Highbaugh v. City of Vallejo

Background

Everette Highbaugh was arrested and prosecuted for murdering Kenesha Jackson and attempting to murder Brad David. A judge excluded Highbaugh’s confession from the state’s case-in-chief because detectives obtained it after refusing his request for an attorney and continuing the interrogation. A jury later acquitted Highbaugh of both charges.

Vallejo police extracted data from David’s cellphone, including threatening or eccentric text messages from Hope McKinney that could support a motive for McKinney to commit the crimes. The extraction report containing the cellphone data was provided to Highbaugh’s criminal defense counsel more than five months before the preliminary hearing. Detective Josh Caitham later wrote a report stating that he had not located evidence pertaining to the investigation while noting text conversations between David and Jackson. The report did not mention the McKinney messages.

Highbaugh sued the detectives and the City of Vallejo under 42 U.S.C. Section 1983. He alleged malicious prosecution, fabrication of evidence, and failure to disclose exculpatory evidence. He also asserted a claim against the City of Vallejo based on the alleged conduct of the individual officers. Highbaugh’s counsel stipulated to dismiss detectives Terry Schillinger and Kevin Barreto and the City of Vallejo with prejudice. The court then granted summary judgment to Kevin Rose and Josh Caitham on all claims, and final judgment followed.

Legal standard

The defendants sought attorney’s fees under 42 U.S.C. Section 1988. Under the standard applied by the court, a prevailing defendant in a civil-rights case may recover fees only if the plaintiff’s action was frivolous, unreasonable, or without foundation, or if the plaintiff continued litigating after the action clearly became so. The court described this as a stringent standard designed to avoid discouraging enforcement of civil-rights laws.

The court relied on Ninth Circuit precedent holding that a claim is not frivolous if it raises a question that Ninth Circuit precedent has not clearly answered. It also applied the Supreme Court’s rule that a defendant may recover only fees incurred because of a frivolous claim. The defendants had not allocated their requested fees by claim.

Analysis

Highbaugh’s fabrication-of-evidence claim was based entirely on Caitham’s cellphone report. The earlier summary-judgment order held that Caitham’s statements did not constitute fabrication of evidence, relying on Ninth Circuit precedent stating that withholding exculpatory evidence alone cannot support a deliberate-fabrication claim.

The court nevertheless found that the claim was not frivolous for three reasons. First, the relevant Ninth Circuit decision was issued after Highbaugh filed his complaint. Even assuming that decision clearly answered the legal question and made continued litigation frivolous, the defendants had not separated the fees incurred after that decision, so they could not satisfy the requirement that the fees be incurred because of the frivolous claim.

Second, before that decision, Ninth Circuit precedent had not clearly answered the question presented by Highbaugh’s claim. The court acknowledged that Highbaugh’s argument was meritless and required reading an earlier decision out of context. But that earlier decision included language stating that an investigator who deliberately mischaracterizes witness statements in an investigative report commits a constitutional violation. The court held that this language provided at least weak support for Highbaugh’s argument and cautioned against deciding frivolousness through hindsight merely because a plaintiff ultimately lost at summary judgment.

Third, the defendants did not identify Ninth Circuit precedent that clearly answered the specific question raised by Highbaugh’s fabrication-of-evidence claim. Because the defendants were not entitled to attorney’s fees, the court also found that they were not entitled to nontaxable expenses.

Disposition

The court vacated the hearing and denied the defendants’ motion for attorney’s fees and nontaxable expenses.