Ninth Circuit Revives Rights Suit Against Prosecutor in Biker Murder Case 

By KENNETH OFGANG, 

Staff Writer Metropolitan News-Enterprise 

Police are immune from liability for the arrest and jailing of a leader of a motorcycle club and his wife after a killing outside a Stocktonbar, but a prosecutor may be liable, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Stocktonpolice officers relied on a valid warrant in searching Mark and Heather Ewing’s home and in arresting the couple, who spent eight days in jail before being released without charges, Judge Lynn Adelman wrote for the Ninth Circuit, so the officers have qualified immunity.

But Adelman, a visiting judge from the U.S. District Court for the Eastern District of Wisconsin, concluded that if a prosecutor told the police to book the plaintiffs on murder charges, he did so in an administrative capacity and lacks the absolute immunity the district judge found that he had.

Judge Pamela A. Rymer and Senior Judge A. Wallace Tashima concurred.

Mark Ewing, vice president of the Jus’ Brothers Motorcycle Club—their website declares that they “are not a gang”—and his wife Heather Ewing were arrested after the 2004 fight. Mark Donahue, 22, was stabbed and died at a hospital. Two other members of the Jus’ Brothers were charged and tried, with one being convicted of second degree murder and the other of attempted voluntary manslaughter.

Search Warrant 

A search warrant was issued for the Ewings’ home, based on an affidavit by Officer William J. Hutto. The officer declared that a friend of the victim had identified a woman in a photo on the club’s website as having been involved in a bumping or pushing incident with Donahue that precipitated the fight.

Hutto further declared that he had showed the photo to a district attorney investigator, who identified the woman as Heather Ewing. He said that Ewinghad recently been arrested for domestic violence, which turned out not to be true, the officer subsequently explaining that the arrestee was actually a woman with the same last name. 

He also repeated, incorrectly, a statement by the investigator concerning the name of the man to whom the woman called out during the fight. While Hutto quoted the investigator as saying “the name ended with the letter ‘K,’” the investigator later said he told Hutto that the name “may have had like, uh, uh, K type of sound at the end of it, like a Mike or Jack.”

The search resulted in the seizure of guns, drugs, and motorcycle club paraphernalia, and the Ewings were arrested on weapons and controlled substances charges. After three of five witnesses who were shown their photos identified Heather Ewing as the woman involved in the incident, and one said he was 50 to 60 percent sure that Mark Ewing was present, police charged the Ewings with murder and they were held without bail.

After the two men who were later convicted, Frank Prater and Robert Memory, turned themselves in, the Ewings were released. They subsequently presented evidence that the murder charges were filed despite the police expressing doubt as to their guilt based on information supplied by a number of witnesses.

The Ewings sued Hutto and two other investigating officers, along with the district attorney of San JoaquinCountyand a deputy district attorney who allegedly told one of the officers that the eyewitness identifications were sufficient to charge the Ewings with murder.

Summary Judgment 

In granting summary judgment to the defendants, U.S. District Judge William Shubb of the Eastern District of California said there was probable cause to issue the search warrant, despite the inaccuracies in the underlying affidavit, and that there was probable cause for arrest and detention. He also concluded that Deputy District Attorney Lester Fleming—who denied recalling a conversation with one of the officers regarding murder charges—had absolute immunity.

Adelman, writing for the Ninth Circuit, said Shubb was correct with respect to the officers. They were entitled, he said, to rely upon Fleming’s advice and on the facts of the case as they knew them at the time.

But the advice to add murder to the charges, thus preventing the couple from bailing out for more than a week, was akin to advising the police on investigative techniques—which the U.S. Supreme Court has held is outside the scope of prosecutorial immunity, Adelman wrote.

If the officer’s testimony is accurate, Adelman added, the advice Fleming gave him was not a “charging decision,” since the actual decision to file charges was not made until two days later. Nor does the evidence presented in behalf of Fleming establish that he is entitled to qualified immunity, the jurist concluded.

The district attorney, on the other hand, was correctly dismissed from the case, since there is no evidence that he personally involved himself in the arrest and detention of the Ewings or that they were the victims of any unconstitutional office policy, Adelman said.

The case is Ewing v. City of Stockton, 08-15732.

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