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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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8 GERALD LEN COOLEY, Case No.: 4:18-cv-719-YGR Plaintiff, 9 ORDER DENYING MOTION FOR SUMMARY

JUDGMENT

10 vs. Re: Dkt. No. 194 11 CITY OF WALNUT CREEK DETECTIVE

12

WILLIAM JEHA,

13 Defendants.

14 15 Plaintiff Gerald Len Cooley brings this civil rights action against the sole remaining 16 defendant Walnut Creek Police Detective William Jeha pursuant to 42 U.S.C. section 1983 for false 17 arrest in violation of the Fourth Amendment and for deliberate fabrication of evidence in violation 18 of the Fourteenth Amendment. 19 Presently before the Court is defendant’s motion for summary judgment pursuant to Federal 20 Rule of Civil Procedure 56. (Dkt. No. 194.) The matter was heard on June 22, 2021. Having 21 carefully considered the papers submitted, the oral argument of the parties, the admissible evidence, 22 and the pleadings in this action, and for the reasons set forth below, the Court DENIES the motion 23 for summary judgment. 24 I. BACKGROUND 25 The parties agree on the basic facts of this case. Thus: 26 On April 27, 2016, at 1:28 a.m., Courtney Brown was shot outside Crogan’s Bar and Grill 27 in Walnut Creek. (Plaintiff’s Separate Statement of Undisputed Material Facts in Support of 28 Opposition (“PSUMF”), Dkt. No. 198-1, Undisputed Fact 1.) Jeha, a twenty-year veteran police 1 officer, was a detective for the Walnut Creek Police Department (“WCPD”) and served as lead 2 investigator for this homicide. (Id., Undisputed Fact 2.) On the way to the hospital before he died, 3 Brown identified Larry Griffin as his assailant. (Id., Undisputed Fact 4 (citing Jeha Decl. ¶ 3).) 4 Griffin was subsequently arrested, prosecuted, and later convicted for Brown’s murder. (Id., 5 Undisputed Fact 3.) 6 Cooley is Griffin’s cousin. (Id., Undisputed Fact 4.) On September 22, Jeha sought a 7 Ramey warrant for Cooley’s arrest for being an accessory to Brown’s murder after the fact. (Id., 8 Undisputed Portion of Fact 19 (citing Jeha Decl., Ex. D (“Warrant”)).) Jeha presented to Contra 9 Costa County Superior Court Judge Steve Austin an affidavit in support of the proposed warrant 10 and an accompanying statement of probable cause, which included the following:

11  Griffin’s girlfriend Keyona Hodges admitted picking up Griffin from a house in Antioch 12 around 3:00 a.m. on the night of the shooting. Hodges reported seeing Cooley come out of the house and get into a light colored Lexus SUV and drive away. 13  Cooley’s girlfriend Sabrina Bagsby stated that she possessed a light blue 2004 Lexus SUV 14 and that Cooley had the vehicle on the night of the shooting and returned it the next 15 morning. According to Bagsby, Cooley told her that he had to go to his cousin’s house around the corner and that he would be right back. Cooley never returned that night, so she 16 sent the following text messages: “Bring me my keys to my car it is 4 in the morning I’m done with u!” and “R I’m call the police.” Bagbsy later reported that Cooley admitted to 17 being at Crogan’s the night of the shooting. 18  The Learn License Plate Reader captured Bagsby’s vehicle at an intersection less than 50 19 yards from the shooting location two minutes after the shooting. The vehicle was then 20 captured seventeen minutes later on EB Hwy 4, in the Pittsburg/Antioch corridor.

21  Daryl Holcombe, the digital forensic expert for the Contra Costa County District Attorney’s Office, “conducted cell phone records analysis on all phone numbers called by Griffin’s 22 phone on the night of the shooting. Holcombe reported Griffin’s and Cooley’s phone GPS 23 locations mirrored each other. According to the data Holcombe analyzed, Griffin’s phone GPS locations and times were consistent with the call times and locations for Cooley’s 24 phone. Griffin and Cooley’s phones were in Walnut Creek at the same general times (0009 and 0016 respectively), then on EB Hwy 4, and then Antioch (0146 and 0147 hours 25 respectively).” 26 27 (Warrant, Statement of Probable Cause.) 28 1 Cooley proffers the following evidence regarding the submission: Holcombe did not 2 analyze GPS data from either Griffin or Cooley’s phones. (PSUMF, Pl. Add’l Fact 27, 36.) 3 Rather, Holcombe analyzed Griffin’s and Cooley’s call detail records produced by the cell phone 4 provider. (Id., Pl. Response Disputing Fact 5 (citing, inter alia, Tomasulo Declaration in Support 5 of Opposition, Ex. 1, Holcombe Depo. Tr. 45:17–20.)) This type of data enabled Holcombe to 6 identify the cell phone towers with which the cell phones communicated and to determine the 120- 7 degree coverage area, known as the sector, for the respective tower. (Id., Pl. Response Disputing 8 Fact 6.) Holcombe then created shaded areas of three-mile radius in a PowerPoint presentation to 9 represent Cooley’s approximate locations on the night of the shooting. (Id., Pl. Response Disputing 10 Fact 9 (citing Tomasulo Decl., Exh. 3, Holcombe’s PowerPoint Presentation of Analysis of 11 Cooley’s Call Detail Records).) Holcombe determined that Cooley’s phone could be located 12 anywhere within a three-mile radius created by the 120-degree coverage area of the tower with 13 which Cooley’s phone communicated. (Id., Pl. Add’l Fact 24.) 14 According to Cooley, Holcombe testified that call detail record data is less precise in 15 determining a phone’s location than GPS data. (Id., Pl. Add’l Fact 38.) For example, his 16 PowerPoint presentations of his cell site location analysis showed that, less than two hours prior to 17 the shooting, Griffin’s phone and Cooley’s phone were somewhere within a three-mile area 18 encompassing Walnut Creek. (Id., Pl. Response Disputing Fact 17.) Holcombe also concluded 19 that, shortly after the shooting, Griffin’s phone was located within an area that encompassed both 20 Pittsburg and Antioch. (Id.) Cooley also claims that Holcombe denied telling Jeha that Griffin and 21 Cooley’s phone GPS locations mirrored each other and that this investigation was not the first time 22 that Jeha relied on Holcombe’s cell site location analysis. (Id., Pl. Add’l Fact 32, 35.) 23 Nonetheless, Jeha submitted:

24 From my assessment of the information gathered in my investigation, there is 25 sufficient cause to believe Gerald Cooley aided Griffin in the shooting death of Brown, as well [as him] having knowledge of said act. I base this belief on the 26 fact that Cooley had possession or was at least in the Lexus SUV which was captured in Walnut Creek at the time of shooting. Inspector Holcombe’s digital 27 forensic data analysis of GPS coordinates of Cooley’s phone, revealed good 28 cause that Griffin and Cooley were most likely together during and after the shooting. Also, consistent statements from Hodges put Cooley and Griffin together after the murder and then Cooley getting to the Lexus SUV. Statements 1 from Bagsby regarding Cooley telling her he was going to his cousin’s house and 2 Cooley admitting to her he was in Walnut Creek during the shooting, work to reinforce my probable cause. With the above mention[ed] facts, I seek a Ramey 3 Arrest warrant for Gerald Cooley for PC 32. 4 (Warrant (emphasis supplied.)) 5 California Penal Code Section 32 provides: “Every person who, after a felony has been 6 committed, harbors, conceals or aids a principal in such felony, with the intent that said principal 7 may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said 8 principal has committed such felony or has been charged with such felony or convicted thereof, is 9 an accessory to such felony.” Cal. Penal Code § 32. 10 Judge Austin signed the warrant based on Jeha’s submission. On October 5, Cooley was 11 arrested and later charged for being an accessory to Brown’s murder and jailed in 23-hour 12 lockdown. (PSUMF, Undisputed Portion of Fact 19 and Pl. Add’l Fact 40.) Cooley was released 13 from jail four months after his arrest because the district attorney wanted to further investigate the 14 relevant cell phone records. (Id., Pl. Add’l Fact 41.) The charge against Cooley was ultimately 15 dropped. (Id., Pl. Response to Disputed Fact 22.) 16 II. LEGAL STANDARD 17 Summary judgment is appropriate when “there is no genuine dispute as to any material fact 18 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party 19 asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to 20 particular parts of materials in the record, including depositions, documents, electronically stored 21 information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other 22 materials,” or by “showing that materials cited do not establish the absence or presence of a 23 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 24 Id. 56(c)(1)(A), (B). “[W]here evidence is genuinely disputed on a particular issue—such as by 25 conflicting testimony—that issue is inappropriate for resolution on summary judgment.” Zetwick v. 26 County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation marks omitted). 27 A moving party defendant bears the burden of specifying the basis for the motion and the 28 elements of the causes of action upon which the plaintiff will be unable to establish a genuine issue 1 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 2 non-moving party to establish the existence of a material fact that may affect the outcome of the 3 case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 4 (1986). In the summary judgment context, the court construes all disputed facts in the light most 5 favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). 6 III. ANALYSIS 7 Jeha moves for summary judgment on the basis of purportedly uncontroverted evidence 8 demonstrating that (1) Cooley’s arrest did not involve judicial deception in violation of his Fourth 9 Amendment; (2) Jeha did not fabricate any evidence in the warrant application in violation of 10 Cooley’s Fourteenth Amendment; and (3) Jeha is entitled to qualified immunity for both claims. 11 The Court considers each ground for the motion in turn. 12 A. FALSE ARREST 13 With respect to his false arrest claim, Cooley does not argue that Jeha’s warrant application 14 lacked probable cause on its face. Rather, Cooley contends that the application contained false 15 misrepresentations about Cooley’s location, thereby asserting a judicial deception theory of 16 liability. “To maintain a false arrest claim for judicial deception, a plaintiff must show that the 17 officer who applied for the arrest warrant [1] ‘deliberately or recklessly made false statements or 18 omissions [2] that were material to the finding of probable cause.’” Smith v. Almada, 640 F.3d 931, 19 937 (9th Cir. 2011) (quoting KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004)); )); see also 20 Chism v. Washington State, 661 F.3d 390, 387 (9th Cir. 2011) (“For the [plaintiff’s] judicial 21 deception claim to survive summary judgment, the [plaintiff’s] ‘must 1) make a substantial 22 showing of [the officer’s] deliberate falsehood or reckless disregard for the truth and 2) establish 23 that but for the honesty, the [arrest] would not have occurred.’”) (quoting Liston v. County of 24 Riverside, 120 F.3d 965, 973 (9th Cir. 1997)). 25 1. DELIBERATE OR RECKLESS MISREPRESENTATION 26 The plaintiff “need not establish specific intent to deceive the court.” Bravo v. City of Santa 27 Maria, 665 F.3d 1076, 1083–84 (9th Cir. 2011) (citing Lombardi v. City of El Cajon, 117 F.3d 28 1117, 1124 (9th Cir. 1997)). Indeed, “[t]o survive summary judgment, [a plaintiff] need only make 1 a substantial showing of a deliberate or reckless omission, not provide ‘clear proof.’” Id. at 1087 2 (quoting Liston, 120 F.3d at 974) (internal quotation marks omitted). Once a substantial showing 3 of “deliberate or reckless false statements and omissions” has been made, “‘the question of intent or 4 recklessness is a factual determination’ that must be made by the trier of fact.” Chism, 661 F.3d at 5 387–88 (quoting Liston, 120 F.3d at 974). 6 Here, Jeha does not deny that Holcombe’s analyses of Griffin’s and Cooley’s cell phone 7 locations were based on data from cell phone towers, as opposed to GPS data, and therefore only 8 showed their “general positions.” (Dkt. No. 194 at 10.) Instead, Jeha argues that “incorrectly 9 describ[ing] the cell phone data generally as GPS data” is simply his “use[ of] poor language” and 10 that such allegations of negligence or innocent mistake are insufficient to prove judicial deception. 11 (Id. at 10, 21.) 12 However, whether Jeha, in fact, made a mistake is a question for the trier of fact as Cooley 13 has made a substantial showing of a deliberate or reckless false statement. See Chism, 661 F.3d at 14 387–88. First, Cooley points to the fact that Jeha’s statement of probable cause refer to GPS data 15 not only once but three times. Moreover, it is undisputed that Jeha is a seasoned investigator with 16 twenty years of experience as a police officer. Indeed, he has worked with Holcombe in past 17 investigations involving cell phone records. Lastly, Holcombe’s PowerPoint presentations 18 themselves show large shaded areas rather than precise pinpoints of Griffin’s and Cooley’s 19 locations. Construed in the light most favorable to Cooley, these facts present sufficient evidence 20 to support the inference that Jeha intentionally or recklessly mischaracterized Holcombe’s cell 21 phone location analysis in his statement of probable cause. Accordingly, the Court concludes that a 22 genuine dispute exists as to the first element. 23 2. MATERIALITY 24 Whether a false or omitted statement was “material” to the finding of probable cause is a 25 question of law. See KRL, 384 F.3d at 1117. The materiality element “requires the plaintiff to 26 demonstrate that the magistrate would not have issued the warrant with false information redacted, 27 or omitted information restored.” Smith, 640 F.3d at 937; see also Bravo, 665 F.3d at 1083–84 28 (“To determine the materiality of omitted facts, [a court] consider[s] whether the affidavit, once 1 corrected and supplemented, establishes probable cause.”) (citation and internal quotation marks 2 omitted). “If probable cause remains after amendment, then no constitutional error has occurred.” 3 Bravo, 665 F.3d at 1084 (citing Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009), and 4 Liston, 120 F.3d at 973–74). 5 The Supreme Court has declined to articulate a “neat set of legal rules” for evaluating 6 probable cause, and instead directs judges to consider the “totality-of-the-circumstances” when 7 deciding whether to issue a warrant. Illinois v. Gates, 462 U.S. 213, 230, 232 (1983). Under Ninth 8 Circuit authority, a finding of probable cause “must be based on ‘reasonably trustworthy 9 information sufficient to warrant a prudent person in believing that the accused had committed or 10 was committing an offense.’” Reynaga Hernandez v. Skinner, 969 F.3d 930, 938 (9th Cir. 2020) 11 (quoting Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995)) (internal quotation marks 12 omitted). 13 Here, the Court finds that Jeha’s reference to Holcombe’s “analysis of GPS coordinates of 14 Cooley’s phone,” Holcombe’s purported report that “Griffin’s and Cooley’s GPS locations 15 mirrored each other,” and Jeha’s conclusion that “Griffin and Cooley were most likely together 16 during and after the shooting” were material to the probable cause determination. Had Holcombe’s 17 analysis been properly characterized as indicating only that Griffin and Cooley’s phones were in 18 the same general vicinity at certain times throughout the night of the shooting, the statements by 19 Hodges and Bagsby and the license plate reader data, without the precision offered by Holcombe’s 20 purported analysis of GPS data, would not have supported probable cause to issue the arrest 21 warrant for Cooley being accessory after the fact. 22 Because Cooley has raised a genuine dispute of fact as to judicial deception, the Court 23 DENIES the motion for summary judgment as to his Fourth Amendment claim for false arrest. 24 B. DELIBERATE FABRICATION OF EVIDENCE 25 “To prevail on a [section] 1983 claim of deliberate fabrication, a plaintiff must prove that 26 (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused 27 the plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). A 28 plaintiff can establish a claim of deliberate fabrication by circumstantial or direct evidence. “For 1 example, evidence that officials ‘continued their investigation of [a person] despite the fact that 2 they knew or should have known that he was innocent’ can raise the inference that the investigator 3 has an ‘unlawful motivation’ to frame an innocent person.” Id. at 793 (citation omitted). “Or 4 deliberate fabrication can be shown by direct evidence, for example, when ‘an interviewer . . . 5 deliberately mischaracterizes witness statements in her investigative report.’” Id. (citation omitted). 6 In cases involving direct evidence, the investigator’s knowledge or reason to know of the plaintiff’s 7 innocence need not be proved. Id. 8 As discussed above, a plausible inference can be made of an intentional or reckless 9 mischaracterization of Holcombe’s cell phone location analysis. See Costanich v. Dep’t of Soc. and 10 Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010) (explaining that both “an interviewer who 11 deliberately mischaracterizes witness statements” and “an investigator who purposefully reports 12 that she has interviewed witnesses, when she has actually only attempted to make contact with 13 them, deliberately fabricates evidence.”). The statements by Jeha in the application for Cooley’s 14 arrest warrant are akin to attributing false statements to an interviewee or falsely reporting that 15 interviews took place when they had not, situations that the Ninth Circuit has previously recognized 16 as rising to the level of a deliberate misrepresentation. See id. 17 Moreover, having found that Jeha’s statements regarding Holcombe’s analysis of GPS data 18 were material to the probable cause determination for the arrest warrant, the Court likewise finds 19 that there is sufficient evidence from which to conclude that the misrepresentations caused 20 Cooley’s deprivation of liberty. See Caldwell v. City and County of San Francisco, 889 F.3d 1105, 21 1115 (9th Cir. 2018) (“To establish causation, [the plaintiff] must raise a triable issue that the 22 fabricated evidence was the cause in fact and proximate cause of his injury.”). 23 Accordingly, the Court DENIES the motion for summary judgment as to his Fourteenth 24 Amendment claim for deliberate fabrication of evidence. 25 C. QUALIFIED IMMUNITY 26 Cooley also moves for summary judgment on the basis of qualified immunity. “In 27 resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged 28 inquiry. The first asks whether the facts, ‘[t]aken in the light most favorable to the party asserting 1 |} the injury, . . . show the officer’s conduct violated a [federal] right[.]’” Tolan v. Cotton, 572 U.S. 2 || 650, 655-56 (2014) (citation omitted). “The second prong of the qualified-immunity analysis asks 3 || whether the right in question was ‘clearly established’ at the time of the violation.” /d. at 656 4 || (citation omitted). 5 With respect to the first prong, although there are genuine issues of fact as to the merits of 6 || Cooley’s claims, the Court’s discussion in the previous sections demonstrates that he has made an 7 || adequate showing that Jeha violated his constitutional rights. 8 With respect to the second prong, the Ninth Circuit has “already held that governmental 9 || employees are not entitled to qualified immunity on judicial deception claims.” Chism, 661 F.3d at 10 }|393. Ifa state official “submitted an affidavit that contained statements he knew to be false or 11 || would have known were false had he not recklessly disregarded the truth, . . . he cannot be said to 12 || have acted in a reasonable manner, and the shield of qualified immunity is lost.” /d. (quoting E 13 || Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991), overruled on other grounds by Galbraith a 14 || v. County of Santa Clara, 307 F.3d 1119, 1387 (9th Cir. 2002)). The same is true for the deliberate 8 15 || fabrication claim. See Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) Z 16 || (“[T]here is a clearly established constitutional due process right not to be subjected to criminal 17 || charges on the basis of false evidence that was deliberately fabricated by the government.”). 18 Accordingly, the Court DENIES the motion for summary judgment on the basis of qualified 19 immunity. 20 || ITV. CONCLUSION 21 For the foregoing reasons, Jeha’s motion for summary judgment is DENIED. 22 This Order terminates Docket Number 194. 23 IT Is SO ORDERED. 24 □ At 4 : Date: July 1, 2021

YVONNE GONZALEZ ROGERS

26 UNITED STATES DISTRICT COURT JUDGE 27 28