On Monday, the U.S. Court of Appeals in San Francisco heard oral arguments in the case of Kyle Zoellner v. City of Arcata, in which Kyle Zoellner’s attorney alleged that Arcata Police Department detective Eric Losey fabricated evidence that led to her client’s arrest as the primary suspect in the stabbing death of David Josiah Lawson in 2017.

The appeals case was filed after a U.S. District Court overturned the decision of a federal jury that sided with Zoellner against Losey and the City of Arcata, both of which happened in October 2022. If the jury’s verdict had stood, the City and Losey would have been ordered to award Zoellner more than $750,000 for “malicious prosecution.”

Whether or not the District Court’s decision to overturn was made in error is the question now before the U.S. Court of Appeals for the Ninth Circuit.

Arguments made on both sides in Monday’s hearing centered around questions of “qualified immunity” – which protects government officials in cases of lawsuit if the official acted “in a reasonable but mistaken way” – and probable cause.

“A reasonable officer with Mr. Losey’s knowledge would believe there was a fair probability that Mr. Zoellner stabbed Mr. Lawson,” U.S. District Court Judge Jacqueline Scott Corley wrote in the October 2022 ruling that overturned the jury’s verdict.

Judge Scott Corley’s identification of probable cause became a point of note as the appellate judges – Jacqueline Nguyen, Ryan D. Nelson and Daniel Bress – assessed exactly what the case required of them.

“We’re being asked here whether the district court erred in making a probable cause finding as to Losey, correct?” Judge Nelson asked from the bench. “We cannot just decide and say, ‘Hey, there’s qualified immunity for those counts?’ We actually have to reach the probable cause determination?”

Nelson answered his own question shortly thereafter, noting that the court’s finding of either probable cause or qualified immunity would “get you to the same place” (that place being: support for the District Court decision to overturn Zoellner’s victory).

Opening the appeal, Zoellner’s attorney, Elizabeth Zareh, argued that because “no additional facts” had been presented since the jury’s initial decision siding with Mr. Zoellner, probable cause “should not be relitigated.”

“If it is being relitigated, there should be a strong presumption that there is no probable cause and the burden [of proof] should shift on the other side to show whether there was sufficient evidence,” she said, referring to the Judge Dale Reinholtsen’s decision to release Zoellner in 2017 and the 2019 Humboldt County Grand Jury decision which declined to indict Zoellner, or any other person, in the stabbing death of Lawson.

Zareh also argued that qualified immunity “would not come into play when there is a fabrication of evidence by the police officers,” reiterating claims that Losey fabricated evidence against Zoellner in a police report detailing the eyewitness testimony of Jason Martinez, which was subsequently repeated in the charging summary submitted to the Humboldt County District Attorney’s office by Arcata Police detective Todd Dokweiler in April 2017.

In the report, Losey wrote that Martinez had identified Zoellner as the person who stabbed Lawson.

“He [Martinez] made a statement to Detective Losey that he was at the party, and he was walking from a distance, and he saw someone stop Mr. Lawson,” Zareh said, adding that Martinez neither named nor “described the physical appearance” of the person he saw with Lawson.

Losey alerted the DA’s office to the erroneous claim in the report – which Lori Sebransky, the attorney representing Losey and the City of Arcata, referred to in Monday’s hearing as a “mistake” – before the May 1, 2017 preliminary hearing in the murder case brought by the District Attorney.

The hearing was followed by a Humboldt County Superior Court decision that the DA did not have sufficient evidence to hold Zoellner to answer for the crime, which was followed by his release and subsequent suit against the City of Arcata and select Arcata Police Department personnel for malicious prosecution, unlawful arrest, defamation and other violations of rights. Losey was the only individual defendant named in the 2022 trial after a U.S. District Court judge threw out part of Zoellner’s case earlier that year.

Despite Zareh’s initial stand against relitigating probable cause, the longest statements in the hearing from either side recounted the scene officers arrived to on April 15, 2017, the date of the stabbing, with Sebransky arguing that probable cause was reached and Zareh highlighting what she said were “significant issues” with the evidence.

Zareh went first, arguing that no witness had reported seeing Zoellner with a knife and that the knife found at the scene lacked DNA or forensic evidence tying it to Zoellner. She also focused on what she said were discrepancies between eyewitness accounts of the fight between Lawson and Zoellner and the blood patterns found on the scene and on Zoellner’s clothes – saying that his shoes and hands were clean, and the blood on his clothing was never forensically linked to Lawson.

“There’s testimony that Mr. Zoellner suffers from severe blood issues relating to his nose, bleeding from his nose,” she said, adding that Zoellner’s father had previously testified that even as a child, “every time there was any kind of minor impact, he was bleeding very heavily.”

Sebransky, on the other hand, called the evidence for probable cause “quite strong” and pointed out that it was “undisputed” by the plaintiff in trial before beginning her review of the evidence.

She began by saying that witnesses pointed the first officer on the scene to Zoellner, and that he found Zoellner “covered in blood” before learning that Zoellner and Lawson had fought because “he [Zoellner] was questioning whether somebody stole the girlfriend’s phone.”

She described the testimony of an eyewitness, Paris Wright, who had seen Lawson after the fight. “He is not stabbed,” Sebransky said. “Everything is fine.”

“A few minutes later, Paris Wright hears a scream, looks up the hill, sees Mr. Zoellner in a [second] fight with Mr. Lawson,” she continued. “When Mr. Wright pulls them apart, he sees that now Mr. Lawson is stabbed.”

Sebransky also argued that the discovery of a kitchen knife at the scene, which she called “unusual” in a stabbing “outside of a kitchen,” and the fact that Zoellner was a chef and kept knives in a bag in his car contributed to probable cause.

“No one else that night had been in a fight with Mr. Lawson,” she concluded, “And no one else that the officers could discover had any kind of a motive to kill him.”

A judge then questioned Sebransky about Zareh’s argument that the blood pattern officers encountered at the scene was in a different area than eyewitnesses reported to be the site of the second fight between Zoellner and Lawson, to which she responded that Wright said that he had seen Lawson crawl after being stabbed.

The judges’ final question for Sebransky centered on the plaintiff’s claim of fabricated evidence, and she reiterated that while Losey’s report was made in error, there was “no fabrication.”

“If the only thing we had was a fabricated statement, this guy did it, and that turned out to be false, then no qualified immunity,” Sebransky continued on to say, “But whereas here we have all of this other evidence supporting qualified immunity, then qualified immunity would still apply if the court chose to go down that road instead of just making a decision on the constitutionality of the arrest based on the probable cause itself.”

The hearing concluded with a brief rebuttal from Zareh, which clarified the plaintiff’s claims of fabricated evidence and was cut short for time, before the Court called recess for the day without making clear when its decision on the appeal can be expected.

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CORRECTION: This post initially misspelled the name of Lori Sebransky. The Outpost regrets the error.

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Ed note: Gillen Tener Martin is working for the Outpost this summer. She’s on an internship from her journalism program at Paris’ prestigious Sciences Po. Disclosure: she previously worked for the City of Arcata, beginning in 2019. She was uninvolved in the case this article covers.

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PREVIOUS LoCO COVERAGE OF THE LAWSON CASE: