Zyhere Fichman v. Joseph Mercer ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZYHERE L. FICHMAN, No. 21-16452
Plaintiff-Appellant, D.C. No.
3:19-cv-00292-MMD-CLB
v.
JOSEPH MERCER, individually and in his MEMORANDUM*
official capacity as a Sparks Police
Department Officer; CITY OF SPARKS, a
municipal corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted June 14, 2022
San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Plaintiff-Appellant Zyhere Fichman timely appeals the district court’s grant
of Defendant-Appellee Joseph Mercer’s motion for summary judgment. We have
jurisdiction over Fichman’s appeal under 28 U.S.C. § 1291. After reviewing the
district court’s decision de novo, we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
On the evening of June 2, 2017, police in Sparks, Nevada received a report
of a residential armed robbery. Mercer was one of the officers who eventually
responded. Based on his interview of the alleged victim, the information he
received from officers who had arrived at the scene before him, and additional
information learned from the immediately ensuing investigation, Mercer arrested
Fichman later that night. The district attorney eventually dropped the charges
against Fichman after the alleged victim stopped cooperating with law
enforcement. Fichman then sued Mercer and the City for allegedly arresting him
without probable cause in violation of Fichman’s Fourth Amendment rights. The
district court dismissed Fichman’s claim against the City, and he does not
challenge that ruling on appeal. The district court subsequently granted Mercer’s
motion for summary judgment, leading to the appeal now before us.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party. Bravo v. City of
Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011); see Frudden v. Pilling, 877
F.3d 821, 828 (9th Cir. 2017). “Probable cause to arrest exists when officers have
knowledge or reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe an offense has been . . . committed by the person
being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
“[P]robable cause means ‘fair probability,’ not certainty or even a preponderance
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of the evidence.” United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)
(quoting Illinois v. Gates, 462 U.S. 213, 246 (1983)). We make this assessment
based on “the information the officer had at the time of making the arrest.” John v.
City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008).
Here, there was probable cause for Mercer to arrest Fichman. It is
undisputed that the alleged victim knew Fichman and that on the night in question
she said he had been involved in the robbery. It is also uncontroverted that the
alleged victim’s description of the robbers’ getaway car fit the description of
Fichman’s car and that Mercer found Fichman in his car later that evening. Even
viewing these facts and other evidence in the record in the light most favorable to
Fichman, the district court did not err by granting summary judgment to Mercer.
See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010) (“Here, probable
cause was established by the substantial correspondence between the officers’
observations at the time of the arrest and the details that [the victim] had provided
to the police concerning the crime, the individuals involved, their vehicle, and the
location where the perpetrators operated.”).
Fichman’s theory—that Mercer planted Fichman’s name in the alleged
victim’s mind and ignored exculpatory evidence based on a vendetta Mercer
purportedly had against Fichman—finds no support in the evidence. Mercer and
Fichman had only briefly interacted before the night in question, such that Fichman
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did not even remember doing so, and there is no apparent motive for Mercer to
frame Fichman. Fichman also admits that he has no proof that Mercer fabricated or
tampered with evidence, or that Mercer withheld exculpatory evidence. Other
disputed facts Fichman identified are immaterial. Some relate to events after the
night of the robbery and thus have little relevance to Mercer’s decision to arrest
Fichman. And although Fichman contends that Mercer’s investigation overlooked
points that might have undermined the alleged victim’s identification of him,
probable cause does not require certainty, but only a fair probability. Even granting
that questions and uncertainties remained, we conclude that the key undisputed
facts known to Mercer on the night of the robbery were sufficient, as a matter of
law, to lead a reasonably cautious person to conclude that Fichman was involved in
that robbery. Because the undisputed facts show that Mercer had probable cause to
arrest Fichman, Mercer’s motion for summary judgment was properly granted.
Finally, the parties disagree about certain evidentiary rulings made by the
district court in conjunction with the motion for summary judgment. Because our
holding would not change even if we resolved all these disputes in Fichman’s
favor, we decline to address the merits of these evidentiary issues.
The district court is AFFIRMED.
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