Appellate brief for Oakland defendants in Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir.1999)

United States Court of Appeals,

Ninth Circuit.

Judi BARI, et al., Plaintiffs-Appellees,

v.

Frank DOYLE, Jr., et al., Defendants-Appellants.

No. 97-17375.

June 5, 1998.

On Appeal from the United States District Court for the Northern District of California

Brief for the Oakland Defendants

Jayne w. Williams, City Attorney, Randolph W. Hall, Assistant City Attorney, Karen A. Rodrigue, Supervising Trial Attorney, One Frank Ogawa Plaza, 6th Floor, Oakland, California 94612, (510) 238-3539.

*i TABLE OF CONTENTS

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ... 1

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ... 2

STATEMENT OF THE CASE ... 2

A. Factual Background ... 3

B. The District Court Ruling ... 3

Plaintiffs' Arrests ... 4

The First Search Warrant ... 5

The Second Search Warrant ... 6

Plaintiffs' Claims of Conspiracy and 1st Amendment Violations ... 6

STANDARD OF REVIEW ... 7

1. The Court Has Jurisdiction to Hear This Appeal ... 7

2. The Standard for Evaluating The Arrest Claim ... 11

3. The Standard for Evaluating the Search Claim ... 12

4. The Standard for Evaluating the Defendants' Immunity ... 14

INTRODUCTION AND SUMMARY OF ARGUMENT ... 16

ARGUMENT ...

I. The District Court Failed to Fully Apply The Ruling in Whitely and its Progreny. ... 17

The Search Warrrants ... 17

The Arrest of the Plaintiffs ... 20

*ii II. The District Court Erred in its Finding of Materiality of Certain Facts in Light of its Decision That The Oakland Defendants Did Not Engage on a Conspiracy or Violate Plaintiffs' 1st Amendment Rights. ... 23

CONCLUSION ... 27

STATEMENT OF RELATED CASES ... 28

CERTIFICATE OF SERVICE ... 29

*1 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

A. The district court's jurisdiction was invoked under 28 U.S. C. § 1331 and 28 U.S.C. § 1343. To the extent that plaintiffs have charged that the Oakland defendants have violated their constitutional rights, jurisdiction rests on 28 U.S.C. § 1331.

B. Jurisdiction in this court is supplied by 28 U.S.C. § 1291, as well as by decisions of the Supreme Court and of this court, authorizing appeals from interlocutory orders that deny motions for summary judgment based on qualified immunity claims when the question on appeal involves a matter of law. See, Mitchell v. Forsyth, 472 U.S. 511, 527 (1985); Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Hunter v. Bryant, 502 U.S. 224 (1991); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Collins v. Jordan, 110 F.3d 1363, 1371.

C. On October 15, 1997, the district court denied in part, and granted in part, the Oakland defendants' motion for summary judgment, effectively denying the defendants the qualified immunity they had sought on several claims. (E.R. at 1). [n. 1] A notice of appeal was filed by the Oakland defendants on December 15, 1997. (E.R. at 68).

n. 1. "E.R." refers to the Excerpts of Record filed with this brief by the appellants.

*2 STATEMENT OF ISSUES PRESENT FOR REVIEW

1. Whether the lower court's order denying the Oakland defendants' qualified immunity on several counts of the complaint was incorrect, in that the lower court failed to apply the doctrines found in Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971), Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986) and other 9th Circuit authority.

2. Whether the lower court's order denying the Oakland defendants' qualified immunity on several counts of the complaint was incorrect, in that the lower court relied upon disputes of fact that were not material.

STATEMENT OF THE CASE

Plaintiffs sued the three Oakland defendants and others for alleged violations of plaintiff's constitutional rights. After several amendments, plaintiffs' finally filed a Seventh Amended Complaint upon which the Oakland defendants moved for summary judgment arguing that probable cause existed to arrest the plaintiffs and to conduct two searches pursuant to warrants signed by a Judge. Alternatively, the Oakland defendants argued that they were entitled to qualified immunity from suit.

*3 The district court granted the motion for summary judgment in part, but denied the motion in part. The three Oakland defendants now appeal the district court's decision, which denies them qualified immunity from suit.

A. Factual Background

On May 24, 1990, a bomb went off within the passenger compartment of a car in which the plaintiffs were riding in Oakland, California. Based on their observations at the scene of the explosion, investigators concluded that the bomb was located in a position in which it would have been visible to persons who had loaded the rear seat area of the car. Based on that and other evidence, later that evening, search warrants were sought from the California courts for the residence of one of the plaintiffs, and the Oakland authorities determined to arrest the plaintiffs for knowingly transporting an explosive device.

A detailed recitation of the facts relating to the plaintiffs' arrest and the searches pursuant to warrant is found in the Court's Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. (E.R. at 2-19).

B. The District Court Ruling

As we have noted, motions for summary judgment were filed by the Oakland and federal defendants. Although the motion was filed jointly by *4 all defendants, here we are concerned only with the Court's ruling as it pertains to the Oakland defendants' right to qualified immunity.

Plaintiffs' Arrests

The district court concluded that there were disputed facts regarding what Federal defendant Special Agent Doyle, and Oakland defendants Sgts. Sitterud and Chenault, and Lt. Sims knew with regard to the location of the bomb and the match of the nails and that these facts were material to determining whether the Oakland defendants had probable cause to arrest the plaintiffs. (E.R. at 38-43).

Specifically, the district court referred to the following facts, among others, in its discussion prior to making the above generalized statement of materiality: (1) whether SA Doyle told Sgts. Sitterud and Chenault that his opinion was tentative and depended on seeing a comparison car and getting results from laboratory tests (E.R. at 38); (2) whether Sgts. Sitterud and Chenault believed that a bag of nails in Bari's car matched the nails taped to the bomb (E.R. at 38); (3) whether the defendants considered the possibility that the bomb may have been hidden under the driver's seat or under other items in the car (E.R. at 39); (4) whether, at the time of arrest, Sims, Sitterud or Chenault considered that it was unusual for a bomber to place a bomb in the passenger compartment of the intended victim's car rather than in the *5 engine compartment (E.R. at 39); (5) whether defendants investigated the possibility that someone other than plaintiffs had access to Bari's car before the explosion (E.R. at 40; and (6) the extent of defendants' knowledge of Earth First!'s reputation before arresting Bari (E.R. at 40).

As to the arrest of plaintiff Cherney which occurred the following morning, the district court stated that there were material disputed facts as to what the Oakland defendants knew and what the federal defendants told them (E.R. at 42). The district court found material that, although the officers found what they believed to be a "road spiking kit" in Cherney's van, the record did not show any physical evidence tying Cherney to the bomb in Bari's car (E.R. at 42).

The First Search Warrant

With respect to the first search warrant, the district court found that there was a material question as to the following: (1) whether the affidavit accurately stated Defendants' collective knowledge of the evidence at the time the search warrant was sought. (E.R. at 46); (2) whether what the defendants knew about the size of the hole in the car precluded a determination of whether it was reasonable for SA Doyle to offer his opinion that the bomb was located behind the seat, as opposed to being at least partially under the seat. (E.R. at 46); (3) whether defendants recklessly or *6 intentionally misrepresented the truth about the nails in the bags in Bari's car (E.R. at 47); (4) whether Chenault recklessly or intentionally misrepresented the interviews with witnesses Marr and Kemnitzer regarding Earth First!'s reputation for violence. (E.R. at 48); (5) whether defendant Reikes referred to Earth First! as a terrorist group (E.R. at 49); (6) whether defendant Chenault made a false statement in his affidavit that Cherney stated someone "threw" a bomb at the vehicle (E.R. at 49).

The Second Search Warrant

As to the second search warrant, the district court found material the following facts: (1) whether defendant Sitterud recklessly or intentionally misrepresented SA Williams' ability to determine the size of the batch of nails (E.R. at 52); (2) whether defendant Sitterud was reckless or intentionally misrepresented information when incorporating the affidavit for the search warrant as an exhibit to the second search warrant without correction (E.R. at 52).

Plaintiffs' Claims of Conspiracy and 1st Amendment Violations

The district court found that plaintiffs failed to produce any evidence that the Oakland defendants harbored any animus against them that would support a claim for violation of their 1st Amendment rights. (E.R. at 61). Further, the district court found that there was no evidence that the Oakland *7 defendants had any pre-existing investigation of Earth First! in general or plaintiffs in particular, and that there was no evidence that the Oakland defendants attempted to engage in any cover-up. (E.R. at 61). Lastly, the district court found no evidence that the Oakland defendants participated in any alleged conspiracy to violate plaintiff's constitutional rights. (E.R. at 63-64). Accordingly, the district court granted summary judgment to the Oakland defendants on the conspiracy and 1st Amendment claims.

STANDARD OF REVIEW

1. The Court Has Jurisdiction to Hear This Appeal

In an Order to Show Cause and an Order following plaintiff's motion for summary dismissal of the Oakland defendants' appeal, this Court requested the parties brief the issue of whether this Court has jurisdiction to hear this appeal in light of the Supreme Court's ruling in Johnson v. Jones, 515 U.S. 304 (1995).

This Court has jurisdiction to hear this appeal brought by appellants Sims, Chenault and Sitterud. Unlike the order denying qualified immunity before the Court in Johnson v. Jones, 515 U.S. 304 (1995), appellants to not ask the Court to "consider the correctness of the defendants' version of facts..." Appellants ask the court to determine whether the facts the District Court concluded were disputed are material to the issue of qualified *8 immunity.

"[A] denial of summary judgment on qualified immunity grounds is not always unappealable simply because a district judge has stated that there are material issues of fact in dispute." Collins v. Jordan, 110 F.3d 1363, 1370, citing Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 842, 133 L.Ed2d 773 (1996).

This court still has jurisdiction to consider appellants' claim that the disputed fact is not material. "Such a claim is of a different character from a claim that the court's findings are not supported by the record. The claim of lack of materiality is solely one of law, and therefore is reviewable on an interlocutory basis." Id.

In this Court's most recent published ruling regarding jurisdiction over an interlocutory appeal of qualified immunity, the Court once again acknowledged that it has jurisdiction to consider an interlocutory appeal where a district court denies a motion for summary judgment based on qualified immunity when the question on appeal involves a matter of law. Thomas v. Gomez, 98 Daily Journal D.A.R. 4957 (Filed May 12, 1998). Furthermore, the Court reiterated that a denial of summary judgment on qualified immunity grounds is not always unappealable simply because the district court concludes that the issues of fact in dispute are material. *9Collins v. Jordan, supra, 110 F.3d at 1370. "Under Johnson and Behrens, an appellate court has jurisdiction to hear an interlocutory appeal where defendants assert that the district court erred in determining that the dispute facts were material.

Furthermore, appellants submit that this Court has jurisdiction to determine whether the lower court erred in not considering appellants' right to rely upon information provided to them by other law enforcement personnel, as a basis for probable cause or, at least, in the determination of whether they are entitled to qualified immunity. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568 (1971).

Contrary to the facts in Thomas, such is the allegation here. In Thomas, a prisoner brought § 1983 claims against various correctional officers under the 8th Amendment for cruel and unusual punishment when they allegedly aimed a loaded weapon at him for no apparent reason. The defendants' motion for summary judgment was denied when the district court determined that there were material facts in dispute. Defendants had objected to the court considering the plaintiff's second amended complaint, as though it were verified, in opposition to the motion.

*10 On appeal, the defendants' sole argument was that the record did not support the district court's determination that a factual dispute existed. This court dismissed for lack of jurisdiction under Johnson v. Jones, supra.

To the contrary of Thomas, the Oakland defendants ask the court to determine whether the facts the district court concluded were disputed, are material to the issue of qualified immunity. The Court dismissed the conspiracy claim and 1st Amendment claim against the Oakland defendants. Thus, there is clearly a question as to whether the disputed facts that the district court referred to as being material are such.

Moreover, there remains an issue of law in whether the district court erred in not fully considering the Oakland defendants right to rely upon information provided to them by other law enforcement personnel, as a basis for probable cause or, at least, in the determination of whether they are entitled to qualified immunity. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568 (1971); see also Arnsberg v. United States, 757 F.2d (9th Cir. 1984), cert. denied, 475 U.S. 1010 (1986). Further, with the elimination of the conspiracy and 1st Amendment claims, the district court's failure to consider and afford the Oakland officers this right to rely upon law enforcement personnel - who clearly had more expertise in the *11 area of bombings and knowledge of the individuals and organization of which they self- proclaimed leaders - raises proper issues for appeal.

Appellants contend that all or some of the above facts are not material to a determination of whether qualified immunity exists and thus, the lower court erred in denying appellants' motion for summary judgment based upon qualified immunity. Moreover, appellants submit that this Court has jurisdiction to determine whether the lower court erred in not considering appellants' right to rely upon information provided to them by other law enforcement personnel, as a basis for probable cause or, at least, in the determination of whether the appellants are entitled to qualified immunity. Whiteley v. Warden, Wyoming State Penitentiary, supra. The lower court acknowledged defendants' right to rely upon others (E.R. at 53), yet disregarded it in considering whether the Oakland defendants were entitled to qualified immunity.

For the above stated reasons, appellants respectfully submit that this Court has jurisdiction to hear their appeal of the denial of their right to qualified immunity.

2. The Standard For Evaluating The Arrest Claim

The plaintiffs' claim arising from the Fourth Amendment is that there was not at least arguable probable cause for their arrest. While the arrest *12 was not pursuant to a warrant, and thus there is no affidavit to which reference can be made to determine whether or not probable cause appears on its face, still, if the arrest is supported by probable cause, the absence of warrant is not Constitutionally significant. Probable cause is determined by considering "the totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238 (1983). Where the "facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime" probable cause is present. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. denied 498 U.S. 825 (1990); quoted approvingly in MacKinney v. Nielsen, 69 F.3d 1002, 1005 (9th Cir. 1995).

As to the plaintiffs' arrests, the Court applied the basic legal standard that "[T]he qualified immunity standard requires a two-part inquiry: whether the law governing the defendant's conduct was clearly established and whether under that law, a reasonable officer could have believed that the conduct was lawful". Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1983) (E.R. at 36-37).

3. The Standard For Evaluating The Search Claim

Where a search is undertaken pursuant to a judicially-issued warrant, there will be no violation of the Fourth Amendment so long as the issuing *13 magistrate had a substantial basis for concluding that probable cause existed based on the totality of the circumstances. See, e.g., United States v. Bertrand, 926 F.2d 838, 841 (9th Cir. 1991); United States v. Mendonsa, 989 F.2d 366, 368 (9th Cir. 1993). The facts establishing probable cause must appear within the "four corners" of the affidavit. United States v. Holzman, 871 F.2d 1496, 1509 (9th Cir. 1989); United States v. Stanert, 762 F.2d 775, 778 (9th Cir. 1985), modified on other grounds, 769 F.2d 1410 (9th Cir. 1985). [n. 2]

n. 2. As the Supreme Court held, probable cause for a search is a commonsense, nontechnical conception. "[P]robable cause to search [exists] where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 116 S.Ct. 1657, 1661 (1996), quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949).

In Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995), this Court clarified the standard to be applied in ruling on motion which raises the question whether officers contravened the Fourth Amendment in their decision to seek a search warrant:

In sum, a plaintiff can only survive summary judgment on a defense claim of qualified immunity if the plaintiff can both establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant. Put another way, the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause. The showing necessary to get to a jury in a section 1983 action is the same as the showing necessary to get an evidentiary hearing under *14 Franks. See Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991).

With respect to the searches pursuant to warrants, the district court, in applying Hervey v. Estes, supra, found, "To survive summary judgment, a plaintiff must establish both: (1) a substantial showing of a deliberate falsehood or reckless disregard, and (2) that without the dishonest included or omitted information, the magistrate would not have issued the warrant." (E.R. at 43-44).

4. The Standard For Evaluating The Defendants' Immunity

As noted above, government officials performing their discretionary duties are entitled to qualified immunity unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir.1988), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, even if officers mistakenly believed that probable cause to arrest existed, they are nonetheless immune from suit if their mistake was reasonable, in light of clearly established law and the information the officers possessed at the time. Anderson v. Creighton, 483 U.S. 635, 641 (1987); Hunter v. Bryant, 112 S.Ct. 534 (1991).

In deciding the merits of a qualified immunity defense to "liability for Fourth Amendment violations, the district court must determine whether, in *15 light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful." See Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993), (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). "Probable cause [to arrest] existed if 'at the moment the arrest was made...the facts and circumstances within [the police officer's] knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing' that [the suspect] had violated [the law]." Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (citation and internal quotations omitted); Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects all but the plainly incompetent or those who knowingly violate the law); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir.1991) ("Even absent probable cause, qualified immunity is available if a reasonable police officer could have believed that his or her conduct was lawful.").

Applying these standards, the district court granted the Oakland defendants' motion for summary judgment in part and denied it in part. As relevant to this appeal, the district court made the specific rulings described above.

*16 INTRODUCTION AND SUMMARY OF ARGUMENT

A. The Supreme Court in Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568 (1971) acknowledged that police officers are entitled to rely on information obtained from another law enforcement official that seemed reasonable. Furthermore, in Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985), cert. denied 475 U.S. 1010 (1986), the Ninth Circuit recognized that the arresting officers were entitled to rely upon the warrant and its validity when they had consulted with an Assistant U.S. Attorney. See also Ortiz v. Van Auken, 887 F.2d 1366 (9th Cir. 1989); United States v. Smith, 503 F.2d 1037, 1040 (9th Cir. 1974), cert. denied, 95 S.Ct. 810 (1975).

Much of the information upon which the Oakland defendants relied upon in arresting the plaintiffs was provided to them by other sources - namely, the FBI regarding the location and components of the bomb, and Earth First's reputation; medical personnel describing the comments each plaintiff had made regarding the bombing and their being political activists with Earth First; Marr's and Kemnitzer's statements regarding Earth First's reputation for violence and property destruction or sabotage. As to the first search, the Oakland defendants relied upon the advice and counsel provided to them by high level Alameda County District attorneys, including the *17 present District Attorney who advised them that the search warrants met the requirements for probable cause.

The Oakland defendants were entitled to rely upon these other law enforcement personnel and sources in determining whether they had probable cause to arrest and/or to search. Whitely v. Warden, Wyo. State Penitentiary, supra. Thus, the district court erred in not granting summary judgment to the Oakland defendants.

B. The district court was incorrect in its finding of materiality as to certain disputed facts especially in light of its ruling that the Oakland defendants did not engage in any conspiracy or violate the plaintiffs' 1st Amendment rights.

ARGUMENT

I. THE DISTRICT COURT FAILED TO FULLY APPLY THE RULING IN WHITELY AND ITS PROGENY.

The Search Warrants

On May 25, 1990, at 2:21 a.m., the Municipal Court of the Oakland-Piedmont- Emeryville Judicial District issued a warrant for the search of Ms. Bari's home in Redwood Valley, California. The affidavit was prepared by Oakland defendant Sgt. Robert Chenault and contained information from various sources. (E.R. at 5). A second search warrant was issued by the same court on July 6, 1990. (E.R. at 14). The affidavit for the second search *18 warrant was prepared by Sgt. Michael Sitterud and included information from a federal special agent along with a copy of the first search warrant.

The warrant supporting the first search clearly sets forth facts which are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found: the bomb exploded within the passenger compartment of the car; it was apparently located under and to the rear of the driver's seat in a location in which it would have been visible to persons who were loading goods into the rear seat area of the car; the plaintiffs loaded their musical instruments into that area of the car immediately before beginning the journey that ended in the explosion; the plaintiffs themselves raised their connection with Earth First; the plaintiffs' associates reported that Earth First had a reputation, even among the activist community, for sabotage and property destruction; and the plaintiffs spontaneously identified the event that occurred to them as a bomb explosion -- hardly the first thing that would pop into the mind of someone injured in a car.

Furthermore, the information regarding the location of the bomb, the nails and the characterization of Earth First! was provided to Sgt. Chenault from other law enforcement officials who had expertise in bombing matters and had knowledge of the organization to which plaintiffs belonged.

*19 The district court acknowledged that most of the information received about the bomb and its components was provided to Sgt. Chenault from other sources. Specifically, the Court noted that SA Doyle told Chenault that he examined Bari's car at the scene of the explosion and observed components of a pipe bomb. (E.R. at 6) Doyle observed "numerous nails bound together by silver duct tape for shrapnel affect." (E.R. at 6) Doyle also told Chenault that "a separate bag of nails was discovered in the vehicle that are identical to the nails taped to the explosive device." (E.R. at 6). There was no dispute that this information was provided to Sgt. Chenault by SA Doyle at the time the warrant application was made.

As to the location of the bomb inside the car, the Court noted that Sgt. Chenault had reported that FBI agents at the scene of the explosion told him that "the bomb device was on the floor board behind the drivers [sic] seat when it detonated." (E.R. at 8). Doyle further advised Chenault that his conclusion regarding the device was based upon his observations of a large hole in the rear seat floorboard immediately behind the driver's seat and his observations of nails, duct tape and pipe bomb fragments in the roadway and the inside of the vehicle. (E.R. at 8).

Moreover, the warrant affidavit was thoroughly reviewed, modified and approved by Deputy District Attorney Sandra Quist and now-District *20 Attorney Thomas Orloff prior to the warrant being submitted to the Court. Mr. Orloff was personally satisfied that the warrant established probable cause for the search.

The central, indisputable, fact in this case is that each investigator who had been trained in bomb crime scene investigation, and who was present at the scene of the explosion, independently came to a single conclusion: the bomb protruded from beneath the driver's seat into the footwell between the front and back seats, and therefore should have been visible. (E.R. at 10).

Yet, the district court denied the Oakland defendants' motion for summary judgment even though the defendants had a plethora of information gathered from other reliable law enforcement personnel - personnel who were better trained in bombing matters than they were.

The Second Search Warrant

The district court similarly failed to apply Whitely in finding that the Oakland defendants were not entitled qualified immunity for their reliance on information provided by the federal authorities.

The Arrest Of The Plaintiffs

Evidence relevant to the decision to arrest the plaintiffs, whenever that decision was made, included the facts set out in the warrant application, *21 discussed in above, [n. 3] and certain additional facts which were not included in that application. Officers who searched plaintiff Cherney's van found duct tape, and a pipe nipple similar (at least in size) to the description of the pipe portion of the bomb in the plaintiffs' car, as well as electrical wiring materials. (E.R. at 4).

n. 3. To recapitulate, the facts available to the officers as set out in the search warrant application included the fact that the seat of the explosion was within the passenger compartment of the plaintiffs' car; that the bomb appeared to have located within the car so as to have been visible to the plaintiffs when they loaded the car that morning; that materials found in plaintiff Cherney's van might have been similar to those used in the construction of the bomb; and that the plaintiffs themselves injected, in their first responses to the medical personnel who arrived on the scene to transport them to the hospital, the assertion that they were political activists, and the bomb was connected to that activism.

Shannon Marr and David Kemnitzer told the Oakland officers that "Seeds of Peace," the organization with which Marr and Kemnitzer then were associated -- and from which plaintiffs were seeking support -- was concerned about Earth First's reputation for violence and property destruction. (E..R. at 11).

Taken together, these facts, which were available to the Oakland Police Department early in the afternoon of May 24, 1990, entitle the Oakland defendants to qualified immunity.

Plaintiffs argue that Earth First's reputation was not significant to Ms. Marr because Redwood Summer was to be strictly non-violent, in accord with Seeds of Peace's requirements. This, of course, is a non sequitur from *22 the perspective of the investigation of the explosion in the plaintiffs' car. That one of the programs with which the plaintiffs were involved was to be nonviolent does not in any way reduce the investigative significance of the reputation of the plaintiffs' principal association -- after all, it was the plaintiffs, at the very scene of the explosion, who told aid workers that they were associated with Earth First (not "Redwood Summer"), and raised the question of a political motivation for the bomb.

As to each of the searches and the plaintiffs' arrests, the district court failed to apply Whitely v. Warden, Wyoming State Penitentiary, supra, and similar 9th Circuit cases when analyzing whether the Oakland defendants were entitled to qualified immunity. See Ortiz v. Van Auken, supra, Guerra v. Sutton, 783 F.2d 1371 (9th Cir. 1986), Arnsberg v. United States, supra. It was not disputed that the federal authorities provided much of the basis for the search warrant affidavits. Moreover, it is not disputed that the District Attorney's Office reviewed the warrant application in the first search and found that probable cause existed. Accordingly, the Oakland defendants should be entitled to qualified immunity for reasonably relying on other law enforcement sources.

*23 II. THE DISTRICT COURT ERRED IN ITS FINDING OF MATERIALITY OF CERTAIN FACTS IN LIGHT OF ITS DECISION THAT THE OAKLAND DEFENDANTS DID NOT ENGAGE IN A CONSPIRACY OR VIOLATE PLAINTIFFS' 1st AMENDMENT RIGHTS.

The district court ruled that plaintiffs did not provide any evidence that the Oakland defendants harbored any animus towards plaintiffs because of their advocacy on environmental issues. (E.R. at 61). Similarly, the district court found no evidence that the Oakland Police had any pre-existing investigation of Earth First! or of the plaintiffs. There was no evidence that the Oakland defendants participated in a cover-up. Moreover, there was no evidence that the Oakland defendants' conduct was motivated by an intent to chill plaintiffs' speech. (E.R. at 61). The district court also found no evidence of any intent on the part of the Oakland defendants to chill plaintiffs' speech, or that there was any agreement or conspiracy by the Oakland defendants to chill plaintiffs' speech through their various acts. (E.R. AT 63-64).

These findings by the district court are relevant in that they cast doubt on the court's finding that certain disputed facts related to the Fourth Amendment issues, were material and that those material facts were sufficient to preclude a finding of qualified immunity in favor of the *24 Oakland defendants.

In its Order, as to the plaintiffs' arrests, the district court found that what SA Doyle, Sgts. Sitterud and Chenault and Lt. Sims knew with regard to the location of the bomb and the match of nails was material to the issue of probable cause to arrest Ms. Bari. (E.R. at 41).

Specifically, the Court referred to the following facts, among others, in its discussion prior to making the above generalized statement of materiality: (1) whether SA Doyle told Sgts. Sitterud and Chenault that his opinion was tentative and depended on seeing a comparison car and getting results from laboratory tests (E.R. at 38); (2) whether Sgts. Sitterud and Chenault believed that a bag of nails in Bari's car matched the nails taped to the bomb (E.R. at 38); (3) whether the defendants considered the possibility that the bomb may have been hidden under the driver's seat or under other items in the car (E.R. at 39); (4) whether, at the time of arrest, Sims, Sitterud or Chenault considered that it was unusual for a bomber to place a bomb in the passenger compartment of the intended victim's car rather than in the engine compartment (E.R. at 39-40); (5) whether defendants investigated the possibility that someone other than plaintiffs had access to Bari's car before the explosion (E.R. at 40); and (6) the extent of defendants' knowledge of Earth First!'s reputation before arresting Bari (E.R. at 40).

*25 As to the arrest of plaintiff Cherney which occurred the following morning, the lower court stated that there were material disputed facts as to what the Oakland defendants knew and what the federal defendants told them (E.R. at 42). The lower court found material that, although the officers found what they believed to be a "road spiking kit" in Cherney's van, the record did not show any physical evidence tying Cherney to the bomb in Bari's car (E.R. at 42).

With respect to the first search warrant, the Court found that there was a material question as to the following: (1) whether the affidavit accurately stated Defendants' collective knowledge of the evidence at the time the search warrant was sought. (E.R. at 48); (2) whether what the defendants knew about the size of the hole in the car precluded a determination of whether it was reasonable for SA Doyle to offer his opinion that the bomb was located behind the seat, as opposed to being at least partially under the seat. (E.R. at 46); (3) whether defendants recklessly or intentionally misrepresented the truth about the nails in the bags in Bari's car (E.R. at 47); (4) whether Chenault recklessly or intentionally misrepresented the interviews with witnesses Marr and Kemnitzer regarding Earth First!'s reputation for violence. (E.R. at 48); (5) whether defendant Reikes referred to Earth First! as a terrorist group (E.R. at 49); (6) whether defendant *26 Chenault made a false statement in his affidavit that Cherney stated someone "threw" a bomb at the vehicle (E.R. at 49).

As to the second search warrant, the Court found material the following facts: (1) whether defendant Sitterud recklessly or intentionally misrepresented SA Williams' ability to determine the size of the batch of nails (E.R. at 52); (2) whether defendant Sitterud was reckless or intentionally misrepresented information when incorporating the affidavit for the search warrant as an exhibit to the second search warrant without correction (E.R. at 52).

Appellants contend that all or some of the above facts are not material to a determination of whether qualified immunity exists and thus, the district court erred in denying appellants' motion for summary judgment based upon qualified immunity. The "material" facts cited by the district court were insufficient, as a matter of law, to sustain a finding that the Oakland defendants had any intent, or engaged in any conspiracy to violate the plaintiffs' 1st Amendment rights. Under Whitely, the Oakland defendants had the right to rely upon the "superior" knowledge of the federal law enforcement personnel. Therefore, the fact that the Court found later-acquired information disputed some of the evidence relied upon by the Oakland defendants is not material.

*27 Since those facts were insufficient as a matter of law to sustain a finding, it would stand to reason that they are not material to an objective reasonableness analysis such to preclude qualified immunity on plaintiffs' Fourth Amendment claims.

CONCLUSION

Based upon the foregoing, the Oakland defendants respectfully submit that the district court's order denying summary judgment in their favor be reversed and the case remanded for dismissal of the complaint against the Oakland defendants.