists during

their pretrial investigation, Burns, 500 U.S. at 493,

fabricating evidence before probable cause has been

established, Buckley v. Fitzsimmons, 509 U.S. 259,

275 (1993), or attesting to the facts that support an

arrest warrant. Kalina, 522 U.S. at 130-31.

KRL v. Moore, 384 F.3d 1105, 1110-11 (9th Cir. 2004). Qualified rather than absolute immunity is generally presumed to

be “sufficient to protect government officials in the exercise

of their duties,” and the Supreme Court has declined “to

extend [absolute immunity] any further than its justification

would warrant.” Burns, 500 U.S. at 486-87 (internal quotation

marks omitted).

[18] “To determine whether an action is ‘prosecutorial,’ ”

and thus warrants absolute immunity, we analyze the nature

of the function performed. Al-Kidd v. Ashcroft, 580 F.3d 949,

958 (9th Cir. 2009). Thus, prosecutors are entitled to absolute

immunity not only when they represent the state in court, but

also when they engage in activities “intimately associated

with the judicial phase of the criminal process.” Imbler, 424

U.S. at 430. However, while prosecutors will inevitably participate in activity preliminary to filing charges, they are entitled to absolute immunity “ ‘only for actions that are

connected with the prosecutor’s role in judicial proceedings,

not for every litigation-inducing conduct.’ ” Al-Kidd, 580

F.3d at 958 (quoting Burns, 500 U.S. at 494); see also

Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)

(“In other cases, the Court has held that a prosecutor does not

have absolute immunity for providing legal advice to police

that probable cause exists to arrest a suspect, Burns, 500 U.S.

EWING v. CITY OF STOCKTON 16237
at 491, or for personally attesting to the truth of evidence in

support of charging documents, Kalina, 522 U.S. at 130.”).

The Ewings concede that Fleming is entitled to absolute

immunity for his decisions to charge Heather and Mark with

murder and not to release them between November 10 and 15,

see Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (stating that a prosecutor’s failure to dismiss charges after learning

of new information is protected by absolute immunity), but

argue that he is not so entitled for advising the officers to add

book murder charges on November 8. We agree.

[19] The Supreme Court has clearly stated that with respect

to advising police, prosecutors are entitled to qualified not

absolute immunity. Burns, 500 U.S. at 492-95. Noting the

absence of a common law tradition supporting absolute

immunity, the Court stated: “Indeed, it is incongruous to

allow prosecutors to be absolutely immune from liability for

giving advice to the police, but to allow police officers only

qualified immunity for following the advice. Ironically, it

would mean that the police, who do not ordinarily hold law

degrees, would be required to know the clearly established

law, but prosecutors would not.” Id. at 495 (internal citation

omitted). 

[20] In the present case, the district court appears to have

mistakenly limited Burns to apply only to situations where

prosecutors advise police about prospective investigative

techniques. Although the Burns Court sometimes characterized the prosecutor’s role as “investigative,” it clearly held

that with respect to advising police that they had probable

cause to arrest, the prosecutor was not entitled to absolute immunity.22 See also Harris v. Bornhorst, 513 F.3d 503, 510 (6th

22The district court relied primarily on Spivey v. Robertson, 197 F.3d

772 (5th Cir. 1999), but that case, which never even mentioned Burns,

involved advice to the police in connection with a court filing. The district

court cited two other cases, one of which, Flavel v. Logsdon, 718 F. Supp.

836 (D. Or. 1989), predates Burns and relied on cases that Burns rejected.

The other, Orobono v. Koch, 30 F. Supp. 2d 843 (E.D. Pa. 1998), does not

cite Burns and contains little analysis. 

16238 EWING v. CITY OF STOCKTON
Cir. 2008) (“[I]n Prince v. Hicks, 198 F.3d 607 (6th Cir.

1999), we affirmed the denial of absolute immunity to a prosecutor who advised police that probable cause existed to

arrest a suspect.”), cert. denied, 128 S. Ct. 2938 (2008); Mink

v. Suthers, 482 F.3d 1244, 1260 (10th Cir. 2007) (“Advising

police on interrogation methods or ‘the existence of probable

cause’ does not qualify” for absolute immunity.) (quoting

Burns, 500 U.S. at 487), cert. denied, 128 S. Ct. 1122 (2008);

Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (“The

absolute immunity of a prosecutor does not extend to his giving legal advice to the police when they are investigating

whether a crime has occurred.”); Hill v. City of New York, 45

F.3d 653, 661 (2d Cir. 1995) (“Nor is advising the police during the investigative stage of a case that they have probable

cause to arrest an advocacy function.”). 

The DA-defendants argue that Fleming’s advice to Reyes

was a “charging decision.” But Reyes testified that Fleming

advised him about probable cause on November 8, and the

record indicates that Fleming did not make a charging decision until November 10. See, e.g., Van Deelen v. City of

Eudora, Kan., 53 F. Supp. 2d 1223, 1231 (D. Kan. 1999)

(“Thus, the question is not simply a matter of whether the

prosecutor communicated advice to the police but rather was

the advice closely associated to the attorney’s decision to

prosecute.”); see also Buckley v. Fitzsimmons, 509 U.S. 259,

273 (1993) (stating that absolute immunity applies to “the

professional evaluation of the evidence assembled by the

police and appropriate preparation for its presentation at trial

or before a grand jury after a decision to seek an indictment

has been made”) (emphasis added); Johnson v. City of Meridian, 23 F. Supp. 2d 681, 684 (S.D. Miss. 1998) (rejecting

absolute immunity where the prosecutor was not “merely

informing the officer of his decision to initiate criminal proceedings,” but rather “was effectively advising the officer that

probable cause for the arrest existed, a situation akin to that

in Burns”). 

EWING v. CITY OF STOCKTON 16239
The DA-defendants also note that the police had already

arrested Mark and Heather on drug and gun charges. However, as discussed, the addition of the murder charges caused

Mark and Heather to be detained without bail. See Holmes,

511 F.3d at 683 (“It is reasonable to demand that each charge

that a police officer elects to lodge against the accused be supported by probable cause. Otherwise, police officers would be

free to tack a variety of baseless charges on to one valid

charge with no risk of being held accountable for their

excess.”).

[21] In sum, qualified rather than absolute immunity is generally sufficient to protect government officials in the course

of their duties, and a litigant seeking the greater protection

“bears the burden of demonstrating that absolute immunity is

justified for the function in question.” Botello v. Gammick,

413 F.3d 971, 976 (9th Cir. 2005). In the present case, the

record does not support a finding of absolute immunity for

Fleming.

[22] Alternatively, the DA-defendants contend that Fleming is entitled to qualified immunity, arguing that a reasonable

prosecutor has every reason to expect that it is lawful to apply

charges to a criminal defendant in custody based on information provided by the police. But the DA-defendants do not

discuss the specifics of Fleming’s decision, and their argument largely rehashes their absolute immunity claim. We

therefore decline to address the issue and remand the case for

an initial determination by the district court of whether Fleming is entitled to qualified immunity. 

The district court granted summary judgment to DA Phillips based on its determination of absolute immunity as to

Fleming. For the reasons stated, Fleming is not entitled to

absolute immunity. However, we affirm the dismissal of Phillips from the case on other grounds.

[23] The Ewings allege no personal involvement by Phillips in the relevant events, and there is no respondeat superior

16240 EWING v. CITY OF STOCKTON
liability under § 1983. See Jones v. Williams, 297 F.3d 930,

934 (9th Cir. 2002) (“In order for a person acting under color

of state law to be liable under section 1983 there must be a

showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section

1983.”). The Ewings fare no better proceeding against Phillips

in his “official capacity.” Setting aside the issue of whether

official capacity claims against a district attorney are subject

to dismissal under the Eleventh Amendment, see Pitts v.

County of Kern, 949 P.2d 920, 930-31 (Cal. 1998) (holding

that California district attorneys act as agents of the state

when they prosecute cases and establish policy and train

employees in this area), and assuming arguendo that appellants could bring a Monell-type claim against Phillips as head

of the County DA’s office, appellants fail to present any evidence that a municipal policy caused their injury. See Monell

v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 690-

695 (1978) (authorizing municipal liability under § 1983

when a municipality’s “policy or custom” causes a violation

of an individual’s federal rights). 

[24] In the district court, the only “policy” the Ewings mentioned was the police practice of conferring with the district

attorney’s office before arresting someone for murder. We fail

to see how such policy, if it qualifies as one, caused appellants’ injuries. See City of Canton v. Harris, 489 U.S. 378,

385 (1989) (“[O]ur first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a

direct causal link between a municipal policy or custom and

the alleged constitutional deprivation.”). The problem here

was not that Reyes conferred with Fleming pursuant to the

policy (as discussed above, courts have long noted that such

consultation is a good idea), it was that Fleming may have

given bad advice. That bad advice cannot be attributed to the

policy or, absent some evidence that he ratified it, to Phillips.

See id. at 387 (“Nor, without more, would a city automatically

be liable under § 1983 if one of its employees happened to

apply the policy in an unconstitutional manner, for liability

EWING v. CITY OF STOCKTON 16241
would then rest on respondeat superior.”); Houghton v. Cardone, 295 F. Supp. 2d 268, 277 (W.D.N.Y. 2003) (“Where,

however, liability is premised on the policymaker’s approval

of a subordinate’s unlawful act, it must be shown that the

policymaker ratified both the ‘subordinate’s decision and the

basis for it,’ see City of St. Louis v. Praprotnik, 485 U.S. 112,

127 (1988), as municipalities cannot be liable on a theory of

respondeat superior.”). The Ewings also alleged in the complaint that Phillips adopted and ratified the actions of the DA

defendants, but nothing in the record supports this assertion.

Therefore, we must dismiss Phillips from the case.

IV. CONCLUSION

[25] For the foregoing reasons, we affirm in part, reverse

in part and remand for further proceedings. Each party shall

bear its own costs on appeal. 

16242 EWING v. CITY OF STOCKTON