James Tomer v. Daryl Gates, Jerry Bova, Luis Lopez, Raymond Lombardo, Michael Ranshaw, and the City of Los Angeles

James Tomer, a Los Angeles Police Department (LAPD) officer, filed this civil rights action under 42 U.S.C. § 1983 against the City of Los Angeles, its Chief of Police, and several of his fellow officers alleging malicious prosecution and violation of fourth amendment rights, and asserting pendent state tort claims. All defendants raised qualified immunity as an affirmative defense which Tomer immediately moved to strike from their answers under Rule 12(f). The district court granted the motion to strike and all defendants filed this joint appeal.

The procedural setting of this appeal is unusual. Notwithstanding the filing of this timely appeal of the order striking the qualified immunity defense, the trial court proceeded with the litigation. Subsequent to appellate briefing and prior to oral argument in this court, we were notified that Tomer dismissed his state tort claims in the pretrial order and the district court thereafter granted summary judgment in favor of all defendants except Officer Raymond Lombardo of the LAPD Internal Affairs Division.

Thus, the narrow question now before us is whether Officer Lombardo may assert a qualified immunity defense to Officer Tomer’s…