UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHANE LOVE, No. 20-56003

Plaintiff-Appellant, D.C. No. v. 2:20-cv-06557- PA-SP AARON VILLACANA, Pasadena PD Officer, individually and in official capacity; THOMAS BUTLER, OPINION Pasadena PD Officer, individually and in official capacity; ROBERT GRIFFITH, Pasadena PD Officer, individually and in official capacity; MICHAEL OROSCO, Pasadena PD Officer, individually and in official capacity; PHILLIP POIRIER, Pasadena PD Officer, individually and in official capacity; RAFAEL SANTIAGO, Pasadena PD Officer, individually and in official capacity; CITY OF PASADENA; PHILLIP SANCHEZ, Former PPD Chief, individually and in official capacity; PEREZ, PPD Chief, individually and in official capacity; DOES, 1-10 inclusive,

Defendants-Appellees. 2 LOVE V. VILLACANA

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted June 6, 2023 Pasadena, California

Filed July 11, 2023

Before: J. Clifford Wallace and John B. Owens, Circuit Judges, and Sidney A. Fitzwater, * District Judge.

Opinion by Judge Wallace; Concurrence by Judge Owens

SUMMARY **

Article III Standing / 42 U.S.C. § 1983

The panel vacated the district court’s dismissal of a 42 U.S.C. § 1983 action brought against the City of Pasadena and several of its police officers. In 2018, Shane Love filed a federal Terry action against the Defendants, seeking to recover for the death of Reginald Thomas, a father figure to Love. The Terry action, which

* The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOVE V. VILLACANA 3

included a section 1983 claim, was dismissed with prejudice for lack of Article III standing in 2019. Love then filed a nearly identical lawsuit in California state court, which the Defendants removed to federal court and successfully moved to dismiss based on issue preclusion. The panel held that a plain reading of the first district court’s judgment established that Article III standing was actually litigated and decided, although erroneously. However, erroneous, unappealed judgments are still owed preclusive effect. The panel concluded that issue preclusion was available, and Love was bound by the prior standing determination. While issue preclusion was available, the panel held that the Defendants waived issue preclusion by removing the refiled case to federal court because a removing defendant voluntarily invokes and acquiesces to the federal courts and bears the burden of establishing subject-matter jurisdiction and Article III standing. Accordingly, the panel vacated and remanded to the second and current district court to determine, in the first instance, whether jurisdiction lies in the federal courts and whether Love adequately stated a claim, if the Defendants pursue such an argument on remand. Concurring in the judgment, Judge Owens disagreed with the majority that issue preclusion applies notwithstanding waiver, and he would not reach the issue of waiver. Because the district court erred in framing the issue in this case as one of Article III standing and by subsequently applying issue preclusion, he agreed that the panel should vacate and remand so that the district court could properly assess the merits of Love’s claims. 4 LOVE V. VILLACANA