Galen v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY M. GALEN, 
Plaintiff-Appellant,
v.
No. 04-55274
COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFF’S  D.C. No.
DEPARTMENT; ANNA BARRIER; CV-02-08115-DSF
MARIAN HOLLAND; GLENN
HEINRICH,
Defendants-Appellees.

JEFFREY M. GALEN,  No. 04-56148
Plaintiff-Appellant, D.C. No.
v. CV-02-08115-
DSF(Ex)
COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFF’S  ORDER
DEPARTMENT; ANNA BARRIER; AMENDING
MARIAN HOLLAND; GLENN OPINION AND
HEINRICH, AMENDED
Defendants-Appellees.
 OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
November 15, 2005—Pasadena, California
Filed November 7, 2006
Amended January 19, 2007
911
912 GALEN v. COUNTY OF LOS ANGELES
Before: Kim McLane Wardlaw and Richard A. Paez,
Circuit Judges, and James K. Singleton,* District Judge.
Opinion by Judge Wardlaw
*The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
GALEN v. COUNTY OF LOS ANGELES 915
COUNSEL
Alan S. Gutman and Elizabeth L. Bradley, Law Offices of
Alan S. Gutman, Beverly Hills, California, for the appellant.
John J. Collins, Tomas A. Guterres, Douglas Fee, and Cather-
ine C. Mason, Collins, Collins, Muir & Stewart, LLP, South
Pasadena, California, for the appellees.
ORDER
The opinion filed November 7, 2006 is amended as fol-
lows:
916 GALEN v. COUNTY OF LOS ANGELES
1) Insert the following text at the end of footnote four: “We
specifically leave open for another day the question of
whether a litigant who actually challenged their bail at the
time, or who asserted a procedural due process claim, may be
entitled to a burden-shifting presumption, since in the absence
of a public record, the Commissioner is uniquely aware of the
ratio decidendi.”
No further petitions for rehearing or petitions for rehearing
en banc may be filed.
OPINION
WARDLAW, Circuit Judge:
In this action pursuant to 42 U.S.C. § 1983, Jeffrey Galen
claims that the $1,000,000 bail set upon his arrest for domes-
tic violence was excessive in violation of the Eighth Amend-
ment. He asserts that the district court erred by granting
summary judgment in favor of the County of Los Angeles and
its officers on the basis of qualified immunity. Because we
agree with the district court that Galen failed to adduce evi-
dence that peace officers caused unconstitutionally excessive
bail to be set, we affirm the summary judgment. However, we
hold that the district court abused its discretion in part in
awarding attorneys’ fees to the County and its officers.
I. Factual and Procedural Background
On the morning of October 26, 2001, Los Angeles County
Sheriff’s Department Deputies Bausmith and Heinrich
arrested Galen at his Encino, California law office on suspi-
cion of violating Penal Code section 273.5, California’s
domestic violence statute. Sergeant Barrier approved the
arrest. The alleged victim, Galen’s then-fiancée, previously
had sought protection against Galen from sheriff’s deputies
GALEN v. COUNTY OF LOS ANGELES 917
and had shown them photographs of injuries she claimed
Galen had inflicted on her, including large bruises on her
arms and legs and a seven-inch laceration on her upper arm.
After sheriff’s deputies booked Galen at the Lost Hills
Sheriff Station, Sergeant Barrier and Deputy Bausmith dis-
cussed requesting an increase in Galen’s bail from $50,000,
the default amount for a section 273.5 violation. Sergeant
Barrier believed Galen could easily post $50,000 bail because
he was an attorney and lived in a “fairly nice house.” She
knew there previously had been problems between Galen and
his fiancée and was concerned Galen “could quite possibly
have gone and caused some further physical harm to [his fian-
cée], or worse,” if he were released on bail. Sergeant Barrier’s
concerns were enhanced by the statement in the Probable
Cause Declaration (“PCD”) for Galen’s arrest, which other
deputies involved in the investigation had partially prepared
and which Deputy Heinrich later completed, that “the victim
was in fear for her safety.” Sergeant Barrier, who had never
before sought a bail enhancement for a section 273.5 arrestee,
wanted bail set high enough to prevent Galen from posting
bail.
Deputy Bausmith instructed Deputy Heinrich to fill out a
Bail Deviation Form and contact the County Probation
Department’s Bail Deviation Unit to request an increase in
Galen’s bail over the default amount. On the Bail Deviation
Form, Deputy Heinrich requested that Galen’s bail be
enhanced to $1,000,000. This enhancement request was based
solely on what Deputy Bausmith had told Deputy Heinrich
and was intended to ensure the safety of Galen’s fiancée.
Deputy Heinrich indicated on the form that Galen’s offense
was likely to continue, that the “[i]njury to [the] victim
required medical treatment,” and that Galen had waived his
bail deviation phone call. Deputy Heinrich had never met
Galen’s fiancée or seen evidence of her injuries; the informa-
tion he entered on the form came from Deputy Bausmith, the
918 GALEN v. COUNTY OF LOS ANGELES
PCD, and his own inferences based on the urgency of Galen’s
arrest.
To request the enhancement, Deputy Heinrich spoke to
De’anna English, an aide at the Bail Deviation Unit. Deputy
Heinrich related the facts of the case as he understood them
from Deputy Bausmith and the PCD. He told the aide that
Galen’s fiancée feared for her safety and had been vague with
sheriff’s deputies, that he believed the crime would likely
continue if Galen were released, and that Galen was an attor-
ney and could easily post $50,000 bail. Deputy Heinrich also
faxed the PCD to the Bail Deviation Unit, but he never pro-
vided the Unit with the Bail Deviation Form, nor was a sepa-
rate PCD ever prepared for the bail enhancement request. The
bail aide completed a form in response to Deputy Heinrich’s
request that included substantially all the information Deputy
Heinrich provided her. The record is bereft of any evidence
concerning what information the bail aide provided to the Bail
Commissioner or what factors went into the Commissioner’s
decision to enhance Galen’s bail.
At noon, Bail Commissioner (now Superior Court Judge)
Kelvin Filer set Galen’s bail at $1,000,000. Galen already had
spoken with his attorney and begun the process of securing
bail when he learned that his bail had been enhanced. It was
a Friday, and Galen feared he would spend the weekend in jail
if he did not post bail immediately. Galen called his lawyer
and a bail bond company and obtained a bail bond of
$1,000,000 in return for paying a $50,000 premium.
Later, after he had secured bail, Galen was shown the Bail
Deviation Form and notified of his right to challenge the
enhancement. He signed the form, acknowledging that he had
read it and understood he had a right to apply for a bail reduc-
tion. Galen was released at 5 p.m. He never requested a bail
reduction or otherwise challenged the amount of his bail
while in custody. Detective Holland investigated the sus-
GALEN v. COUNTY OF LOS ANGELES 919
pected abuse, but Galen’s fiancée, after speaking with Galen,
signed a “Request Not To Prosecute.” No charges were filed.
In October 2002, Galen filed a complaint in the United
States District Court for the Central District of California
against the County of Los Angeles, Sergeant Barrier, and
Detective Holland, seeking damages under 42 U.S.C. § 1983
for Fourth, Fifth, Eighth, and Fourteenth Amendment viola-
tions allegedly resulting from the bail enhancement. Galen
also sought damages under Monell v. Department of Social
Services, 436 U.S. 658 (1978), alleging that the County know-
ingly maintained a policy or practice of disregarding Califor-
nia bail law in violation of the Eighth Amendment. Galen
added Deputy Heinrich as a defendant shortly after filing his
complaint and did not actively pursue his suit against Detec-
tive Holland.1
All claims except the Eighth Amendment excessive bail
claim were dismissed on the County’s motion. The County
then moved for summary judgment, asserting that no constitu-
tional violation had occurred; Sergeant Barrier and Deputy
Heinrich did not cause Galen’s bail to be enhanced and were
entitled to qualified immunity; and the County was not liable
under Monell. The district court held that Galen’s bail was not
excessive, and that even if it was excessive, neither Sergeant
Barrier nor Deputy Heinrich caused the Eighth Amendment
violation and both were entitled to qualified immunity. Galen
v. County of Los Angeles, 322 F. Supp. 2d 1045, 1051-57
(C.D. Cal. 2004). The court also entered judgment in favor of
the County on Galen’s Monell claim, finding that the County
had no policy, custom, or practice designed to ensure or
resulting in the setting of excessive bail. Id. at 1057-59.
The County subsequently moved for $79,890 in attorneys’
fees pursuant to 42 U.S.C. § 1988, alleging that Galen’s suit
1
We refer to the County of Los Angeles and its defendant officers col-
lectively as “the County.”
920 GALEN v. COUNTY OF LOS ANGELES
had been frivolous. The district court found that it had
become clear once discovery was completed that Galen’s suit
was meritless, and that he should have ceased litigating at that
point. Id. at 1060-64. The court awarded the County attor-
neys’ fees of $23,400 for the post-discovery period. Id. at
1064. Galen timely appeals both the grant of summary judg-
ment on his Eighth Amendment claim against the individual
defendants and the award of attorneys’ fees. He does not
appeal the grant of summary judgment on the Monell claim.
II. Standard of Review
We review a district court’s decision to grant or deny sum-
mary judgment based on qualified immunity de novo. Prison
Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005).
We review a district court’s decision to grant attorneys’ fees
pursuant to 42 U.S.C. § 1988 for an abuse of discretion.
Empress LLC v. City and County of San Francisco, 419 F.3d
1052, 1057 n.4 (9th Cir. 2005). Legal analysis involved in the
decision to grant attorneys’ fees is reviewed de novo, while
relevant factual findings are reviewed for clear error. Thomas
v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005).
To withstand summary judgment, Galen must make a
showing sufficient to establish a genuine dispute of material
fact regarding the existence of the essential elements of his
case that he must prove at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 321-23 (1986). Galen must present affirmative evi-
dence to make this showing. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986). Bald assertions that genuine issues
of material fact exist are insufficient. MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993). A factual
dispute is genuine only if a reasonable trier of fact could find
in favor of the nonmoving party. Liberty Lobby, 477 U.S. at
248. A “mere scintilla of evidence” supporting Galen’s posi-
tion is insufficient to withstand summary judgment. Rivera v.
Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005).
GALEN v. COUNTY OF LOS ANGELES 921
III. Discussion
We affirm the district court’s grant of summary judgment
to the County. Galen cannot establish that his bail was exces-
sive because there is no evidence of the factors the Commis-
sioner considered in enhancing bail, or of his motive for
enhancing bail. Nor is there evidence that Sergeant Barrier or
Deputy Heinrich proximately caused the alleged constitu-
tional violation. Moreover, Sergeant Barrier and Deputy
Heinrich are entitled to qualified immunity because a reason-
able peace officer in their positions would not have under-
stood that his conduct violated the Eighth Amendment. We
reverse and remand the award of attorneys’ fees because the
district court abused its discretion in part in holding that it
became obvious upon the completion of discovery that
Galen’s suit had no merit as to all of the Defendants.
A. Qualified Immunity
Sergeant Barrier and Deputy Heinrich’s assertion of quali-
fied immunity requires us to answer two questions: First, do
the facts alleged show that Sergeant Barrier and Deputy Hein-
rich’s conduct violated a constitutional right? Second, was the
right Sergeant Barrier and Deputy Heinrich are alleged to
have violated clearly established such that a reasonable officer
would have understood that he was violating that right? See
Saucier v. Katz, 533 U.S. 194, 200-02 (2001); see also Ander-
son v. Creighton, 483 U.S. 635, 640 (1987). We must review
the two steps of the qualified immunity inquiry in order. See
Motley v. Parks, 432 F.3d 1072, 1077-78 (9th Cir. 2005) (en
banc); see also Saucier, 533 U.S. at 201.
“[A] public official is liable under § 1983 only if he causes
the plaintiff to be subjected to a deprivation of his constitu-
tional rights.” Baker v. McCollan, 443 U.S. 137, 142 (1979)
(internal quotation marks omitted) (emphasis in original).
Therefore, to survive the first Saucier step, Galen must estab-
lish both that his bail was excessive in violation of the Eighth
922 GALEN v. COUNTY OF LOS ANGELES
Amendment and that Sergeant Barrier and Deputy Heinrich
actually and proximately caused his bail to be excessive. See
Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
1. Excessive Bail
We agree with the district court that Galen has not estab-
lished a triable issue of fact regarding whether his bail was
unconstitutionally excessive because he failed to adduce evi-
dence of the reason for or motive behind the Commissioner’s
enhancement of bail.
The opening clause of the Eighth Amendment, “Excessive
bail shall not be required,” is one of the least litigated provi-
sions in the Bill of Rights. See Richard S. Frase, Excessive
Prison Sentences, Punishment Goals, and the Eighth Amend-
ment: “Proportionality” Relative to What?, 89 Minn. L. Rev.
571, 603 (2005). The Supreme Court has directly addressed
the Clause only three times since its adoption. See United
States v. Salerno, 481 U.S. 739 (1987); Carlson v. Landon,
342 U.S. 524 (1952); Stack v. Boyle, 342 U.S. 1 (1951).2 We,
too, have had few occasions to consider the Clause. See, e.g.,
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985).
Neither the Supreme Court nor we have held that the Clause
is incorporated against the States. See United States v. Scott,
450 F.3d 863, 866 n.5 (9th Cir. June 9, 2006), as amended.
We follow the Supreme Court in “assum[ing]” without decid-
ing that the Clause is incorporated against the States. Baker,
443 U.S. at 144 n.3.
In determining whether Galen’s Excessive Bail Clause
rights were violated, we look to Salerno. Salerno addressed a
constitutional challenge to the Bail Reform Act of 1984
(“BRA”), Pub. L. No. 98-473, 98 Stat. 1837, 1976-87 (codi-
2
Individual Justices have interpreted the Clause in reviewing applica-
tions for bail pending appeal. E.g., Sellers v. United States, 89 S. Ct. 36
(1968) (Black, J.).
GALEN v. COUNTY OF LOS ANGELES 923
fied at 18 U.S.C. § 3141 et seq.). The BRA authorized pretrial
detention for noncapital defendants and added protecting the
safety of others to the government interests relevant to bail
determinations, which federal law historically had limited to
preventing flight risk. See 18 U.S.C. §§ 3142(c)(1), (e).
In Salerno, the district court had denied bail to alleged
mafia leaders to protect the public safety. 481 U.S. at 743-44.
The defendants brought a facial challenge to the BRA, assert-
ing that the Excessive Bail Clause prohibited the state from
detaining them for a noncapital crime without a showing of
flight risk. Id. at 752. In upholding the BRA, the Court
explained that the Clause does not provide a right to bail. See
id. at 753. It went on to
reject the proposition that the Eighth Amendment
categorically prohibits the government from pursu-
ing . . . admittedly compelling interests [other than
preventing flight] through regulation of pretrial
release. . . .
....
. . . The only arguable substantive limitation of the
Bail Clause is that the Government’s proposed con-
ditions of release or detention not be “excessive” in
light of the perceived evil. Of course, to determine
whether the Government’s response is excessive, we
must compare that response against the interest the
Government seeks to protect by means of that
response. Thus, when the Government has admitted
that its only interest is in preventing flight, bail must
be set by a court at a sum designed to ensure that
goal and no more. Stack v. Boyle, supra. We believe
that when Congress has mandated detention on the
basis of a compelling interest other than prevention
of flight, as it has here, the Eighth Amendment does
not require release on bail.
924 GALEN v. COUNTY OF LOS ANGELES
Id. at 753-55.
[1] Salerno makes clear that the Excessive Bail Clause
does not bar the state from detaining even noncapital arrestees
without bail, or from considering interests other than flight
prevention in setting bail. But Salerno confirms that the
Excessive Bail Clause prevents the imposition of bail condi-
tions that are excessive in light of the valid interests the state
seeks to protect by offering bail. Id. at 754. Salerno is thus
consistent with Stack, a pre-BRA case that found defendants’
bail to be constitutionally excessive because it had been “set
at a figure higher than an amount reasonably calculated to ful-
fill . . . . the purpose of assuring the presence of [the] defen-
dant.” Stack, 342 U.S. at 5. Because the federal bail statute
then in effect prohibited the state from considering interests
other than flight prevention in setting bail, the Excessive Bail
Clause required bail to be set in an amount designed to pre-
vent flight, and no more. See id.; Salerno, 481 U.S. at 754.
[2] To determine whether the Excessive Bail Clause has
been violated, we look to the valid state interests bail is
intended to serve for a particular individual and judge whether
bail conditions are excessive for the purpose of achieving
those interests. The state may not set bail to achieve invalid
interests, see Stack, 342 U.S. at 5; Wagenmann v. Adams, 829
F.2d 196, 213 (1st Cir. 1987) (affirming a finding of exces-
sive bail where the facts established the state had no legiti-
mate interest in setting bail at a level designed to prevent an
arrestee from posting bail), nor in an amount that is excessive
in relation to the valid interests it seeks to achieve, see
Salerno, 481 U.S. at 754.
In California, bail determinations are regulated by a com-
prehensive statutory scheme. Penal Code section 1275 defines
the interests that judicial officers are to consider in setting
bail:
(a) In setting, reducing, or denying bail, the judge
or magistrate shall take into consideration the protec-
GALEN v. COUNTY OF LOS ANGELES 925
tion of the public, the seriousness of the offense
charged, the previous criminal record of the defen-
dant, and the probability of his or her appearing at
trial or hearing of the case. The public safety shall be
the primary consideration.
In considering the seriousness of the offense
charged, the judge or magistrate shall include con-
sideration of the alleged injury to the victim, and
alleged threats to the victim or a witness to the crime
charged, the alleged use of a firearm or other deadly
weapon in the commission of the crime charged, and
the alleged use or possession of controlled sub-
stances by the defendant.
Moreover, California law specifically authorizes judicial offi-
cers “to set bail in an amount that [they] deem[ ] sufficient . . .
to assure the protection of a victim . . . of domestic violence.”
Cal. Penal Code § 1269c. California law requires that non-
capital defendants be offered bail. See Cal. Penal Code
§§ 1270.5, 1271. For noncapital defendants, “the court may
neither deny bail nor set it in a sum that is the functional
equivalent of no bail.” In re Christie, 92 Cal. App. 4th 1105,
1109 (Ct. App. 2001), as modified.
California also regulates the procedure by which bail is set,
requiring an open hearing before a person arrested for any of
several serious crimes, including violations of section 273.5,
may be released on his own recognizance or on bail in an
amount either greater or lesser than the default amount for the
offense. Cal. Penal Code § 1270.1(a). Judicial officers setting
bail in an amount either greater or less than the default
amount must state the reasons for their decision on the record.
Id. § 1270.1(d).
[3] To prevail on his claim that his bail enhancement vio-
lated the Excessive Bail Clause, Galen must show that the
Commissioner enhanced his bail for purposes unauthorized by
926 GALEN v. COUNTY OF LOS ANGELES
California law or that the amount of bail was excessive in
light of the valid purposes for which it was set. But Galen has
failed to produce any evidence regarding the reasons the
Commissioner enhanced his bail. The record establishes that
Deputy Heinrich spoke to an aide at the Bail Deviation Unit
and faxed the PCD to the Unit. Deputy Heinrich communi-
cated a number of facts to the aide, including that Galen’s
fiancée feared for her safety and had been vague with sheriff’s
deputies; he believed the crime would likely continue if Galen
were released; and Galen was an attorney and could easily
post $50,000 bail. However, there is no evidence about which
information the aide provided to the Commissioner or what
additional information the Commissioner may have received.
Nor is there any evidence regarding the Commissioner’s deci-
sionmaking process, including the factors he considered in
making his bail determination and the factors he ultimately
relied on to enhance Galen’s bail. There is nothing in the
record to indicate that, other than not holding a hearing, the
Commissioner failed to follow California laws governing the
setting of bail, see Cal. Penal Code §§ 1269c, 1275, and so we
presume that he did comply with those laws.
[4] Because Galen has offered no evidence that would tend
to show that the Commissioner enhanced Galen’s bail for an
improper purpose or that his bail was excessive in light of the
purpose for which it was set, he has failed to meet his burden
for withstanding summary judgment. See Salerno, 481 U.S. at
754; Wagenmann, 829 F.2d at 213. We must disagree, how-
ever, with the district court’s conclusion that as a matter of
law Galen’s “[b]ail was not excessive,” Galen, 322 F. Supp.
2d at 1053, for the very same reason: There is no evidentiary
basis in the record to conclude one way or the other whether
Galen’s bail was “excessive” under California law or the Con-
stitution. We also disagree with the district court’s suggestion
that the fact that Galen posted bail compels a finding that his
bail was not excessive. See id. at 1055. This conclusion mis-
apprehends the concept of constitutionally excessive bail as
developed by the Supreme Court and in our case law. The
GALEN v. COUNTY OF LOS ANGELES 927
plain meaning of “excessive bail” does not require that it be
beyond one’s means, only that it be greater than necessary to
achieve the purposes for which bail is imposed. See Salerno,
481 U.S. at 754; Jennings v. Abrams, 565 F. Supp. 137, 138
(S.D.N.Y. 1983).
[5] The Commissioner’s failure to hold a hearing in open
court before enhancing Galen’s bail and to state his reasons
for the enhancement on the record, as required by California
Penal Code section 1270.1, does not excuse Galen from his
burden of demonstrating in this § 1983 action that his bail was
excessive. We will not assume that Galen’s bail was excessive
simply because the state failed to comply with a self-imposed
procedural requirement, particularly where, as here, Galen
never requested a hearing before the Commissioner or chal-
lenged his bail enhancement in any way before being released
from custody.3 Nor do we accept Galen’s argument that pro-
cedural violations of California bail law suffice to establish a
deprivation of a federal right. Section 1983 requires Galen to
demonstrate a violation of federal law, not state law. See, e.g.,
Sweaney v. Ada County, 119 F.3d 1385, 1391 (9th Cir. 1997).4
We also reject Galen’s argument that flight risk is the only
factor the Commissioner was allowed to consider in setting
bail, and, accordingly, that his bail was excessive because it
exceeded the amount necessary to prevent flight in light of his
ties to the community and partial custody of his two school-
age children. California law not only authorized, but required,
the Commissioner to “take into consideration the protection of
3
The County does not contend that Galen has waived or failed to admin-
istratively exhaust his civil rights/excessive bail claim by failing to chal-
lenge his bail at the time it was set.
4
Galen has not raised a procedural due process argument before us. We
specifically leave open for another day the question of whether a litigant
who actually challenged their bail at the time, or who asserted a proce-
dural due process claim, may be entitled to a burden-shifting presumption,
since in the absence of a public record, the Commissioner is uniquely
aware of the ratio decidendi.
928 GALEN v. COUNTY OF LOS ANGELES
the public, the seriousness of the offense charged, the previ-
ous criminal record of the defendant, and the probability of
his or her appearing at trial or hearing of the case,” Cal. Penal
Code § 1275(a), and “to set bail in an amount that he . . .
deems sufficient . . . to assure the protection of a victim . . .
of domestic violence,” id. § 1269c. Salerno holds that these
non-flight-related considerations are permissible and therefore
forecloses Galen’s argument that his bail was unconstitution-
ally excessive to the extent it was designed to serve interests
other than prevention of flight. 481 U.S. at 754.
Galen’s contentions that his bail was excessive simply
because it was 2000 percent higher than the default amount
for section 273.5 violations, and greater than the default
amount for other, more serious crimes, are likewise unavail-
ing. Excessiveness cannot be determined by a general mathe-
matical formula, but rather turns on the correlation between
the state interests a judicial officer seeks to protect and the
nature and magnitude of the bail conditions imposed in a par-
ticular case. See Salerno, 481 U.S. at 754. Without examining
the relevant state interests, courts cannot determine whether
bail conditions are constitutionally excessive. See id. Thus in
In re Christie, the California Court of Appeal remanded to the
trial court to articulate specific grounds for its decision to
impose bail of 1000 percent of the default amount because the
record was insufficient to determine what factors the trial
court had considered and therefore whether bail was exces-
sive. 92 Cal. App. 4th at 1109-11.
Galen relies heavily on Wagenmann, but Wagenmann does
not bear the weight Galen places on it. There, the plaintiff met
his burden of demonstrating that his bail was set for improper
purposes. Law enforcement personnel had prevented Wagen-
mann from contacting his daughter in the days preceding her
wedding to the son of a locally powerful family by arresting
him, arranging for excessive bail to keep him imprisoned, and
ultimately confining him in a mental institution. Id. at 201-05.
A jury found by a preponderance of the evidence that a police
GALEN v. COUNTY OF LOS ANGELES 929
officer caused Wagenmann’s bail to be unconstitutionally
excessive by arranging for bail to be set at $500 when he
knew Wagenmann had only $480 on hand, and awarded
Wagenmann damages under § 1983. Id. at 199, 204. On
appeal from the district court’s denial of defendants’ motions
for judgments notwithstanding the verdicts and for new trials,
the First Circuit held that in light of the trial court’s jury
instruction that the purpose of bail was to ensure the presence
of the accused at future proceedings, the evidence supported
the jury’s finding that bail was excessive. Id. at 213.
Unlike here, in Wagenmann there was sufficient evidence
from which a jury could and did find that the sole purpose in
setting bail was to prevent Wagenmann from securing his
release, not to assure his presence at future court proceedings
or to protect the public safety. This was not a “compelling
interest,” Salerno, 481 U.S. at 754, that the state could seek
to achieve by imposing onerous bail conditions. Thus,
Wagenmann’s jury “was certainly warranted in finding that
bail—in an amount engineered purposefully to guarantee con-
tinued confinement—was excessive.” Wagenmann, 829 F.2d
at 213.
2. Causation
[6] Even if Galen could establish that his bail was exces-
sive, the district court correctly concluded that he cannot dem-
onstrate that Sergeant Barrier or Deputy Heinrich were the
actual and proximate cause of his bail enhancement, as he is
required to do by Baker, 443 U.S. at 142, and Leer, 844 F.2d
at 634. California vests judicial officers with the exclusive
authority to enhance or reduce bail. See Cal. Penal Code
§ 1269c. Pursuant to traditional tort law principles of causa-
tion, which we apply to § 1983 claims, see Van Ort v. Estate
of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996), a judicial offi-
cer’s exercise of independent judgment in the course of his
official duties is a superseding cause that breaks the chain of
causation linking law enforcement personnel to the officer’s
930 GALEN v. COUNTY OF LOS ANGELES
decision, see Hoffman v. Halden, 268 F.2d 280, 296-97 (9th
Cir. 1959), overruled in part on other grounds by Cohen v.
Norris, 300 F.2d 24, 29-30 (9th Cir. 1962); Restatement (Sec-
ond) of Torts § 440. Thus in Walden v. Carmack, the Eighth
Circuit held that a sheriff could not be liable under § 1983 for
violating the plaintiffs’ right to be free from excessive bail,
even if he recommended a bail amount to the judicial officer
who set plaintiffs’ bail, because “setting the bail bond is
entirely at the discretion of the presiding judge.” 156 F.3d
861, 874 (8th Cir. 1998).
[7] Sergeant Barrier and Deputy Heinrich can be liable for
Galen’s allegedly excessive bail only if they prevented the
Commissioner from exercising his independent judgment. See
Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir. 1981), as
amended (police officers may be liable for a falsely impris-
oned arrestee’s continued detention after a prosecutor charges
the arrestee only if they cause the prosecutor to act contrary
to his independent judgment); see also Awabdy v. City of Ade-
lanto, 368 F.3d 1062, 1067-68 (9th Cir. 2004) (applying
Smiddy). Thus, to withstand summary judgment, Galen must
show that Sergeant Barrier or Deputy Heinrich deliberately or
recklessly misled the Commissioner, and that his bail would
not have been unconstitutionally excessive but for the offi-
cers’ misrepresentations. Cf. Hervey v. Estes, 65 F.3d 784,
789 (9th Cir. 1995), as amended (a § 1983 plaintiff alleging
that a peace officer improperly procured a search warrant
must establish both that the officer made deliberately or reck-
lessly false statements and that “without the dishonestly
included or omitted information[ ] the magistrate would not
have issued the warrant.”); Mendocino Envtl. Ctr. v. Mendo-
cino County, 14 F.3d 457, 463 (9th Cir. 1994).
Galen contends that Sergeant Barrier and Deputy Heinrich
deliberately or recklessly misled the Bail Deviation Unit with
a number of false representations. These include: (1) Galen’s
fiancée feared for her safety; (2) she was being very vague
with deputies; (3) Heinrich and Barrier knew she was afraid
GALEN v. COUNTY OF LOS ANGELES 931
of Galen; (4) the offense was likely to continue; (5) Galen
could easily post $50,000 bail; (6) Galen’s fiancée required
medical treatment for her injuries; and (7) Galen had waived
his bail deviation phone call. Each of these representations,
however, is either true or was not made to the Bail Deviation
Unit. Moreover, there is no evidence that Sergeant Barrier or
Deputy Heinrich conveyed these statements to the Commis-
sioner.
[8] Sergeant Barrier did nothing more than recommend an
enhancement during her conversation with Deputy Bausmith.
She did not determine the amount of the requested enhance-
ment, and she had no contact with the Bail Deviation Unit.
With respect to Deputy Heinrich, there is no evidence that any
of the allegedly false representations Galen claims he made
reached the Commissioner. Moreover, most of the representa-
tions are true, or a reasonable person in Deputy Heinrich’s
position would have believed them to be true based on the
information he received from fellow members of the Sheriff’s
Department. Galen’s fiancée had been vague with deputies
investigating Galen’s abuse, who believed that she feared for
her safety. Deputy Bausmith told Deputy Heinrich that
Galen’s abuse was likely to continue. And although Deputy
Heinrich did not have first-hand knowledge of Galen’s fian-
cée’s concerns or of Galen’s financial resources, it was rea-
sonable to assume that she was afraid of Galen and that Galen
could easily post $50,000 bail. The remaining two allegedly
false representations, that Galen’s fiancée needed medical
treatment for her injuries and that Galen had waived his bail
deviation phone call, appeared on the Bail Deviation Form,
which was not provided to the Bail Deviation Unit or the Com-
missioner.5 Galen therefore cannot establish that Sergeant
Barrier or Deputy Heinrich made deliberately or recklessly
false statements to the Bail Deviation Unit, much less to the
Commissioner, or that such statements were a but-for cause
of the Commissioner’s decision to enhance Galen’s bail.
5
Only the PCD was faxed to the Unit.
932 GALEN v. COUNTY OF LOS ANGELES
Lacking evidence that Sergeant Barrier or Deputy Heinrich
misled the Commissioner, Galen emphasizes their desire to
have his bail set at a level high enough to prevent him from
posting bail. But Sergeant Barrier and Deputy Heinrich could
not be the actual and proximate cause of Galen’s bail
enhancement, no matter how much they desired such a result,
unless they recklessly or intentionally misled the Commis-
sioner. See Hervey, 65 F.3d at 788-89. Galen also argues that
Sergeant Barrier and Deputy Heinrich’s conduct here was
similar to that of the defendant police officer in Wagenmann,
where the First Circuit held that the plaintiff had adequately
established causation. In Wagenmann, however, “a plenitude
of evidence was offered to suggest [the police officer’s] inti-
mate involvement in the bail decision” and to indicate that the
police officer “help[ed] to shape, and exercis[ed] significant
influence over, the bail decision.” 829 F.2d at 211-12. The
police officer spoke directly to the bail commissioner, and the
record included evidence of that conversation. Id. The evi-
dence thus supported the conclusion that the police officer
recklessly disregarded the truth and “shaded [the information
he provided the judicial officer] to bring about the outcome
which the arresting officer coveted.” Id. at 212. Here, in con-
trast, there is no indication that Sergeant Barrier or Deputy
Heinrich intentionally or recklessly misled the Commissioner
or exerted any influence over his decision.
[9] Galen’s reliance on United Steelworkers v. Phelps
Dodge Corp., 865 F.2d 1539, 1546 (9th Cir. 1989) (en banc),
is likewise misplaced. In Phelps Dodge we addressed whether
metalworkers could survive summary judgment on their
§ 1983 claim against their employer, state and local govern-
ments, and law enforcement officials for conspiracy to violate
their right to be free from excessive bail during a strike. Id.
at 1540, 1547. Our emphasis on the defendants’ stated intent
to “ ‘keep [the strikers] off the streets’ ” was appropriate
because the plaintiffs alleged a conspiracy between a corpora-
tion and law enforcement officials. Id. at 1546. In contrast, in
a § 1983 suit where conspiracy is not an issue, intent is not
GALEN v. COUNTY OF LOS ANGELES 933
directly relevant to the causation inquiry. Therefore, the dis-
trict court did not err in concluding that Galen failed to estab-
lish a genuine issue of material fact as to his claim that
Sergeant Barrier and Deputy Heinrich caused his bail to be
unconstitutionally excessive.
3. Clearly Established
[10] We further agree with the district court that even if
Galen could demonstrate triable issues of fact as to whether
his bail was excessive and whether Sergeant Barrier or Dep-
uty Heinrich caused the constitutional injury, the law at the
time was not clearly established such that a reasonable peace
officer in Sergeant Barrier or Deputy Heinrich’s position
would have understood that his conduct violated the Eighth
Amendment. In deciding whether a right was clearly estab-
lished, we look to whether the alleged constitutional violation
was obvious; whether there were legal authorities declaring
the conduct at issue unconstitutional; and whether other
sources of regulatory or legal authority sanctioned the chal-
lenged practice. See Wilson v. Layne, 526 U.S. 603, 615-17
(1999). Galen bears the burden of proving that his allegedly
violated rights were clearly established. See Davis v. Scherer,
468 U.S. 183, 197 (1984).
[11] It was not obvious that Galen’s Excessive Bail Clause
rights would be violated by the imposition of $1,000,000 bail,
even assuming his bail was enhanced to prevent him from
posting bail. At the time of the alleged violation, no federal
legal authority had held that bail was unconstitutionally
excessive in the circumstances presented here, where the pub-
lic safety, protection of a domestic violence victim, and the
seriousness of the crime were all in play. Therefore, a reason-
able peace officer would not have understood that recom-
mending a bail enhancement on the additional basis of
making it more difficult for Galen to post bail would have
violated the Eighth Amendment.
934 GALEN v. COUNTY OF LOS ANGELES
[12] In addition, Sergeant Barrier and Deputy Heinrich’s
conduct was reasonable and complied with California law and
local bail procedures. California law specifically directs a
peace officer to request a bail enhancement if the “peace offi-
cer has reasonable cause to believe that the amount of bail set
forth in the schedule of bail for that offense is insufficient . . .
to assure the protection of a victim . . . of domestic violence
. . . .” Cal. Penal Code § 1269c. The County’s Jail Manual
provides that requests for bail enhancements should go
through the Bail Deviation Unit, which serves to process such
requests and present them to a bail commissioner for his dis-
cretionary evaluation. L.A. County, L.A. Station Jail Manual,
at XVII-1. In this context, state law and local regulations
sanctioned Sergeant Barrier and Deputy Heinrich’s conduct.
See Wilson, 526 U.S. at 617 (emphasizing that law enforce-
ment policies sanctioned the challenged conduct in holding
that the right at issue was not clearly established). Because the
law regarding excessive bail and peace officers’ liability for
recommending bail enhancements was not clearly established,
Sergeant Barrier and Deputy Heinrich are entitled to qualified
immunity. See Saucier, 533 U.S. at 202.
B. Attorneys’ Fees
The district court properly awarded attorneys’ fees to the
County for Galen’s post-discovery litigation of his Monell
claim. But, the district court abused its discretion when it held
that Galen’s continuing litigation of his claims against the
individual defendants was frivolous and awarded attorneys’
fees to them for the post-discovery period.
On October 23, 2003, the County filed its motion for sum-
mary judgment. The district court had set a discovery cut-off
date of November 3, 2003, by which time Galen had deposed
Sergeant Barrier and Deputy Heinrich and obtained all the
documents from the County that he would obtain. Galen then
filed an opposition to the County’s motion and continued liti-
gating through January 2004, when the district court granted
GALEN v. COUNTY OF LOS ANGELES 935
summary judgment. The County then moved for attorneys’
fees. The district court concluded that by November 2003,
when Galen had completed discovery, he should have known
that Sergeant Barrier and Deputy Heinrich had not caused his
bail to be unconstitutionally excessive, that Sergeant Barrier
and Deputy Heinrich were entitled to qualified immunity, and
that there was no evidence to support his Monell claim. The
district court awarded the County attorneys’ fees of $23,400
for the post-discovery period, which included litigation of the
County’s motions for summary judgment and attorneys’ fees.
[13] A district court may award attorneys’ fees pursuant to
42 U.S.C. § 1988 to a prevailing civil rights defendant if the
plaintiff’s action was “unreasonable, frivolous, meritless, or
vexatious.” Vernon v. City of Los Angeles, 27 F.3d 1385,
1402 (9th Cir. 1994) (internal quotation marks omitted). An
action becomes frivolous when the result appears obvious or
the arguments are wholly without merit. See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also
Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (per curiam). A
defendant can recover if the plaintiff violates this standard at
any point during the litigation, not just at its inception. See
Christiansburg Garment Co., 434 U.S. at 422.
[14] After the completion of discovery in November 2003,
it had become obvious Galen lacked direct evidence demon-
strating that Sergeant Barrier or Deputy Heinrich caused his
bail to be unconstitutionally excessive or that a reasonable
peace officer in the shoes of Sergeant Barrier or Deputy Hein-
rich would have understood his conduct to violate the Exces-
sive Bail Clause. Galen had failed to uncover evidence
indicating that Sergeant Barrier or Deputy Heinrich deliber-
ately or recklessly provided false information to the Bail
Deviation Unit. Galen also had not obtained evidence of the
information the Commissioner received or the factors he con-
sidered in enhancing Galen’s bail. For that reason, summary
judgment was appropriate. But, that Galen lost at summary
judgment does not render his case per se frivolous, unreason-
936 GALEN v. COUNTY OF LOS ANGELES
able, or without foundation. In the absence of controlling
Ninth Circuit or Supreme Court authority, and given the First
Circuit’s decision in Wagenmann, which lent support to his
argument, Galen’s perseverance in his suit was not unreason-
able. See, e.g., Karam v. City of Burbank, 352 F.3d 1188,
1195 (9th Cir. 2003) (“A case is less likely to be considered
frivolous when there is very little case law directly apposite.”
(internal quotation marks omitted)). In Taylor AG Industries.
v. Pure-Gro, 54 F.3d 555, 563 (9th Cir. 1995), we considered
what it means for a case to be “wholly without merit.” There,
although the relevant law had been clearly established by the
Supreme Court and seven other courts of appeal, we held that
plaintiff’s claim was not “wholly without merit” and declined
to award attorneys’ fees. See id. Similarly, because we con-
clude that the law on excessive bail was not clearly estab-
lished at the time of Galen’s claim, Galen did not have reason
to know that his case was wholly without merit.
[15] The district court did not abuse its discretion, however,
in holding that Galen’s continuing litigation of his Monell
claim after the completion of discovery was frivolous.
Galen’s complaint alleged that the County “knowingly main-
tained, enforced and applied a policy and practice of regularly
departing from the mandates and requirements of” California
bail law. To prevail on this claim, Galen was required to
establish that the County had a deliberate policy, custom, or
practice that was the “moving force” behind the constitutional
violation he suffered. Monell, 436 U.S. at 694-95; see also
City of Canton v. Harris, 489 U.S. 378, 385 (1989) (a Monell
plaintiff must show “a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation”).
The County may be liable if it fails to properly train peace
officers and the “failure to train amounts to deliberate indif-
ference to the rights of persons with whom the [officers] come
into contact.” City of Canton, 489 U.S. at 388.
[16] During discovery Galen failed to uncover any evi-
dence indicating that the County had a policy or practice
GALEN v. COUNTY OF LOS ANGELES 937
designed to ensure or resulting in the setting of excessive bail.
Nor did he uncover any evidence of failure to train officers in
proper bail setting procedures. To the contrary, the County
Jail Manual, which directs peace officers to seek bail
enhancements through the Bail Deviation Unit, suggests that
the County’s policies were consistent with state bail law. That
in this particular case the Commissioner did not hold a hear-
ing before enhancing Galen’s bail or state his reasons for the
enhancement on the record, as required by California Penal
Code section 1270.1, is not sufficient to establish that the
County maintained a policy or practice leading to Excessive
Bail Clause violations. Based on the evidence Galen acquired
during discovery, it was obvious that he could not meet his
burden of demonstrating that the County’s deliberate conduct
was the moving force behind the alleged constitutional viola-
tion. See Monell, 436 U.S. at 694-95; see also Bd. of County
Comm’rs v. Brown, 520 U.S. 397, 404 (1997).
IV. Conclusion
Based on the foregoing, we AFFIRM the district court’s
grant of summary judgment. We AFFIRM the award of attor-
neys’ fees to the County, REVERSE the award of attorneys’
fees and REMAND to the district court to apportion the attor-
neys’ fees award to conform with our holding. The parties
shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART AND
REMANDED.