mendocinoenvironmentalcentervmendocinocounty192F3d1283pbrief

Appellate brief for plaintiffs 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,

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

No. 97-17375.

August 24, 1998.

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

Brief and Argument for Plaintiffs-Appellees

Dennis Cunningham, 3163 Mission Street, San Francisco, CA 94110, (415) 285- 8091.

Bill Simpich, 1763 Franklin Street, Oakland, CA 94612, (510) 444-0226.

Michael Deutsch, Center for Constitutional Rights, 666 Broadway, New York, NY 10012, (212) 614-6464.

*i TABLE OF CONTENTS

Table of Cases ... iii

ISSUES PRESENTED FOR REVIEW ... v

STATEMENT OF THE CASE ... 1

Introduction ... 1

The Plaintiffs' Lawsuit ... 3

Plaintiffs' Own Appeal From the District Court's Contradictory Ruling ... 5

STATEMENT OF FACTS ... 9

SUMMARY OF ARGUMENT ... 18

ARGUMENT ... 21

I. THE DISPUTED ISSUES IDENTIFIED BY THE COURT BELOW ARE "UNQUESTIONABLY MATERIAL" ... 21

II. NOTHING IN THE "FELLOW OFFICER" RULE---WHICH WAS EFFECTIVELY TAKEN INTO ACCOUNT BY THE DISTRICT COURT IN ANY CASE---ENTITLES APPELLANTS TO QUALIFIED IMMUNITY, UNDER WHITELEY V. WARDEN OR ANY OTHER PRECEDENT, AND THEIR PURPORTED "RIGHT TO RELY" ON THE FBI WAS CLEARLY SHOWN TO TURN ON FACTS, NOT LAW ... 32

A. The Existence of A 'Right To Rely' on Information from Other Officers Turns on the Facts Which Show Whether Such Asserted Reliance Was Reasonable. ... 34

*ii B. The Facts Regarding Appellants' Right to Rely on Information Supposedly Received from the FBI and Others Are Materially Disputed, to Say the Least. ... 36

III. THE DISTRICT COURT'S MANIFEST ERROR IN DISMISSING THESE APPELLANTS FROM THE FIRST AMENDMENT AND CONSPIRACY COUNTS HEREIN IS "INEXTRICABLY INTERTWINED" WITH ITS CLAIMED ERRORS IN ASSIGNING MATERIALITY AND APPLYING THE RIGHT TO RELY ON INFORMATION FROM OTHERS, AND SHOULD BE CORRECTED NOW, AT THIS MOST PROPITIOUS POINT IN THE LITIGATION, LEST IT COMPOUND ITSELF IN FUTURE PROCEEDINGS AND THEREBY CONFUSE THE ISSUES, INCREASE THE PREJUDICE TO PLAINTIFFS, AND DELAY AND DEFEAT JUSTICE IN A CASE OF "PARAMOUNT SIGNIFICANCE". ... 40

CONCLUSION ... 52

Prayer for Relief ... 56

CERTIFICATE OF SERVICE ... 57

STATEMENT OF RELATED CASE ... 58

CERTIFICATE OF COMPLIANCE ... 58

APPENDIX

First Search Warrant Affidavit ... A

Selected Photographs ... B

Deposition of Judi Bari (excerpts) ... C

Deposition of Lt. Clyde Michael Sims (excerpts) ... D

Deposition of Officer Kevin Griswold (excerpts) ... E

*iii TABLE OF CASES

Case

Adickes v. Kress, 398 U.S. 144, 158 (1970) ... 51

Apostol v. Gallion, 870 F.2d 1335, 1343-4 (7th Cir. 1989) ... 8

Armendariz v. Penman, 75 F3d 1311, 1317 (9th Cir. 1994) ... 43

Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) ... 37-38

Bari et al. v. Held et al., No. C-96-1074 ... 13

Barrett v. Unted States, 798 F.2d 565 (2nd Cir. 1986) ... 43

Behrens v. Pelletier, 516 U.S. 299 (1996) ... 21, 44

BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ... 37

Cohen v. Beneficial Industrial Loan. Corp., 347 U.S. 541 (1949) ... 21

Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1997) ... passim

DeVargas v. Mason & Hangar-Silas Mason Co., 844 F.2d 714, 719 (10th Cir. 1988) ... 8

Eastern States Retail Lumber Dealers Assn. v. United States, 234 U.S. 600, 612 (1913) ... 48

Florida v. Royer, 460 U.S. 491 (1983) ... 27

Frazier v. SEPTA, 785 F.2d 65, 67 (3rd Cir. 1986) ... 48

Gibson v. United States, 731 F.2d 1334 (9th Cir. 1986) ... 4

Gilbert v. Bagley, 492 F. Supp. 714, 727 (M.D.N.C. 1980) ... 48

Gonzalez v. City of Peoria, 722, 468, 477 (9th Cir. 1983) ... 26

Green v. Carlson, 826 F.2d 647, 650-52 (7th Cir. 1987) ... 8, 38

Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986) ... 37

Hafner v. Brown, 923 F.2d 570 (4th Cir. 1992) ... 48

Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983) ... 48

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979) ... 46-47, 51, 52

Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995) ... 26, 30

Hobson v. Wilson, 737 F.2d 1, 28 (D.C.Cir.1984) ... 25

Johnson v. Jones, 515 U.S. 304 (1995) ... 21, 36, 44

*iv Jones v. City of Chicago, 856 F2d 985, 992 (7th Cir. 1988) ... 49

Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) ... 28

Malley v. Briggs, 475 U.S. 335, 341 (1986) ... 46

Menocino Environmental Center. v. Mendocino County, 14 F.3d 457 (9th Cir. 1994) ... 4

Mitchell v. Forsyth, 472 U.S. 511 (1985) ... 21

Monroe v. Pape, 365 U.S. 167 (1961) ... 49

Primas v. City of Oklahoma City, 958 F.2d 1506 (10th Cir. 1992) ... 43

Roberts v. Heim, 670 F.Supp 1466, 1484 (N.D. Cal. 1987) ... 48

Samuels v. Meriwether, 94 F.3d 1163, 1166 (8th Cir. 1996) ... 43

Sevigny v. Dicksey, 846 F.2d 953, 957, n.5 (4th Cir. 1988) ... 37

Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995) ... 43

U.S. v. Baron, 860 F.2d 911, 914-5 (9th Cir. 1988) ... 27

U.S. v. Butler, 74 F.3d 916, 920 (9th Cir. 1996) ... 36

U.S. v. Delgadillo-Velasquez, 856 F2d 1292, 1295-6 (9th Cir. 1988) ... 26

U.S. v. Smith, 503 F.2d 1037 (9th Cir. 1974) ... 38

U.S. v. Webster, 750 F.2d 307, 323 (5th Cir. 1984) ... 34, 37

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971) ... passim

*v ISSUES PRESENTED FOR REVIEW

1. Whether the court erred, where it dismissed the conspiracy charge against appellants for lack of evidence, in designating various issues arising from the evidence as "material"?

2. Whether the court erred, where it dismissed the conspiracy charge against appellants for lack of evidence, in failing to award them qualified immunity on grounds that anything they did or believed with respect to probable cause or the search warrant affidavits that might have been unreasonable, and otherwise not immune, was based on information received from "other law enforcement officials" (including but not limited to the FBI) upon which, since, as a matter of law, they were not involved in a conspiracy, they had a "right to rely" under Whiteley v. Warden, Wyoming State Penitentiary?

3. Whether the court erred in dismissing the conspiracy charge for lack of evidence?

4. Whether the plain error asserted in dismissal of the conspiracy charge, where it was in fact well supported by the evidence against appellants, is "inextricably intertwined" with the merits of their own claim of error on the issues of materiality and the right to rely, to the point where it must or should be corrected in this appeal?

5. Whether the court's error in dismissing the conspiracy against appellants and the resulting gross prejudice to plaintiffs can be remedied in this proceeding, in the absence of a previously perfected cross-appeal, where plaintiff-appellees could not appreciate the intertwined character of the issues presented until appellants filed their opening brief, with its outlandish claims about the district court's Order, and the evidence---and were also very unwilling to be bled by all that extra work on what is clearly a frivolous appeal, that we fairly expected to be dismissed by motion, which we did work on too much as it was---by way of Rule 2, F.R.A.P., a writ of mandamus, a supervisory order, or some other ancillary or continued action from the conscience of the Court in the interest of justice?

*1 STATEMENT OF THE CASE

This case arose from the attempted murder by bombing of Judi Bari, a key political organizer for the pro-environment activist movement Earth First!, which appellants and the FBI seized upon as the occasion to perpetrate a great public smear of Earth First!, as part of a constitutionally perverse, secret campaign of unlawful disruption of activities protected by the First Amendment. The vehicle for the smear was a vile false pretense, cynically concocted by the defendants, that she who was manifestly the target of the bomb was instead knowingly transporting it. This fabrication was made the basis for a sensational false arrest of plaintiffs on bomb charges by these appellants, who were local detectives cooperating---and co-conspiring---with the San Francisco FBI "Terrorist Squad".

Judi Bari died in March 1997, at age 47, from breast cancer. The earlier attempt on her life was made with a sophisticated pipe bomb, placed in her car by persons still unknown, who were permitted to go scot-free by appellants and the other defendants herein and their responsible agencies. It exploded while she was driving with a colleague, co-plaintiff Darryl Cherney, in Oakland, on May 24, 1990. Cherney was shielded from the direct force of the blast and was only slightly injured. The Oakland Police and the FBI both responded to the scene, and promptly contrived a vicious, wholly spurious pretended theory that the bomb had *2 been located on the "rear seat floor board" of the car, that it must therefore have been in plain view, so the plaintiffs must have seen it, so it must have been theirs. In fact, the unmistakable physical evidence showed plainly that the bomb had been hidden under the driver's seat, meant to kill Judi Bari; that she escaped death then was just a fluke.

The plaintiffs were nevertheless immediately arrested by these appellants, members of the Oakland Police Department (OPD), who readily reached a 'meeting of the minds' with the FBI agents on their illicit designs against Earth First! despite the total lack of evidence tying either Judi or Darryl to the bomb--- and despite multiple strong indications that they were victims of a politically-motivated attempted murder. But defendants nevertheless publicly branded plaintiffs "the only suspects" in the bombing---repeatedly, for months. The arrest and attendant dramatic, made-for-TV searches of plaintiffs' homes later that night paid off in a fusillade of nasty headlines; Earth First! found itself and its upcoming "Redwood Summer" protest drive against logging of ancient redwood forests in California vilified in the media from coast to coast.

And appellants et al. kept the false case very publicly alive for many weeks, by various acts in furtherance of the conspiracy, including a second falsified- warrant search of Judi's home, a month after the first, conducted for *3 no other purpose than to revive the flagging headline assault. Finally, in mid- July, the Alameda County District Attorney's office conceded that appellants' (false) charges could not be sustained. Indeed, no charges were ever filed, and these appellants, having made no attempt at all to catch the real bombers, let the matter drop. But the FBI, despite the D.A.'s decision not to prosecute, went on for months and years to use it as a pretext for secret operations designed, in J. Edgar Hoover's infamous "COINTELPRO" formula, "to expose, disrupt, misdirect, discredit or otherwise neutralize" Earth First! All this was shown in the evidence presented to the court below. See Dkt #277, 278, 292, 303; 153, 154 et seq.; #186.

The Plaintiffs' Lawsuit

Plaintiffs' first filed their civil rights complaint against appellants and others in April, 1991, amended quickly to add then-identified FBI agents as defendants, and again a year later to focus on the political conspiracy to "neutralize" the plaintiffs' dissent, as part of the FBI's traditional devotion to illegal secret police operations designed for that purpose, and their predilection for involving local police to do the dirty work.

Motions to dismiss the amended complaint were denied as to appellants and the original FBI defendants in August, 1992. Those rulings, refusing qualified *4 immunity, were affirmed by this Court as to the FBI defendants in the first appeal herein, under the misnomer "Mendocino Environmental Center, et al. v. Mendocino County, et al.", No. 93-15144, 14 F.3d 457 (9th Cir. 1994). Citing Gibson v. United States, the Court recognized the validity of a claim against official action that, in seeking to chill and retaliate for free expression, "strikes at the heart of the First Amendment". 731 F.2d 1334, 1338 (9th Cir. 1986).

A restricted, still-contested course of discovery followed the first appeal, marked by defendants' efforts to cover-up the truth about their illicit campaign against plaintiffs with false testimony, stonewalling and double-talk in depositions; unfounded deletions, late disclosures and other manipulations of materials in FBI files; a still-burning controversy over fair disclosure of the documentary record of one purported informant and several other real and fake FBI "sources"; and a series of 16 key documents, evidently showing illicit operations against Earth First! prior to the bombing, which were simply "disappeared" from a file disclosed by court order. Discovery led to the addition of several more involved FBI Terrorist Squad members as defendants in 1996, with other matters left outstanding. In March 1997, to combat a strategy of dilatory, piecemeal summary judgment claims by defendants, plaintiffs filed a Motion for Certification that No Qualified Immunity Exists for Any Defendant *5 ("Motion"). Defendants made cross-motions for summary judgment on qualified immunity and evidence sufficiency claims, and these contentions led to the Order (found at "ER" p. 1-66) which Oakland defendants now appeal from.

Plaintiffs' Own Appeal from The District Court's Contradictory Ruling

Plaintiffs themselves complain strongly of several terribly misguided decisions in the district court's Order, and the seriously compromising effect of those rulings on plaintiffs' well-founded claims of aggravated official wrongdoing of the greatest constitutional magnitude and public importance. In particular, while the court below denied appellants' demand for qualified immunity on the Fourth Amendment claims---and, indeed, properly did not grant qualified immunity to any defendant on any count---it excused these appellants from the First Amendment claim outlined above. The court wrote, "Plaintiffs have not provided any evidence... that [appellants] harbored a similar animus [to that of the FBI defendants]," (ER. p61) and "[a]lthough the Oakland Police may have violated plaintiffs' Fourth Amendment rights by engaging in unlawful arrests and searches, there is no evidence that this conduct was motivated by an intent to chill Plaintiffs' speech." (ER. p61) Further, the court decided that, even though this Court earlier held that plaintiffs' allegations of conspiracy "sufficiently alleged a *6 meeting of the minds among Defendants to chill plaintiffs' right to engage in political advocacy," (ER. p63) and even though the evidence would support the First Amendment conspiracy charge against some defendant FBI agents, "[p]laintiffs have not provided any evidence...that the Oakland Police Department was part of this agreement." Id.

This and other reductive determinations in the Order have seriously prejudiced plaintiffs, and undercut their ability to prosecute the violations their evidence so powerfully shows. In addition to the decision to excuse appellants from the conspiracy, the court below exonerated the higher FBI chain of command responsible for supervising the operation against Earth First!---notably Richard W. Held, then Special Agent in Charge ("SAC") of the San Francisco FBI field office, who had a long, proven history of direct involvement in illicit FBI "counter-intelligence" campaigns against dissenters, beginning with the Black Panther Party in the 1960s. In both cases, the court's decisions reflect a palpable weighing of the evidence, and failure to apply salient rules of law pertaining to civil rights accountability, supervisory liability, conspiracy and causation. A further decision to bar the crucial Equal Protection claim has also prejudiced plaintiffs strongly, where the evidence shows overwhelmingly that these appellants and the FBI defendants, again acting jointly, and with obvious, raging bias against the *7 plaintiffs and their movement, knowingly gave aid and comfort---in the form of a complete free pass---to those responsible for the cold-blooded, highly calculated attempt to silence Judi Bari with an outrageous political murder. Through this courtesy these assassins are still at large.

The other rulings have their own future, but, as we will show, plaintiffs are entitled here to relief from the decision to drop the First Amendment and conspiracy claims against these appellants, on grounds that the same are "inextricably intertwined" with the merits of the purportedly "abstract legal" qualified immunity claims presented in this appeal. Appellants base both their claims on the conspiracy ruling. They argue that, since the district court held that the "material" facts (shown by the disputed issues) "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 plaintiffs' 1st Amendment rights," (AOB p26) they had a right to rely on what the FBI told them, and therefore they reasonably could have believed they had probable cause at the time of arrest, and in the warrant affidavit. (AOB p10-11, 26-27) Likewise, they insist that, "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." (AOB p17, 23, 26)

*8 Based on the contradiction in the district court's ruling, they have a point. It's fallacious, because the evidence that all defendants plotted to defame the plaintiffs with a false arrest is overwhelming. But the determination by the court below is fallacious also, and needs correction here, where it is unavoidably at issue and subject to pendent appellate jurisdiction. As a matter of judicial economy, as well as fairness, justice and the need to avoid facilitating the official cover-up, the Court can act under Rule 2, F.R.A.P., to accommodate this claim; the rightness of doing so will be shown. In the circumstances, where plaintiffs seek review of the "inextricably intertwined" sufficiency determination by the district court with respect to the conspiracy evidence, all the evidence is available to prove our point. "Because qualified immunity turns on the defendants' actual conduct, the district court should examine all the evidence available to it in determining what that conduct was." Green v. Carlson, 826 F.2d 647, 650-52 (7th Cir. 1987). See also, Apostol v. Gallion, 870 F.2d 1335, 1343-4 (7th Cir. 1989); DeVargas v. Mason & Hangar-Silas Mason Co., 844 F.2d 714, 719 (10th Cir. 1988). The first warrant affidavit, several pictures, and certain testimony not in the instant district court pleadings are included as an Appendix in this volume.

*9 STATEMENT OF FACTS

Judi Bari was a talented and highly effective organizer and spokeswoman for Earth First!, and a serious thorn in the side of the timber industry in Mendocino and Humboldt Counties since becoming involved in the environmental cause in 1986-87. She had led a series of increasingly visible public demonstrations against ruinous clear-cutting of vast woodland tracts, and slaughter of the last 'old growth' stands of ancient redwoods, in the north coast region. She had persuaded the movement it also had to reach out to the loggers and mill workers whose jobs were beginning to disappear, as the timber moguls---mad for cash flow to appease stockholders and pay off junk bonds---had begun in earnest to liquidate the remaining forest in the two counties, and the 'forest products' industry there, and its jobs, along with it. (Motion, p7; Judi depo, p29, 34, 42-45, 57, 65-66, 80-81, 91, 226, 261) Darryl's song, "Where are we gonna work when the trees are gone?" was gaining a wider and wider audience.

Judi and others had conceived of Redwood Summer as a stepped-up campaign of non-violent direct action by Earth First!, meant to draw national attention to the destruction of California forests, for the sake of corporate super-profits, by bringing students and people of conscience from around the country *10 for a protest that would continue through June, July and August, 1990. (Motion, p7-8; Judi depo, p28-29, 63; Ex. 11-b, p2; Ex. 20; Ex. 43-a, p2, 4) Her outspoken leadership of this increasingly contentious movement brought on numerous frightening threats, including death threats (Motion, p7-9; Ex. 2-a-h; Judi, p65-68, 86-87, 89, 129-138; Ex 43-a, p7-10); the most recent had been taped to the door of the Mendocino Environmental Center, on April 13, 1990, consisting of a xeroxed news photo of Judi playing the violin at a rally, with rifle scope cross-hairs drawn across her face. (Motion, p8; Ex. 2-b; Judi depo, p69, 77-79, 87) She had begun keeping track of the threats, and had gone to the Mendo County Sheriff's Dept. about the gunsight picture, but had been rebuffed. "If you turn up dead," Sgt Steve Satterwhite told her, "Then we'll investigate." (Motion, p8; Judi depo, p69) Judi and Darryl each had a set of copies of the threats with them in the car when the bomb exploded. (Motion, p9; Ex. 2-a-h; Ex. 3-a-c; Ex. 43-a, p7-10; Ex. 44)

The bombing occurred minutes before noon on May 24, 1990, shortly after the two drove away from a house in Oakland where Judi spent the night, after a day- long organizing meeting in Berkeley on May 23. Judi was driving, following another car driven by a young associate, Shannon Marr, who was leading the way back to the Berkeley house. (Motion, Ex. 9) The bomb blast drove pieces of shrapnel and car seat up into Judi's body, tearing up her pelvis and innards, and *11 left her substantially crippled and constantly in pain for the rest of her life. (Motion, p9) She awoke in the hospital after emergency surgery to find herself under guard, falsely accused as a terrorist, and apparently facing a long prison term. (Sims depo, p300-05) Appellants went to court after announcing her arrest that evening, to get her bail increased; they told the judge that, "The release of susp[ect] Bari at this time would create a very dangerous situation for the general public." (Motion, p10; Ex.5, Ex. 20)

As outlined in plaintiffs' Motion, the facts show clearly that defendants conspired to fabricate the purported grounds for the arrest of plaintiffs, and made several false statements in the search warrant applications which were crucial to the purported showing of probable cause. (Motion, p10-15, 20-21, 30- 31; Reply, p8-31) Defendants falsely swore that the bomb exploded on the "rear seat floorboard" (Motion, p11; Ex.7; Reply, p9-10), but the evidence showed it was hidden under the seat of the car, wrapped in a blue towel and further blocked from view by a bag of trash. (Ex.8-b, p1) The front of the back seat, and a guitar case stowed behind the driver's seat, showed plainly that the bomb had not exploded on the "rear seat floorboard", as stated in the false affidavit (Exhibit A, this volume). (Motion, p10-13; Reply, p9-11) Appellant Sims testified that he looked inside the *12 car and saw the hole in the driver's seat, through to the pavement underneath. (Motion, p11; Ex. 34c, Sims depo, p362)

These matters were manifest at the bomb scene, and would have been acknowledged by investigators acting in good faith, save for prompting by the FBI "Terrorist Squad". The Squad chief, Reikes, conducted a "briefing" at OPD headquarters that evening, (Motion, p 15, Ex. 13) where he assured assembled officers and agents that plaintiffs "qualified as terrorists", and were "the type of individuals who would be involved in transporting explosives; bombs." (Motion, p14) He said they had been identified as participants in the downing of electric power lines in Santa Cruz County a month earlier, and were part of an Earth First! conspiracy to attack nuclear facilities in California. He was not asked, as far as the evidence shows, why the FBI had not arrested such desperadoes for such crimes, or why, as the terrorist squad, they weren't arresting them now.

Evidence not mentioned in the Motion but known to the trial court shows that Oakland had its own political "intelligence" operation going on prior to the bombing, in which, according to the officer assigned, Kevin Griswold, they maintained files on some 300 organizations, including Earth First! and other pro-environment groups. Griswold at depo testified the Oakland intelligence division he was part of regularly cooperated with the FBI, and traded information with *13 them, and had been involved (along with the FBI) in the case of a group of Earth First!ers who were arrested a month before the bombing for climbing the Golden Gate Bridge and trying to hang a banner that said, "Save This Planet!" (Griswold depo, p11-15, 21-22, 26, 28, 33, 36-37, 43-46, 51, 53-55, 117-118)

Later in the evening, when the warrant affidavit was being prepared, Sena told appellants, falsely, that the FBI had an informant, "close to the leadership of Earth First!", who had given him a tip that "heavy hitters" from Earth First! would be involved in "an action" or "an action involving a bomb". (Motion, p20, 38) Like the other purported terrorism information about plaintiffs, this was made up of whole cloth by the FBI defendants, to help appellants rationalize the arrest of plaintiffs. Trying to lend an assist, Oakland Officer Griswold testified that he had prior knowledge of this purported tip, vouchsafed by SA Sena that day or some prior day, but he was tripped up when had to admit he didn't discuss it with his fellows, appellant investigators, or make any written record of it [n. 1] (Griswold, p56, 61-66, 78-79, 81-84.)

n. 1. The court below knew this evidence from plaintiffs' 1995 attempt to amend the complaint with allegations about the cover-up, which was denied (Dkt 185, 192); and a separate complaint, Bari, et al. v. Held, et al., No. C-96-1074, which the court dismissed. The court repeatedly refused to order disclosure of the informant information, despite testimony that it influenced appellants' decision to arrest and despite the (false) averment in the warrant that plaintiffs were involved in "making and planting explosive devices".

*14 3.

The FBI's own crime lab expert, David R. Williams, confirmed that the pipe containing the powder charge was rigged crosswise under the seat, as reliably told from "impact points" made by the end caps when they blew off. (Motion, p11; Ex.34e, p172) He noted also the presence of a "motion device", which, after priming with a time-delay mechanism, would detonate the bomb in response to movement of the car, (Reply, p13 n6, 27; Ex.38, p101-04, 110) and stated his belief that the bomb had "functioned as designed". (Ex.38, p125, 124-131) Pictures taken during a visit to Oakland showed him holding a mock-up in the place where the real bomb had been, and a bulge in the frame of the car at that spot obviously indicates the location, even to a lay person. (See Appendix.)

Moreover, Williams made it clear that, aside from one wholly problematic item, there was no evidence whatsoever, at any time---from the houses, cars, backpacks, friends, tests or witnesses---connecting plaintiffs to the bomb; his June 14 report confirmed it. (Ex.24) But on July 6, these Oakland appellants held a press conference in which they (falsely) claimed they now had evidence to support *15 the charges (Motion, p31; Ex.29; Reply, p27-28); this derived from outright fabrication. (Motion, p22-23)

This particular fabrication by appellants, actually a series of related fabrications, began with the utterly false claim in the first warrant affidavit, that, where the bomb had nails taped to the exploding pipe "for shrapnel effect", a "separate bag of identical nails" had been found in the car. The supposed match of nails, together with the pretense that the bomb had been in plain view in back of the driver's seat, formed the main grounds recited in Sgt. Chenault's warrant affidavit. There was no such match. There were nails taped to the bomb, finishing nails, and actually two bags of nails in the car, but one bag held roofing nails and the other framing nails; both have sizable flat heads, whereas finishing nails have tiny, rounded heads. (See pictures, appendix.) Thus the nails in the bag were not even similar, but the Magistrate didn't know this. (Motion, p13-14; Ex.8-a-b; 33-c, p2; Reply, p12; 22-26)

Then, appellants found finishing nails in Judi's house, whereupon they forgot about the bags which, according to the records, were not even sent to the lab. (Motion, p13, Reply, p28) With nails from Judi's house, the lab man made what he said was his first ever attempt to match nails---by the alleged presence of microscopic "manufacturer's tool marks" on them, (Ex.25-a, 212-236, 213) which *16 he said could be compared like fingerprints. (Ex. 25-a, p228; Ex. 29) He said two nails from the house were "fabricated on the same machine" as nails taped to the bomb, and made in the "same batch". (Ex. 25-a, p222, 223, 226, 236) He had no information about batch size, however, so the value of the alleged match was problematic from the start. (Reply, p27-31; Ex. 24; Ex. 29) But that didn't stop appellants from trumpeting the supposedly guilty match in the press, as justification for their continuing prosecution of plaintiffs as "the only suspects" in the bombing. (Ex. 8-a; Ex. 20)

Nor did it stop appellant Sitterud from swearing in the second warrant affidavit, a month after the bombing, that Williams said the nails matched within a batch of 200 to 1000, and adding this to the original affidavit to justify a new search---which won a new round of defamatory headlines. (Motion, p30-31; Ex. 28; Ex. 29) This occurred just as the FBI finally learned, according to its records, that nails are made in batches of millions, and shipped in fifty-pound cases to more than 250 outlets in northern California alone. (Motion, p.30, Ex.25) So the second purported match of nails, shaky as it was, and undocumented, had no evidentiary value in any case. And Agent Williams testified he never said any such thing about such a tiny batch size, and wouldn't have, because he didn't know. (Reply, p26-31)

*17 Thus the matching nails lie permeated the entire malicious enterprise of public frame-up---from the arrest on May 24, through the report back from the lab on and before June 14, to the second search on June 28, the press conference renewing the matching nails claim on July 6, to July 17, when prosecutors finally announced there was no case.

While generating these and other lies, misrepresentations and distortions to justify their persecution of plaintiffs, appellants completely ignored the wealth of information before them which supported immediate, vociferous assertions by plaintiffs and many supporters that they had been attacked by people who had been mortally threatening and menacing them for months. They had copies of the threats right with them, and appellants et al. ignored these too. (Motion, p9; Ex. 3c; Ex. 43-a, p10; Ex. 44; Judi, p133; Reply, p15-16; Ex. 39, Marr, p43-48; Ex. 40, Kemnitzer, p37-39).

The court found the evidence sufficient to overcome the demand for qualified immunity as to plaintiffs' false arrest charges against appellants and two FBI agents. (ER. p38-42) It sustained the false affidavit charges against appellants and two of three agents involved in concocting the first search warrant, (ER. p44-52) and appellants themselves on the second warrant. (ER. p52-53). It *18 held six FBI Terrorist Squad agents on the charge of First Amendment violations and the conspiracy to commit them---while exonerating their involved supervisors, as noted, also for supposed lack of evidence. (ER. p60-64) [n. 2]

n. 2. In dismissing SAC Held, the court also ignored plaintiffs' explicit reservation under R.56(f), F.R.Civ P. regarding evidence of his known past involvement in kindred illegal FBI "counterintelligence" operations against dissenters throughout a long, nefarious career, relevant under F.R.Civ P. 404(b).

SUMMARY OF ARGUMENT

Notwithstanding the rule against review of the district court's "evidence sufficiency determination" in a qualified immunity appeal, some survey of the evidence is needed to review appellants' claim that "all or some" of their list of "disputed facts" are not "material", under Collins v. Jordan, as to whether these defendants could have believed they had probable cause, or whether they should get immunity. While appellants' list of such issues is faulty and self-serving, the issues identified by the district court readily will be understood as material when the evidence is looked at--- "unquestionably" so. Such survey will also reveal that the evidence "unquestionably" shows a conspiracy involving these appellants, as plaintiffs have alleged it. Thus plaintiffs, would-be cross-appellants, assert errors by the court below in weighing the evidence rather than giving it its fair best light, thereby unfairly robbing plaintiffs of much of the substance of their misconduct *19 claim. The district court's evaluation is challenged by appellants, and so must be assessed by this Court, willy-nilly; it will find errors directed only at plaintiffs, and 'inextricable' from the problems they enable the defendants to trump up in this appeal. If this is 'cumbersome' it is still necessary and right.

We therefore take the occasion to expatiate on these defendant detectives' role in the action against plaintiffs, the legitimate inferences from appellants' words and actions in relation to those of the FBI, and the physical evidence, to show how the district court weighed evidence, and withheld the best light. Appellants' two claims, that the genuine disputes aren't "material", and that any actionable wrongs against plaintiffs grew out of justified reliance on "information from other law enforcement personnel", are based on the ruling that there was no evidence of "intent or conspiracy to violate plaintiffs' 1st Amendment rights."

The materiality of the issues touched upon in the trial court's determinations, and in appellants' list of disputed issues they say are not material, will be made plain, and the "right to rely" issue couldn't be more ironically inextricable from the question of whether these appellant officers joined in a conspiracy to carry out a public frame-up, and give a pass to would-be killers. If *20 there is a "right to rely" enjoyed by officers "in some degree of communication" on a case, applying to the substance of the communication, it certainly depends on reasonableness, and on particular facts; that is elementary.

Such a discussion of the evidence will show material disputes regarding probable cause, 'arguable' probable cause, and deception in the affidavit, and that qualified immunity is barred by those disputes. It will also be clear that the "right to rely" claim only raises issues of fact, obviously material, also barring immunity. But all the real issues of fact will be seen, like the evidence itself, to tie into plaintiffs' charge of conspiracy against these Oakland officers, and liability for violations arising from it.

Civil Rights jurisdiction is remedial; immunity is for weeding out frivolous claims, procedure is malleable, misconduct of this dimension is deplorable, and urgent. We pray the Court will see and respond to the need to provide guidance to the district court in this difficult and important case.

*21 ARGUMENT

I. THE DISPUTED ISSUES IDENTIFIED BY THE COURT BELOW ARE "UNQUESTIONABLY

MATERIAL"

Immediate appeal from an Order denying qualified immunity is permitted only with respect to "abstract questions of law" which might otherwise escape review. Behrens v. Pelletier; Johnson v. Jones; Mitchell v. Forsyth; (Cohen v. Beneficial Industrial Loan Corp.) [n. 3] While the rule bars review of the district court's determination that plaintiffs' evidence is sufficient to raise genuine issues of fact regarding the conduct for which immunity is asserted, this Court held in Collins v. Jordan that there is jurisdiction, nevertheless, to consider claims of error in the court's designation of particular disputed issues as "material" to the immunity claim. 110 F.3d 1363 (9th Cir. 1997). In Collins, the Court disposed of the problem summarily, by finding generally that the issues identified by the district court were "unquestionably material". Id. at 1370.

n. 3. Respectively, 516 U.S. 299 (1996); 515 U.S. 304 (1995); 472 U.S. 511 (1985); 347 U.S. 541 (1949).

Here, plaintiff-appellees have urged summary dismissal of this appeal for the same reason, where it is manifest from the Order that the disputed issues the lower court identified are also unquestionably material. Appellants have listed *22 sixteen "facts" taken from the court's text; they "contend that some or all of [these] facts are not material to a determination of whether qualified immunity exists." (AOB p26) However, they have failed to explain why any of them are not material---other than that they couldn't be material if there was no conspiracy. In fact, only some of appellants' points were actually designated as material; the rest reflect claims they made about the evidence--- portrayed in their own best light, of course---which were rejected by the court.

As to the arrests, appellants list eight points: (#s 1-6) about Judi (AOB p4- 5, 24-25) and two more about Darryl. [n. 4] As to Judi, the court specifically found that "the disputed facts regarding what SA Doyle, Sgts. Sitterud and Chenault and Lt. Sims knew with regard to the location of the bomb and the match of the nails are material to determining whether Defendants Sitterud, Chenault and Sims rushed without probable cause to their judgment that Ms. Bari was a perpetrator rather than a victim and whether SA Doyle contributed misleading information to the Oakland defendants." (ER. p41:8-15)

n. 4. The points about Darryl are un-numbered in Appellants' brief, and later points have a different set of numbers, so we have numbered them all sequentially, continuing from the first six.

The first three points at least reflect real issues arising from the evidence: Did Doyle say his opinion was tentative? (ER. p38:16-21); did Chenault and *23 Sitterud believe there were matching nails? (ER. p38:21-23); and, did defendants consider the possibility that the bomb was hidden? (ER. p39:6-8) These issues are unquestionably material to the reasonableness of appellants' purported belief that plaintiff-appellees were knowingly transporting the bomb. Appellants insist they reasonably believed the bomb sat behind the driver's seat---where plaintiffs supposedly would have seen it when they loaded their car---and that nails affixed to the bomb were "identical" to nails found in a bag in Bari's car. (ER. p38-39) Where plaintiffs' evidence shows appellants' purported beliefs about the nails and the location of the bomb were not reasonable, "arguable" probable cause for the arrests is nugatory. Likewise, it would have been unreasonable for appellants to rely on the opinion of SA Doyle as to the location of the bomb, while discounting his alleged "caveat" that his opinion was tentative. [n. 5] Since these issues affect the outcome of the false arrest claim, and the qualified immunity question of whether *24 appellants could reasonably have believed they had probable cause, they are (unquestionably) material.

n. 5. To keep the "facts" straight, the evidence in plaintiffs' best light shows plainly there was no "caveat" made by Doyle to his co-conspirators on that day or night; rather, the caveat was made up, much later, as part of the cover-up, when Doyle was deposed. This is shown most clearly by Doyle's own testimony that he was present while the affidavit was drafted, and was asked to check it, and make corrections, and did so. (ER. p9) Chenault testified that Doyle stood over him and "almost dictated" what the affidavit said.

Appellants' next three points, in contrast, are non-issues, reflecting questions the court found were not material, or not raised, deriving from passages where it rejects appellants' arguments. Thus appellants go on to ask (#4) whether they thought it unusual (and therefore suspicious against plaintiffs) that the bomb was inside the car and not under the hood. (AOB p4-5, 24); but the court found there was no evidence they considered that issue. (ER. p39:21-26) Regarding point (#5)---"whether Appellants investigated the possibility that someone besides plaintiffs had access to the car before the explosion" (AOB 5)---the court also found there was no evidence of any such investigation. Point (#6)---what appellants knew about Earth First! when they arrested Judi---is a non-issue to the court, because whatever they knew or pretended to know about Earth First!---which is certainly disputed--- obviously would not be evidence showing whether or not Judi was carrying a bomb. [n. 6] So nor can this point be assigned as an issue the court below erroneously--- appealably--- designated as material.

n. 6. As the District Court pointed out, the mere fact that plaintiffs were members of a group that was rumored to be violent would not constitute probable cause for arrest. (ER. p40) See Hobson v. Wilson, 737 F.2d 1,28 (D.C.Cir.1984) (government may not punish mere membership in an organization). Thus, while the purported information about Earth First!--- along with the fact that plaintiffs were associated with Earth First!, which appellants purport to find significant---was not material to their purported belief in plaintiffs' guilt, their falsification of the information in the warrant affidavit certainly is material to whether they conspired to carry out, and justify, a flagrant false arrest. (ER. p42)

*25 The two points pertaining to Darryl's arrest are also false issues. The first (#7 overall) is the court's statement that there are disputed facts as to "what the Oakland defendants knew and what the federal defendants told them" in connection with the arrest of Darryl. (ER. p42:2-4) Listing this statement is also misleading, since it actually only introduces a set of issues the court intends to discuss at a later point; thus, this "fact" (#7) is not really a dispute designated as material and thus is not subject to review. As (#8), appellants add that, "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 Mr. Cherney to the bomb in Ms. Bari's car." (AOB p25) (appellants' italics) This is not a wrongly- designated material issue, but rather a low, purposefully prejudicial, propagandistic statement to this Court about supposed road-spiking, which never took place.

*26 The court's postponed discussion of what Oakland knew and what the FBI had told them by the time Sitterud wrote up Darryl's arrest in the wee hours, [n. 7] occurs in its review of what defendants cooked up for the warrant affidavit; that discussion (ER. p44-49) yields the double holding that plaintiffs have made a "substantial showing" (per Hervey v. Estes) of "Deliberate Falsehood or Reckless Disregard for the Truth" ER. p44:23-24, and that "Without the False Information the Magistrate Would Not Have Issued the Warrant." (ER. p49:14) The court shows how the evidence creates disputes about appellants' intent to deceive the issuing magistrate with respect to the affidavit particulars challenged by plaintiffs, and about how and why each of those particulars are material to probable cause as there set forth. These particulars are the grounds given by appellants for the arrests---which they now say are not material!

n. 7. Darryl was actually under arrest---not free to leave---when appellants had him taken from the hospital to police headquarters in mid- afternoon. U.S. v. Delgadillo-Velasquez, 856 F.2d 1292, 1295-6 (9th Cir. 1988); Gonzalez v. City of Peoria, 722, 468, 477 (9th Cir. 1983); U.S. v. Baron, 860 F2d 911, 914-5 (9th Cir. 1988); Florida v. Royer, 460 U.S. 491 (1983).

The court's discussion of the "substantial showing" is broken down according to the elements of deception in the affidavit: Doyle's statements about the bomb, (ER. p44:25-46:16); his statements about identical nails, (ER. p46:17- 47:11); the alleged (and falsified) reputation of Earth First! for violence *27 (ER. p47:12-49:3); and Darryl's alleged statement that someone threw a bomb. (ER. p49:4-13). However, appellants' first listed issue here (#9) is the court's general finding that, "[T]here is a material question as to whether the affidavit accurately states Defendants' collective knowledge of the evidence at the time [it was sworn to]" (ER. p46:5-8) The court goes on to hold that Doyle's reasonableness in supposedly "offer[ing] his opinion that the bomb was located behind the seat" cannot be determined (by the court, as a matter of law, supporting immunity), because of "the question of what Defendants knew about the size of the hole..." (ER. p46:8-11) Defendants cite that as their second (non-)material issue (#10). At the bottom of that paragraph, however (ER. p46:14-16), the court says defendants' affidavit "statements about the damage to Ms Bari's car and the location of the bomb raise a material question of fact as to whether defendants recklessly disregarded the truth of the affidavit." Since appellants do not include this statement in their list, they apparently concede it is properly designated by the Court as material, and that omission appears to vitiate their claim on appeal as to materiality vel non, at least as to the warrant(s).

*28 The next two points are certainly material to "the truth of the affidavit": (#11), whether appellants made a false statement about the nails (ER. p47:9-11), and (#12), whether they misrepresented the Marr-Kemnitzer interviews (ER. p48:13-15). The court cites Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) about deception caused by telling less than the whole story in a warrant affidavit. (ER. p48) It goes on to discuss affiant's statement that he believed plaintiffs were part of a terrorist group, and relates this to the conflicting testimony about what the FBI terrorist squad chief, Reikes, told appellants about plaintiffs and Earth First! being terrorists. The court also mentions the bogus "heavy hitters" informant's tip conveyed to appellants by SA Sena, but appellants do not mention it. Id.

Appellants' next point (#13) is "whether defendant Reikes [the FBI Terrorist Squad chief] referred to Earth First! as a terrorist group." (AOB p6, 25; ER. p48:16-49:3) There is a conflict in that evidence, to be sure. Reikes denies he said those things, but appellant officers each testified he did say them, their colleagues' notes from the briefing showed he said them, and the late-disclosed passages from the FBI's earliest bombing case documents indicate that they were (falsely) referring to plaintiffs as terrorist suspects at the time the case arose. Why appellants would cite what Reikes told them as a non-material issue, when they *29 make so much of the specific claim on appeal that they were erroneously denied their right to rely on information from the FBI, rather beggars imagination. Can we take it that they don't assert reliance on Reikes' information that plaintiffs were terrorists?

Appellants' next point---also a reliance issue---the court below appears simply to get wrong, at least in part: (#14) whether Chenault made a false statement about "Cherney's comment" (that someone "threw" a bomb). (ER. p.49; AOB p26) The comment itself, Chenault said, was reported to him by a paramedic. As such, it would not be wrong for Chenault to take such a report as true, for what it was worth. Even though Cherney denies making the statement (Declaration, Ex. 44), this doesn't contradict Chenault, only the paramedic; so the evidence doesn't show that Chenault falsified the statement. What it does show, however, as the court notes further on, is that Chenault improperly used the statement, in aid of appellants' larger attempt to deceive the magistrate, by pretending it had guilty meaning because it supposedly conflicted with the evidence. In fact, it had no meaning at all. (ER. p50:4-17) [n. 8]

n. 8. There are two more items on the list, pertaining to the second search warrant affidavit, by Appellant Sitterud: (#15) whether he lied about the size of a batch of nails as told to him by the lab man, and (#16) whether he intended to deceive when he put the first affidavit into the second, a month later, when the lack of any evidence against plaintiffs was undeniable. Appellants don't misrepresent these claims; rather, they're simply wrong to say they aren't material; these facts are unquestionably material to the issue of deception in the second warrant affidavit, and whether the appellant detectives reasonably could have believed they could lawfully include those items in the affidavit, or that they had authority to search Judi's house a second time based on them.

*30 Whatever form they take, every search warrant issue cited by appellants is unquestionably material to the basic immunity issue, and the Order makes this clear. A police officer acts unreasonably if he makes statements in a search warrant affidavit that "'he knew to be false or would have known were false had he not recklessly disregarded the truth, and no accurate information sufficient to constitute probable cause attended the false statements."' ER. p43, citing Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995). The accuracy of the search warrant affidavit---or, more precisely, the possibility that crucial facts set forth in it were deliberately (conspiratorially) fabricated by defendants---is obviously material.

As to the hole in particular, the issue cited by the court below was whether it was reasonable for SA Doyle to "offer his opinion" as to the location of the bomb, given that others observed that the hole "was at least partially under" the seat. (ER. p46) In fact, as noted, anyone could see the hole went all the way to the front of the car, by the foot pedals, and straight up through the driver's seat; so anyone without a motive not to see, would have known the bomb was not in plain view in *31 the back. Further, the court says that the material dispute about what was known about the size of the hole "precludes determination" by the court that it was reasonable (as a matter of law) for Doyle to "offer his opinion" that the bomb was behind the seat. (ER p. 46:8) That is, the reasonableness of Doyle supposedly "offer[ing] his opinion" that the bomb was in back is placed in dispute by this evidence, showing it was hidden underneath the seat.

Similarly, Chenault's affidavit states that SA Doyle told him that a bag of nails "identical" to nails taped to the bomb was found in Bari's car. Plaintiffs produced evidence showing that the nails were not even similar. (ER. p46-47) Therefore, the district court found there was a question of fact as to whether defendants misrepresented the truth about the nails in the affidavit. (ER. p47) The affidavit states that Shannon Marr and David Kemnitzer told Chenault that Earth First! had a reputation for violence. Plaintiffs produced evidence that Marr and Kemnitzer told Chenault they knew Earth First! and plaintiffs were strictly non-violent. (ER. p11-12) Therefore, the district court found there was a question of fact as to whether Chenault misrepresented these interviews in his sworn affidavit. (ER. p47-48)

Each of the search warrant issues obviously goes to the question of whether Chenault, with the collusion of his fellow appellants, et al., deliberately included *32 false information in the affidavit for the purpose of deceiving the issuing magistrate. Appellants' challenged "facts" are no more than paraphrased restatements of those very falsehoods. To suggest they are not material is like suggesting that a defendant's confession is not material to the issue of whether she committed the crime.

One issue appellants do not suggest is not material is whether they had a right to rely on information they supposedly received from other law enforcement types in making their decision to arrest and search plaintiffs. Instead, they assert that the district court erred, legally and appealably, "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)." (AOB p9) As with the materiality issue, this purported legal claim is given color, if not substance, by the district *33 court's truly erroneous holding, that the evidence does not show appellants were involved in a conspiracy with the FBI.

Thus appellants assert, with at least a semblance of logic, that, "with the elimination of the conspiracy and 1st Amendment claims, the district court's failure to consider and afford the Oakland defendants this right to rely upon law enforcement personnel - who clearly had more expertise in the area of bombings and knowledge of the individuals and organization of which they [sic] self-proclaimed leaders - raises proper issues for appeal." (AOB p10-11) Later they expand their field of claimed legitimate reliance to the paramedics, and even the associates of plaintiffs, Marr and Kemnitzer, whose information they falsified in the affidavit. (AOB p16-17)

As with the materiality claim, this is a transparent attempt to dress up a factual issue in legal clothes. Moreover, the purported legal argument is based on a broad overstatement of the fellow officer rule, which obviously does not shield police who purport to rely on information which is palpably inaccurate---let alone fabricated, in cahoots with the officers supposedly relied on (i.e, conspired with)---or which is simply misrepresented. Nothing of the sort is permitted by the fellow officer rule, or Whiteley.

*34 A. The Existence of a 'Right To Rely' on Information from Other Officers Turns on the Facts Which Show Whether Such Asserted Reliance Was Reasonable.

It is obvious that, "Government may not bootstrap probable cause from [the] innocent act of [a] police officer following instructions to arrest," U.S. v. Webster, 750 F.2d 307, 323 (5th Cir. 1984), citing Whiteley, but the question does not arise in the case at bar, because appellants are not innocent. [n. 9] Moreover, the propriety of such reliance clearly turns on facts, not law. Whether an officer's reliance on information from others can be sustained in the context of probable cause or qualified immunity depends on whether such reliance is reasonable, and credible, in the circumstances. As the Court said in Webster, "[W]e will not allow the collective knowledge doctrine to be used as a subterfuge to evade probable cause requirements." Id. Whether probable cause exists, or might reasonably be thought to exist, or is being "evaded", is obviously a question of fact.

n. 9. Police officers acting in good faith are entitled to rely on plausible information provided by other law enforcement personnel. However, if the relied-upon information turns out to be false, the arresting officer's (good faith, reasonable, but ignorant) decision to rely on the false information cannot insulate an otherwise illegal arrest. The Supreme Court said this in Whiteley v. Warden, in a holding that was collateral to its determination that the instigating officer there had lacked probable cause for the arrest of the petitioner---notwithstanding the (ignorant) good faith of the arresting officers---compelling the decision to vacate his conviction. Whiteley, 401 U.S. at 568.

*35 Here the district court identified a large number of disputed facts which cast serious doubt on whether the "laminated total" of "collective knowledge" among the officers and agents who worked together, or in "some degree of communication" on the case, per Webster, provided appellants with a basis to reasonably and honestly believe plaintiffs were knowingly in possession of a bomb. These include at least the substance of almost every item on appellants' list of supposedly or possibly non-material "disputed facts", set forth above. The existence of these disputes---and their materiality--- precluded the granting of qualified immunity. (ER. p41, 51, 54) Although the district court did not explicitly invoke the fellow officer rule, its analysis of the "totality of circumstances" involved in the purported probable cause decision necessarily accounted for the defendants' "collective knowledge" with respect to these facts, and the integrity---if not the conspiratorial character---of their communications about them.

Appellants now wish to hang their hat on the fact that the district court did not use the magic words "fellow officer rule", or cite Whiteley, in concluding that plaintiffs' evidence created triable issues of fact as to whether appellants could have believed they had probable cause---even though her very holding revolves around the question of "Defendants' collective knowledge". (ER. p46:5-8) (See *36 above, at I-(#9)) In demanding review of the district court's alleged failure to afford them the benefit of the reliance rule(s), appellants ask this Court to do what Johnson v. Jones forbids: review the District Court's determination that the record demonstrates genuine issues of fact going to their claim of justified reliance; where appellants obviously do not dispute the materiality of their supposed reliance, there is no legal issue to review.

B. The Facts Regarding Appellants' Right to Rely on Information Supposedly Received from the FBI and Others Are Materially Disputed, to Say the Least.

Moreover, this pseudo-legal issue fails on its merits. Appellants suggest that their reliance on information provided by the FBI, medical personnel at the scene, civilian witnesses and two assistant district attorneys, entitles them to qualified immunity from liability for arresting and searching plaintiffs without probable cause. (AOB p16-17) But the fellow officer rule only allows an officer to reasonably rely on information from fellow officers; it is not a shield against liability for false arrest. As with any information, it must be "'reasonably trustworthy"' to form the basis for probable cause. U.S. v. Butler, 74 F.3d 916, 920 (9th Cir. 1996). If the arresting officer's own observations conflict with or call into question the information provided by the fellow officer, or should, *37 probable cause is negated. "'A police officer may not close his or her eyes to facts that would help clarify the circumstances of an arrest' [and] must be held to knowledge of reasonably discoverable information bearing upon probable cause to arrest..." Sevigny v. Dicksey, 846 F.2d 953, 957, n.5 (4th Cir. 1988); Webster, 750 F.2d at 323 ("...the 'laminated total' of the information known by officers who are in communication with one another must amount to probable cause to arrest."). [n. 10] Here, the 'laminated total' was a negative value, because appellants et al. did not pool their 'collective knowledge', but their willful blindness, animus and deceit.

n. 10. Police officers in this Circuit appear to have an affirmative duty to inquire into the alleged basis for an arrest they make at the behest of another officer. In Guerra v. Sutton, this court held that INS agents were not entitled to qualified immunity where they had assisted local police in searching and interrogating undocumented immigrants in reliance on the police chief's assurance that his officers would obtain an "appropriate" warrant. The Court said the INS agents' unquestioning reliance on the existence of such warrants was unreasonable, because they had a duty to inquire as to the nature and scope of the warrant, and failed to do so. Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986). See also, BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ("A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest. Reasonable avenues of investigation must be pursued...").

Appellants also seek to hide behind a purported approval of the affidavit from two assistant district attorneys, who supposedly assured them the first search warrant stated probable cause. (AOB p19-20) Appellants cite *38Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) and United States v. Smith, 503 F.2d 1037 (9th Cir. 1974) in support of their purported right rely on an opinion of counsel. In each of those cases, an assistant U.S. Attorney rendered a legal opinion regarding probable cause, based on information the investigating officer believed to be true. Here, in contrast, the district attorney's opinion was based on an affidavit chock-full of misrepresentations, omissions and falsehoods.

To make the untold story short---where it is presented quite falsely in appellants' brief [n. 11]---the testimony of the two ADA's who were at headquarters (including the present DA, Thomas Orloff) was essentially that they accepted the matters stated in the affidavit at face value. (Reply, p18) Mr. Orloff admitted he did not try to learn whether factual assertions in the affidavit were true. (Ex. 45b, p52) Ms. Quist testified she didn't look at the car or remember seeing any photos of it. (Ex. 45a, p24) Thus any opinion of the district attorneys as to the validity of the search warrant was based on the same false and misleading averments that misled the magistrate. Appellants are not entitled to qualified immunity for *39 feeding the district attorney false information, and then claiming to rely on his ill-informed opinion.

n. 11. As witness the absence of any citation in appellants' brief (AOB p19-20), the court below ignored this part of the story, among others; so it is only part of the larger record (as to which appellants will no doubt want to join us in urging the Court to accept the "all evidence counts" rule from the Seventh Circuit, per Green v. Carlson, supra). See Reply, p18, Ex.45.

Appellants' purported reliance on medical personnel and other civilian witnesses is a different kettle of fish, which does not come within the fellow officer rule, or Whiteley, so this part of the claim is unperfected. Moreover, the district court considered the evidence about information civilian witnesses gave and/or were said to have given to appellants, and found material facts in dispute as to their accuracy and significance, and how appellants reported and used it. The court questioned Chenault's representation of what the paramedics reported Bari and Cherney said en route to the hospital, (ER. p5-6; ER. p50) and his accuracy and selective inclusion of statements by Marr and Kemnitzer, when he pretended, under oath in the affidavit, to describe Earth First!'s supposed "reputation for violence". (ER. p10-12, 47-48)

Unlike police in the real "fellow officer" cases, appellants here were main actors in the bombing investigation, with the broadest access to relevant information. Plaintiffs proffered a large volume of evidence showing that appellants' own observations at the scene of the bombing and thereafter, plus much confirming collateral information that was immediately available, pointed to plaintiffs' innocence. Honest, reasonable officers in possession of this *40 information would not have arrested plaintiffs and would not have made the statements they made in their affidavits. They would not have ignored the strong indications that plaintiffs were victims of the bombing attack, in favor of cynical, bogus hypotheses, at odds with the brute physical facts, coming from people known for ulterior motives. Invocation of a right to rely as a matter of law does not erase the disputes noted by the court, and does not magically render appellants' decisions to arrest and search plaintiffs any more reasonable. Instead, the existence of these disputed facts precludes the granting of qualified immunity and requires trial by jury.

All three appellants saw the car, and the hole(s), and therefore they knew, or should have known, that the bomb did not go off in the back seat; it went off under the driver's seat, and blew up into Judi and down into the street. They saw or *41 should have seen the nails were different. Therefore they also knew or should have known that Doyle was not being straight with them; and they would have known, except to the extent they were all of one mind about a frame- up. Appellants were definitely of one mind themselves after inspecting the car and talking to Doyle; they discussed getting a search warrant, Sims advised Chenault to do so, and the rest is perjury...er, history. (ER. p9-10; Plaintiffs' Motion, Exhibits P-5-9, P-20, P-22; 7, p.2; 10, pp.2-3; 34-c, p362) [n. 12]

n. 12. Appellants' statement of the district court's description of the facts regarding the bomb location---self-assigned crux of their argument--- is inaccurate. (AOB p20) The Court did not state that "each investigator who had been trained in bomb crime scene investigation...independently came to a single conclusion: the bomb...should have been visible." Id. In fact, the court recounted conflicting opinions and observations as to the location of the blast. (ER. p9-10)

As we have seen, appellants' sensational charges that Judi and Darryl were knowingly carrying the bomb in Judi's car were false in every aspect, and the entire enterprise of trumping them up was carried out cooperatively by these three Oakland detectives and the FBI Terrorist Squad agents Reikes and Doyle, [n. 13] each *42 of whom "played his part" in helping to generate and build the malicious false pretense for the arrest and search event---while letting the real bomber(s) get away.

n. 13. SA Sena was also directly and critically involved, as described above, along with SAs Buck and Webb, both wrongly dismissed (as Sena was, from the arrest count) at a minimum In all, up to a dozen agents were enough involved at the scene and elsewhere to have known without a doubt that the arrest and charges, three hours after the blast, had to be false. Yet the court held that "Plaintiffs have not shown that SA Sena provided false information to the Oakland Police." (ER. p48:19-23, 49:1-3) In fact the court was advised of strong evidence that the purported tip Sena told appellants about---where it is undisputed that he told them---was phony and fabricated. Were it not for the court's misguided rulings allowing the FBI to keep secret the deletions, documents and files pertaining to the informant, and barring the deposition of the informant herself and related witnesses, the evidence would be stronger still. See Motion, p20-22; Informant pleadings, Dkt. #153-163, 165, 168-170, 172, 175-178. Based on its finding, the court dismissed SA Sena from the false arrest claim, while leaving him in the conspiracy with the other agents---but he was very much a part of the Terrorist Squad team that fomented the false arrest.

That is to say appellants obviously acted with their eyes wide open---except where they were purposefully blind. Stoked with "animus" from the (phony) secrets passed by Reikes and Sena, they joined and compounded the Doyle fabrications about the location and the nails with hokum of their own: the Marr-Kemnitzer distortions, the canard about Darryl saying the bomb was thrown, etc. Plus, they did the heavy lifting: the bust itself. They knew the FBI, by statute, has preemptive responsibility for terrorism cases; [n. 14] but theirs was 'not to reason why', they just stepped up.

n. 14. 28 CFR § 0.85(1) provides that the Bureau shall "[e]xercise Lead Agency responsibility in investigating all crimes...which involve terrorist activity..." By amendment published in the Federal Register on March 29, 1990(!), "[t]he regulation [was] expanded to clarify and specifically define the investigative role of the FBI relative to... domestic and international terrorism...[and] permit the FBI to demonstrate clearly that it is the lead agency in this area and that it acts in this role with the full authority of the Attorney General." F.R. Vol. 55, No. 61, 3/39/90, p11585 (emphasis added).

*43 Plaintiffs' claim of error by the district court in excusing these appellants from the conspiracy charge can and should be reviewed by this Court in this appeal, because it is "inextricably intertwined" with appellants' own claims; this provides a fair and reasonable basis for 'pendent appellate jurisdiction'. Samuels v. Meriwether, 94 F.3d 1163, 1166 (8th Cir. 1996), citing Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995); Primas v. City of Oklahoma City, 958 F.2d 1506 (10th Cir. 1992); Barrett v. Unted States, 798 F.2d 565 (2nd Cir. 1986). Neither Swint nor this court's own decision in Armendariz v. Penman, 75 F3d 1311, 1317 (9th Cir. 1994), hold fast to the contrary, and the circumstances here will illustrate why pendent jurisdiction of a (cross-)appeal is proper in a proper case.

As reflected in their claim that disputes of fact created by the evidence showing their conduct are not "material" under Collins v. Jordan, appellants seek to justify the conduct as worthy of immunity, as a matter of law, by way of a finding that they reasonably could have believed they were acting lawfully in what the evidence shows they did and didn't do. This Court's consideration of the "materiality" claim thus inevitably requires review of the meaning of plaintiffs' *44 strong evidence of non-immune conduct, even where it may not (re-)consider the sufficiency of that evidence to show the conduct took place as plaintiffs allege. Therefore, anomalies abound---not limited to that which arises from the implicit end run around the Supreme Court's rule against review of the "sufficiency determination", Behrens v. Pelletier, Johnson v. Jones, essayed in the counter-rule that "materiality" is reviewable, per Collins. This Court must now examine the evidence and pass on the district court's evaluation of what it shows, in terms of specific disputes of fact that are "material" to the claim of qualified immunity, and in relation to the supposed error of law involved in the purported failure by the court below to afford appellants their "right to rely" on "information" supposedly received from "other law enforcement personnel".

Where the court found the evidence showed an anti-First Amendment FBI conspiracy against plaintiffs, on the one hand, and that these appellants had no right to immunity from the charges of knowing false arrest and fraudulent searches, on the other, the false arrest---with its headline-grabbing power and devastating smear effect---was the linchpin of the conspiracy. Yet the court said there was no evidence showing that appellants had a part in the conspiracy. That is an anomaly also, and an intolerable one, which requires corrective action in this appeal.

*45 The claim that appellants are entitled to immunity because they've been found not to have conspired, and thus had a right to rely, cannot be extricated from the plaintiffs' converse claim that appellants are subject to the conspiracy claim---and to claims for all violations that flowed from the conspiracy---because the evidence in plaintiffs' best light supports it, as a matter of law; because the law is that the trial court must not weigh the evidence. If the false arrest is made out, the conspiracy is also; a jury must decide it, by resolving the material disputes created by the evidence and (partly) recognized by the court. It cannot be determined peremptorily, by way of an erroneous failure to accord plaintiffs the fair benefit of their "best light" in reviewing the proffered evidence.

Appellants had no legal right to rely on what the FBI told them when they could see for themselves it was false. A defense based on the right to rely joins the very issue they seek to avoid: if they're not conspirators, they're dupes. If they're dupes, the argument goes, they had a right to rely on FBI hokum, reasonably could have believed they had valid grounds to arrest, and are not responsible for deceiving the magistrate. [n. 15] They assert these things must be taken *46 as true as a matter of law, based on the conspiracy ruling, but the court found evidence sufficient to create issues of fact as to those claims. Appellants dare not claim those issues are not material, since they go to the essence of their supposed right to rely; instead they would have it that those issues are concluded in their favor, by the conspiracy ruling. But that conflicts with the court's 'sufficiency determination' (which can't be appealed). Thus the court's ruling that the evidence created issues of fact as to whether appellants "rushed to judgment" in making the arrest, and knowingly deceived the magistrate with the affidavit---but still did not show conspiracy--is clearly untenable. The two issues are not just intertwined, they are the same.

n. 15. But they still wouldn't get qualified immunity, because it neither protects "the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986) (emphasis added).

A civil conspiracy is "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties 'to inflict a wrong against or injury upon another,' and 'an overt act that results in damage.' " In order to prove the existence of a civil conspiracy, a plaintiff is not required to provide direct evidence of the agreement between the conspirators; "[c]ircumstantial evidence may provide adequate proof of conspiracy." Absent the testimony of a coconspirator, it is unlikely that direct evidence of a conspiratorial agreement will exist. Thus, the question whether an agreement exists should not be taken from the jury in a civil conspiracy case so long as there is a possibility that the jury can "infer from the circumstances [that the alleged conspirators] had a 'meeting of the minds' and thus reached an understanding" to achieve the conspiracy's objectives.

*47 A plaintiff seeking redress need not prove that each participant in a conspiracy knew the "exact limits of the illegal plan or the identity of all participants therein." An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was "a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences."

Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), revised in part on other grounds per curiam, 446 U.S. 754, 100 S.Ct 1987 (1980) (citations omitted).

In deciding to excuse appellants from plaintiffs' First Amendment and conspiracy charges for lack of evidence, the district court impermissibly weighed the evidence. In holding that there was "no evidence that [appellants] shared [the FBI's] animus," the court ignored the fair implication, from the extensive evidence of their cynical participation in the scheming and contrivance that underlay the arrest and the warrant applications, that appellants accepted, embraced, adopted, indulged, ratified or otherwise knowingly aided and abetted---i.e., co-conspired to help achieve---the evil, defamatory designs of the FBI. One might not agree that such an inference is compelled by this evidence, but it certainly cannot be ruled *48 out as a matter of law. It's a question of fact, and ancient principle: "It is elementary...that conspiracies are seldom capable of proof by direct testimony and may be inferred from the things actually done." Eastern States Retail Lumber Dealers Assn. v. United States, 234 U.S. 600, 612 (1913) (emphasis added). See also, Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983); Frazier v. SEPTA, 785 F.2d 65, 67 (3rd Cir. 1986); Roberts v. Heim, 670 F. Supp. 1466, 1484 (N.D.Cal. 1987), citing Gilbert v. Bagley, 492 F. Supp. 714, 727 (M.D.N.C. 1980). In Hafner v. Brown, police officers were held liable who merely stood by and watched while other officers beat the plaintiff; the trial court's ruling that this was sufficient evidence of a conspiracy was upheld. 923 F.2d 570 (4th Cir. 1992).

Similarly, there is no requirement that plaintiffs produce independent evidence that appellants harbored the same pre-existing animus against plaintiffs and/or Earth First! that the FBI brought to the bomb scene. It is more than enough that they willingly participated, indeed took the lead, in a plot to carry out the sensational (false) arrest, in circumstances where the true "collective knowledge" of the involved officers and agents, including appellants, was that there was no evidence at all which incriminated the plaintiffs, there was every reason to understand that plaintiffs were victims of the bombing, and the involved FBI agents clearly intended to frame plaintiffs for political reasons.

*49 To be liable as a conspirator, you must be a voluntary participant in a common venture, although you need not have agreed to the details of the conspiratorial scheme or even know who the other conspirators are. It is enough if you understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do your part to further them.

Jones v. City of Chicago, 856 F2d 985, 992 (7th Cir. 1988)(beyond this, attempts at definition will not help) (citations omitted).

Appellants' role in the common scheme with the FBI was to trump up the charges, carry out the (false) arrests, make the (sensational) public announcements, forge the warrant affidavit, do the searches, make more announcements, distort the evidence and the crime lab results, make more announcements, forge another search warrant for another sensational, meaningless search, make more announcements, etc, etc. While they may have acted at the FBI's inspiration or behest, or simply to please them, that is the program appellants "accepted", and surely did "their part" in---and they are responsible for their own actions and the consequences thereof, as we know. Monroe v. Pape, 365 U.S. 167 (1961); etc.

Seen in the light most favorable to plaintiffs, where the essential nature of the single plan was to arrest plaintiffs on no evidence and loudly announce it to the media and the waiting world, appellants' actions in cooperation with the FBI fit clearly within these rules. Instead of seeing the evidence of their conduct in *50 plaintiffs' best light, however, the court below portrays it in marginally favorable terms, and only half-allows the inferences plaintiffs' best light clearly permits. Thus with respect to the conspiratorial contrivance of the grounds for arrest, the Court states merely that appellants had "been told, apparently by SA Doyle, that the most likely site of the bomb was behind Ms. Bari's seat." (ER. p38:16) But they saw it for themselves! Chenault "viewed the white Subaru along with agents from the FBI"; Sitterud had two government training courses and many seminars in bomb investigation, and 12 years' experience; Sims looked inside the car and saw the hole through the seat to the pavement. [n. 16] They all saw there was no damage to the back seat, and no sign of burning on it or on the back of the driver's seat, as would have occurred in the direct space of a blast in the rear seat area; and they knew or should have known the upward nature of Judi's wounds.

n. 16. Chenault, Ex. 7; Sitterud, Ex. 28, p2; Sims, Ex. 34-c, p362.

That is to say the evidence fully supports plaintiffs' claim that appellants saw what any fool plainly would have seen and understood, which was that the bomb went off under the seat; it shows that each of them knew that, but hid and falsified their knowledge, in furtherance of the conspiracy. They suppressed much other knowledge as well, and they made up a number of things---falsehoods masquerading as knowledge, like the "identical" nails, and the Earth First! *51 reputation for violence---to deceive a magistrate, with false swearing, in aid of a frame-up. The court below marshals much of the evidence that shows the frame-up, of course, but again minimally, tepidly, in a way that downplays and obscures the intentionality displayed by these appellants in their cooperation with the FBI defendants. This unfairly undercuts the plaintiffs' case, rather than showing it in its best light. As the Hampton Court said further,

The fact that "all of the evidence...does not point in one direction and different inferences might reasonably be drawn from it" does not justify judicial intrusion into the jury's role in determining whether a civil conspiracy existed. In such a situation, "it is the jury which 'weighs the contradictory evidence and inferences' and draws 'the ultimate conclusion as to the facts.' " When a plaintiff alleges a conspiracy to violate civil rights, "(t)he existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide."

600 F.2d at 621 (citations omited).

Fairly construed in the light most favorable to plaintiffs, the totality of the evidence shows the appellants obviously did not act in a vacuum, but with shared understanding and a meeting of minds, Adickes v. Kress, 398 U.S. 144, 158 (1970), among themselves and with their FBI mentors, to do unlawful acts: arrest people they had no evidence against, and lie and contrive to deceive the Magistrate; and perform lawful acts in an unlawful way: investigate a crime without trying---because of prejudice against the victims---to find those *52 responsible; publish statements about the "investigation" in the press, replete with falsehoods intended to defame the victims; etc. In other words, there is a fair, reasonable, well-founded inference from this evidence, taken in the light most favorable to plaintiffs, that appellants were involved in a conspiracy, or conspiracies. Against a claim for summary judgment, it is a compulsory inference, and plaintiffs are entitled to its benefit in making out their case of non-immune conduct---along with the fullness of all related inferences about appellants' intent. That is what the law requires. The district court, with all respect, is "in denial" about the conspiracy and appellants' involvement in it, and overprotective of the police; it must be made to face reality, by an appropriate admonition from this Court.

CONCLUSION

This case, in which plaintiffs have alleged gross misconduct by federal and state law enforcement officials and have presented serious evidence to support these claims, is of paramount significance.

---Hampton, at 621

This case exposes secret, illicit Government operations not only designed and intended to stifle legitimate dissent, but premised on official permission to attempt murder and get away with it, and do so in conjunction with a cynical *53 cover-up of the murder attempt in the form of appellants' false charge that the victim herself was responsible. It is hard to imagine a more complete and depraved perversion of law enforcement authority; and the proof that these appellants really did it, and conspired to do it as accomplices of the FBI, is overwhelming.

The case against appellant officers is deformed, however, and seriously undermined, by the lower court's unfair negative decisions about the evidence, and particularly its contradictory ruling on First Amendment "animus", and conspiracy. Appellants' conduct is quite incomprehensible in the absence of knowing complicity with the evil designs of the FBI. Given the contradiction, it is not surprising to find them here insisting they have qualified immunity because they acted in good faith on information the FBI gave them, and were entitled to take it at face value. This being the sum and substance of their appeal, however, fairness and logic require that plaintiffs also be permitted to assign error in the district court's decisions about the evidence appellants rely on, and the legitimacy of the conspiracy claims which arise from it, implicating them.

Action on plaintiffs' (cross-)appeal is required because the trial court's protective instinct towards the police is out of hand, in particular where it apparently prescribes that plaintiffs were required to prove that "the Oakland *54 Police Department" was involved in some preexisting joint program with the FBI to neutralize dissent, in order to hold them as conspirators. (ER. p63:25-26) In fact it was more than sufficient to show that these three officers, case-hardened big-city homicide detectives who encountered the dashing FBI Terrorist Squad while supposedly responding 'routinely' to the bombing in the course of their duties, fell right in with the foul and criminal scheme the federal agents were hatching. Given the communications by which defendants fabricated their "collective knowledge", how can it be said as a matter of law that appellants did not embrace the federal enterprise? Only a jury can say that, if it will. And the notion that these appellants, on this record, stand in the position of the "innocent", remote arresting officers in Whiteley is little short of obscene.

Judi Bari was a bold and extraordinary woman. At the time of this attack she had already made a substantial mark in a substantial and growing mass movement, as an organizer, strategist, spokeswoman and 'charismatic' all-around leader, increasingly able to command attention for the movement and its cause from the mainstream world, and the press. Darryl Cherney, highly intelligent and talented, a life-long entertainment pro, was a very excellent public consort for her, singing, joking, analyzing, exhorting. The two together were radical, winning, and most effective at inspiring youthful conscience to defense of the environment and *55 the ancient trees, and resistance to the clear-cutting corporate menace. They were calling forth a national movement of moral pilgrims to save the redwoods and the forest economy, the way people went to the south for the sake of civil rights in Mississippi Summer, 1964. They and Earth First! were prepared to lead non-violent direct action by masses of people. With her marvelous big mouth, and the courage, brains and good humor to back it up in all situations, Judi posed serious danger to the profits and future the North Coast timber industry-planned for itself.

So somebody struck at her, with a hit team, in a very brutal and well-thought- out way; but they missed. Then these appellants struck at her also, but they didn't miss; they hit the headlines. It was a one-two punch, private and public sectors working together to neutralize a threat to the status quo.

It is simply unconscionable to rule on this evidence that these defendant detectives didn't show animus to plaintiffs; the lowest sort of animus suffused everything they did, most of it conclusively established in this record. With their undoubted real world experience and know-how---without getting into the actual "intelligence" links that exist between the FBI and locals, or their very special relationship with OPD---there is no question these seasoned officers knew perfectly well the rotten scheme. They knew it involved defamation; they carried it out. Sims told the press for days, indeed months, that plaintiffs were "the only *56 suspects". They knew it involved hokum evidence: they could see the real hole and the nails; they added hokum of their own. They knew there was no evidence against Judi and Darryl, but they made that second search and got her right back on the front page as a bombing suspect. And they knew they were letting the real, would-be killers go free---a monstrous, criminal obstruction of justice, on top of the moral monstrosity of the frame-up.

The district court, instead of smoking out and rooting out such aggravated wrongdoing, has minimized the evidence and stultified important issues it creates, ignored the cover-up, exonerated the responsible higher-ups, and helped the Government keep important evidence secret. Plaintiffs and a candid world can only hope this honorable Court will intervene.

WHEREFORE, the Court is respectfully requested to act under Rule 2, F.R.A.P. or otherwise within its authority to take jurisdiction of plaintiffs' own emergent appeal and petition as set forth within, in order to rectify the error, injustice and prejudice arising from the district court's failure to acknowledge the good evidence of conspiracy against appellants presented to it in plaintiffs' pleadings and the record herein; to then make short work of the 'inextricably intertwined' claims of appellants, which will be deprived of their veneer of plausibility by forthright action with respect to the conspiracy evidence, rejecting *57 them firmly and thoroughly; and to grant such other and further relief as may prove to be just and appropriate in the premises of this agonizing case.

*1a Your affiant says that the facts in support of the issuance of the search warrant are as follows:

??ur affiant is employed by the Oakland Police Department and has been s?? employed since August 1976. Affiant as a Police Officer has been assigned to the Patrol Division for four years, Traffic Division for five years and Narcotic's Section for one year. In 1986 affiant was promoted to Sergeant of Police and was assigned to the Criminal Investigation Division. Affiant worked as a Burglary Investigator. Robbery Investigator and is presently assigned to the Homicide Section.

On 24MAY90 Sgt. Sitterud, an Oakland Police Officer, and affiant were assigned to the Homicide Standby Duty. At 1200hrs Sgt. Sitterud and affiant were assigned to respond to a explosion at Park and MacArthur Boulevard in the City of Oakland. Sgt. Sitterud responded to the scene and affiant responded to Highland Hospital where the occupants of a vehicle were being treated, associated with the explosion.

Affiant arrived at Highland Hospital at 1215hrs and observed Allied Ambulance Company arrive at the Hospital. The first ambulance to arrive had a female white name Julie Bari. Bari was taken to the Trauma Room. Affiant spoke with Allied Paramedic Sal Taormina who transported Bari to the hospital. Taormina told affiant that he had responded to a report of an explosion and observed a white car at Park and MacArthur which appeared to have suffered an explosion. While treating Bari at the scene she told him that. "A bomb went off in their car."

A second ambulance arrived a Highland Hospital with a male white on the ?? rney. The man told Hospital staff that his name was Darryl Cherney and ??t he was a political activist and this was an assassination attempt. Cherney was taken into the Trauma area for treatment. Affiant spoke with Allied Paramedic Brian Buckman who transported Cherney to the Hospital. Buckman said that Cherney told him at the scene that. "We are political activists with Earth First and they threw a bomb at us."

Affiant learned from medical staff that Bari suffered a shattered pelvis and internal injuries and that Cherney suffered multiple lacerations.

Affiant left the hospital and went to the scene of the explosion. Affiant met with Sgt. M. Sitterud. Sitterud advised affiant that Bari and Cherney were in a white Subaru Station Wagon California License #2NWX290. They were traveling northbound on Park Boulevard when a bomb exploded inside the vehicle and the vehicle came to rest at the west curb. Bari was driving the car and Cherney was the right front passenger. Sgt. Sitterud said that two witnesses to the incident were at the Homicide Section.

Your affiant viewed the white Subaru along with agents from the F.B.I.?? Your affiant was advised by these F.B.I. Agents that the bomb device was on the floor board behind the drivers seat when it detonated. Your affiant spoke with F.B.I. Special Agent Frank Doyle Jr. who told affiant that he has been assigned to the International/Domestic Terrorism Squad for the past twenty years, has been trained as a hazardous devices technician, is a police instructor in terrorism and bomb matters?? and has processed approximately one hundred and fifty bombing crime scenes in the United States. Agent Doyle has *2a testified in Federal. State and local courts as an expert concerning bombing matters. Doyle advised your affiant that he conducted an examination of the ??ite Subaru at the scene of the bombing. Doyle stated that he observed the components of a pipe bomb including a battery a mechanical watch, electrical wires, pieces of a pipe nipple meas??ing approximately 2 inches by 12 inches having been capped at both ends and filled with a low explosive filler. Doyle also observed numerous nails bound together by silver duct tape for shrapnel effect. He told your affiant that a separate bag of nails was discovered in the vehicle that are identical to the nails taped to the explosive device.

Doyle informed your affiant that his conclusion regarding the location of the explosive 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.

Your affiant and Sgt. Sitterud interviewed Marr at the Oakland Police Department. Shannon Marr was one of the witnesses at the bomb scene. Marr told affiant that she was friends with the occupants of the Subaru. Marr said she was a member of "Seeds of Peace." which was an organization which provided logistical support for various demonstrations and political groups. Marr said her organization is equipped to provide food and water to up to 1500 people a day. Marr said her organization is based at 3237 California Street. Berkeley. California. Marr said that her organization was approached by Earth First which is a group which is fighting clear cutting of old growth ??edwood trees in Northern California. Marr described Bari and Cherney as being Northern?? California leaders of Earth First. Bari and Cherney approached Seeds of Peace to request support for a demonstration called "Redwood ??mer." Redwood Summer would be an on-going demonstration in Northern California to prevent lumber companies from clear cutting redwood trees during the summer. Marr ?? said that Seeds of Peace were concerned about joining with Earth First because it had a reputation of violence and property destruction. Marr said that Bari and Cherney and other Earth First members convinced Seeds of Peace to support the demonstration.

Marr said that on the night on 23MAY90 members of "Seeds for Peace" and members of "Earth First" met at 3237 California Street, Berkeley to discuss the "Redwood Summer" demonstration. Bari and Cherney were present for the meeting. After the meeting Shannon said that Bari left the Berkeley address with-David Kemnitzer and spent the night at Kemnitzer's residence in Oakland.

Marr said that after the meeting Cherney spent the night at the Berkeley address. Marr said that Bari left in her white Subaru station wagon and that Cherney had a van which was parked near the Berkeley address.

Marr said that on 24MAY90 she left the Berkeley address at approximately 9:15A.M. with Cherney. Marr said she and Cherney drove to David Kemnitzer??s house in Oakland on East 23rd Street. Marr drove Cherney in her Datsun. Marr said that when they arrived at Kemnitzer's she and Cherney entered the residence. Inside the residence Kemnitzer?? Bari?? Cherney and Marr worked on writing a grant proposal for a environmen?? camp

Marr said that Bari and Cherney also had a guitar case and a violin case inside Kemnitzer's residence and that Bari and Cherney sang a song before *3a leaving Kemnitzers' residence. Cherney also had a camouflage backpack a Kemnitzers house. Marr said they decided to leave Kemnitzer's to go to copy shop and that Bari and Cherney carried a violin case, backpack and mayb?? two guitar cases outside to Bar's car. Marr said that Bari and Cherne?? planned to travel to Santa Cruz to attend the Redwood road show.

Marr said that Bari and Cherney did not know Oakland very well, so they wer?? going to follow her. Marr drove her Datsun while Bari followed in her Subar?? with Cherney as the right front passenger. Marr said as she drove north o?? Park Boulevard, just minutes after leaving Kemnitzer's she heard the explosion, felt heat and smelled a sulphur smoky smell. Marr looked in her mirror and saw Bari's vehicle smoke pouring from the interior, pass by Marrs?? vehicle and collide with a pole at the west curb. Marr stopped her car an?? ran to Bari's vehicle. Bari said her back was hurting and Cherney had facial cuts. Cherney told Marr to take his camouflage bag out of Bari's car because he would need it. Marr said that she took the bag and placed it in her vehicle

Marr said she remained at the scene until police and fire crews responded to the scene.

Sgt. Sitterud then spoke with David Kemnitzer at the Homicide Section. Kemnitzer lives at 725 East 23rd Street. Oakland. Kemnitzer said he met Judy Bari and Darryl Cherney in april 1990. Kemnitzer said that he attended a meeting in Laytonville. Northern California and that Bari and Cherney were members of Earth First and that Earth First was seeking support for a summer demonstration. Kemnitzer said his friends who belonged to Seeds of Peace were concerned about Earth First's reputation. Kemnitzer told affiant that Earth First had a reputation of violence and sabotage. Kemnitzer said there were several meetings where Bari and Cherney said that the Redwood Summer would be strictly nonviolent. Kemnitzer said that the night of 23MAY90 he attended a meeting at 3237 California Street and that Bari and Cherney were present. After the meeting Bari followed Kemnitzer home in her Subaru and that she spent the night inside his residence at 725 East 23rd Street. Oakland. Kemnitzer said that Bari brought a fiddle case, sack type purse a blue duffel type bag and a hard guitar case. Kemnitzer said that Shannon Marr and Darryl Cherney came to his house the morning of 24MAY90 at approximately 9:30A.M. Marr and Cherney came over in Marr's Datsun. Kemnitzer said that Marr and Bari and Cherney left the residence and he did not see them load the car. Kemnitzer said that Bari and Cherney were going to follow Marr. Kemnitzer said ??he ??eft his residence approximately five minutes later and saw the damage?? car and police on Park Boulevard. Kemnitzer said he remained at the scene and contacted the police.

Affiant believes that Bari and Cherney are members of a violent terrorist group involved in the manufacture and placing of explosive devices. Affiant also believes that Bari and Cherney were transporting an explosive device in th??er vehicle when the device exploded. Cherneys explanation of the incident is inconsistent with the physical evidence found at the scene.

The Subaru occupied by Bari and Cherney is registered to Julie Bari. 9491 Humphrey Lane. Redwood Valley. California. Bari gave this address to the hospital staff at Highland Hospital. Affiant telephoned Deputy Satterwhite of the Mendocino County Sheriff's Office. Deputy Satterwhite is femil??ar *4a with Juli Bari and spoke with her on 25APR90 and at that time she said she ??ived at 9491 Humphrey Lane. Redwood Valley. Deputy Satterwhite advised ?? iant that at that address there are three structures and a house trailer. Satterwhite stated that the property is communal type and consists of a single story natural wood residence, a two story redwood house under construction, an unattached natural wood three sided shed and a twenty foot house trailer. Deputy Satterwhite also advised he contacted neighbors who know Bari and they stated Bari is in and about the above buildings and trailer.

Affiant knows that both Bari and Cherney were at 3237 California Street. Berkeley, on 23-24MAY90. Affiant believes that there is material at that location used for the manufacture or storage of explosive devices.

Affiant therefore requests that a search be permitted of 3237 California Street. Berkeley and a search of the buildings and trailer at 9494 Humphrey Lane. Redwood Valley for evidence relating to the manufacture or storage of explosive devices.

Affiant knows thru training and experience that persons involved in the manufacture of explosive devices attempt to conceal their true identity, therefore affiant requests that a search for indica which would tend to show residency and or control of the premises be permitted.

Affiant requests that this search warrant be endorsed for night service due to the wide publicity of the incident in the Berkeley and Redwood Valley area to prevent the concealment or destruction of evidence. This evidence would i??lude items which are easy to conceal and remove from the residence.

WHEREFORE?? affiant prays that a search warrant be issued, based upon the above facts, for the seizure of said property.

*1aaa UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEPOSITION OF JUDI BARI

January 30, 1997

and

January 31, 1997

BROOKS & OJEDA, INC.

Certified Shorthand Reporters

1956 Webster Street, Suite 450

Oakland, CA 94612

(510) 444-0200

Reported by:

DEBORAH WONG BROOKS

CSR No. 5223

*2aaa A. I was not --

Q. What were you aware of with respect to Darryl after the explosion?

A. I was not aware of what injuries he had or didn't have.

Q. Okay.

A. I remember him telling me that he loved me, and that I was going to live.

MS. RODRIGUE: Objection. Again goes beyond the scope of the question.

MR. CUNNINGHAM: Q. Do you remember Darryl saying anything to you while you were still in the car?

MR. SHER: Object to the hearsay.

MR. CUNNINGHAM: Q. You can answer.

A. Just what I said. I remember him saying that he loved me, and I remember him saying that I was going to live.

Q. And then what can you tell us about -- that you can recall, about being removed from the car?

A. I just remember incredible pain. I was not conscious enough of what was being done to me to describe that, except that it was incredible pain.

Q. And what's the next thing you remember after being taken out of the car?

A. I remember being placed on a gurney, which, again, was another incredible pain. I remember being put in an ambulance. I remember going to the hospital in the ambulance. I remember repeating that my back was broken, because I wanted them to --

MR. SHER: Counsel, she's beginning to narrate again.

MR. CUNNINGHAM: Q. Do you know who was in the ambulance with you, if anyone?

A. I presume that there were paramedics, but --

MS. RODRIGUE: Objection. Calls for speculation.

THE WITNESS: I didn't ask.

MR. CUNNINGHAM: Q. Were they people who had -- some of the people who had taken you out of the car, ride in the ambulance with you, too, to the hospital?

A. I presume so, but I don't know that.

Q. And do you recall arriving at the hospital?

A. Yes. I remember being moved again, and again being in incredible pain.

Q. And what happened when you got to the hospital when you were moved? Where did they take you?

A. I don't know.

Q. And what's the next thing you do know that happened?

A. I remember a nurse hugging me and telling me that they were going to put me unconscious, and that I would probably wake up with one of those little colon bags. I forget what they're called. And I remember begging them to let me die, and that's the last thing I remember before I lost consciousness.

Q. Do you remember talking to anyone before losing consciousness, besides -- between the time you got to the hospital and the time you went in the emergency room?

A. I remember people around, but I don't remember talking to any of them. I remember people talking at me, but I didn't understand what was going on.

Q. Do you remember any statements that you made at the time about what happened, or about who might have been responsible for what happened?

A. No.

Q. And do you remember being in the operating room?

A. No.

Q. Do you remember -- is there anything, besides the nurse talking to you about when you would wake up, that you can recall, that happened before you then lost consciousness?

A. No.

Q. And what's the next thing that you remember that happened when you woke up again?

A. I remember waking up and finding myself completely immobile and my leg up in a traction device, and I remember that there were two uniformed police standing next to me as soon as I opened my eyes, and that they asked --

MS. RODRIGUE: Objection. Hearsay.

MR. SHER: We're beginning to get a narrative again, Counsel.

MR. CUNNINGHAM: Q. Okay. Where were you when you woke up?

A. I just know I was in a hospital bed. I don't know anything else than that.

Q. In a hospital room?

A. Yes. And it didn't seem to be a private room. There seemed to be curtains.

Q. And did the two uniformed officers speak to you?

A. Yes.

Q. And what was their conversation, and what statements did they make, and what statements did you make in the conversation?

MS. RODRIGUE: Objection. Hearsay.

*3aaa MR. SHER: You're also calling for a narrative again, Counsel, and we object to a narrative.

MR. CUNNINGHAM: Q. Did the officers speak to you when you woke up?

A. Yes.

Q. And what did they say?

MS. RODRIGUE: Objection. Hearsay.

MR. CUNNINGHAM: Q. You can answer.

A. They told me that I was under arrest, and they said they wanted to -- for transporting explosives, I guess. I don't remember their exact words. But I came to understand that I was under arrest for transporting the bomb.

MR. SHER: Move to strike her understanding, Counsel.

MR. CUNNINGHAM: Q. You're saying you came to understand from the conversation?

A. From the conversation. I'm just not remembering the exact words.

Q. That you were under arrest?

What else?

A. And that they wanted to question me.

Q. And do you know -- how many of these officers were there?

A. I remember two.

Q. And you say they were in uniform. Do you know their names or any badge number, or any other identifying characteristic?

A. No.

Q. Do you remember what they looked like?

A. No.

Q. What was your condition at the time that you awoke and first spoke to these officers?

A. I was heavily drugged.

Q. Could you see and hear all right at that point?

A. My perception was hazy, but I saw and heard enough to understand that there were two uniformed officers speaking to me.

Q. And you also gathered -- did you also gather, at that time, what it was that you were supposed -- you were under arrest for?

MS. RODRIGUE: Objection.

MR. SHER: Objection.

MR. CUNNINGHAM: Q. Did they tell you?

A. They must have told me, but I don't remember their exact words. I do remember understanding --

Q. Do you remember the substance of what they told you?

A. The substance was that I was under arrest for transporting explosives.

MS. RODRIGUE: Again, objection.

MR. SHER: We'll move to strike that.

MR. CUNNINGHAM: Q. And what was your response to their request for -- to question you? Strike it.

What do you remember about what they asked you, in terms of questioning you?

A. Only what I just told you.

Q. Okay. And what was your response at that time?

A. I said I wouldn't talk to them without a lawyer.

Q. And what was their response?

A. I don't remember.

Q. And what else transpired in that conversation?

MS. RODRIGUE: Again, as to any --

THE WITNESS: I don't remember.

MR. CUNNINGHAM: Q. Do you remember anything --

MS. RODRIGUE: Wait, wait. Objection. Hold on. As to any conversation with these two unidentified officers, I would object in that it's hearsay.

MR. CUNNINGHAM: Q. Okay. Were you aware of who these officers worked for, what police agency they were part of?

A. No.

Q. Do you remember anything else about the conversation that you had at that time?

A. No.

Q. Did they leave while you were still awake?

A. I don't -- I don't recall. I kind of drifted back into semi-consciousness, you know, shortly after -- it was a brief conversation. And I don't know what happened to them or whatever.

Q. And what's the next recollection that you have?

A. In the hospital?

Q. Mm-hmm.

A. Just in general?

Q. In the hospital.

A. I remember a reporter coming to see me. I remember being told that I was a prisoner, and nobody was allowed to touch me.

Q. Who told you that?

A. I don't know.

Q. Okay.

A. I next remember my parents coming to visit me, and again I remember that they weren't allowed to touch me. I remember that my -- should I keep *4aaa going, or is that a narrative?

Q. When your parents came -- strike it.

Do you know how long it was after that first conversation with the two officers that you saw your parents?

A. No.

Q. Do you know if it was the same day or the next day or what date --

A. No.

Q. -- or numbers of days after?

MS. RODRIGUE: Objection. No foundation. She's already indicated twice she doesn't know how long it was that she saw her parents after the conversation with the two officers.

MR. CUNNINGHAM: Got it.

Q. And when your parents came to visit you, was there anyone else in the room?

A. No.

Q. And -- all right. And what else do you remember about the next period after you woke up?

MS. RODRIGUE: Objection.

MR. SHER: Objection. Calls for a narrative.

MR. CUNNINGHAM: Q. Your parents came to visit you. What's the next thing that happened after that? Strike it.

Did you have a visit with your parents?

A. Yes. And I remember them bringing in a tape recorder and asking me to make a statement on the tape for a newspaper, and I remember attempting to do that in a groggy state.

Q. Mm-hmm. And what happened after that? What's the next thing that happened after that, that you recall?

A. The next thing I remember is my ex-husband coming to visit me.

Q. Is that the same day that your parents came?

A. I don't know.

Q. And in between these visits, did you see medical people in the hospital that you can recall talking to?

MS. RODRIGUE: Objection. Relevance.

THE WITNESS: I remember seeing doctors and nurses, but I don't remember any specifics of my interactions with them.

MR. CUNNINGHAM: Q. And besides your parents, did your children come to see you?

A. Not until months later.

Q. You didn't see them at all until months later?

A. No.

MR. SHER: Counsel, relevance.

MR. CUNNINGHAM: Q. Did you get any additional information in that first period about the charges against you or about the circumstances of your arrest?

MR. SHER: Objection. Hearsay.

THE WITNESS: Not at that time.

MR. CUNNINGHAM: Q. When did you get any -- strike it.

You learned from the two officers that you were under arrest. When did you get any more information than that about any charges against you?

A. I -- there were about ten days that I drifted in and out of consciousness, and it wasn't until I regained consciousness more steadily that I learned more details.

Q. And when you did learn more details, who did you learn them from?

A. I don't recall.

Q. And do you recall having any conversation in that ten-day period with any attorney?

A. No. I do remember one striking incident in that ten days.

Q. And what was that?

MR. SHER: Counsel, unless we can have some --

MR. CUNNINGHAM: Q. An incident of what nature?

A. At some point I was taken -- I was in the critical care room. And at one point I was taken and moved, and I was moved to the jail ward. And this, I understood, was because I was under arrest, and -- should I keep going?

Q. Yes

A. Okay.

Q. Who moved you?

A. I don't remember. I don't know. I wasn't aware, I guess, is what I really need to say. And I remember being in the jail ward. I remember being in a room with a curtain, and there was a woman who was in labor on the other side of the curtain. I remember feeling great despair. There were no nurses or anything that came by, and I knew that I was very sick.

And then, at some undetermined time -- because I had no sense of time during this ten days. That's why I'm not able to answer your questions about how many days transpired. But I remember being taken back out of the jail ward and back to the critical care ward.

Q. Do you remember any conversation that went *5aaa on in your presence about either the move to the jail ward or out of the jail ward?

A. I only remember that I was told that I was being moved to the jail ward because I was under arrest.

MR. SHER: Objection. That's hearsay.

MR. CUNNINGHAM: We have a preexisting commitment to break right now. It's about ten minutes of 1:00. So, we'll take our break.

THE WITNESS: Are we off the record now?

MR. CUNNINGHAM: Yes.

(A recess was taken from 12:50 p.m. to 2:15 p.m.)

MR. CUNNINGHAM: Before we start, we did speak about hoping to strengthen the record, and to try and avoid narrative answers. I'll try and be more precise in my questions. You'll try and be more precise in your answers.

And, also, I'm going to start by asking her about the circumstances she's in to explain why she's sitting on a couch like this, so that what's on the film is explained, in terms of the illness and stuff. We'll just get that on there.

MR. SHER: No, Counsel. We object. I object strenuously.

MR. CUNNINGHAM: Why?

MR. SHER: Well, I assume it's not your position that Judi's present illness has any connection with this case.

MR. CUNNINGHAM: That's true.

MR. SHER: And I don't want the jury to hear a word of it from Judi. And the judge will tell her.

MR. CUNNINGHAM: We'll put it on there, and then we'll cut it off in case we're not allowed --

THE WITNESS: I want to make a small correction.

MR. CUNNINGHAM: Q. And what is that?

Are we on the record?

THE REPORTER: Yes.

MS. RODRIGUE: We are on the record.

THE VIDEOGRAPHER: Do you want to put a header on this, please?

MR. CUNNINGHAM: Yes. Show we're resuming the deposition of Judi Bari. All counsel are present. This is the evidence deposition in Bari vs. United States, C 91-1057-CW, and we're resuming the direct examination of Plaintiff.

Q. And you said there was a correction that you needed to make to something that you said this morning?

MR. SHER: We would object to that, Counsel, in an evidence proceeding. The witness' answer --

THE WITNESS: It's minor.

MR. SHER: -- ought not to be amended simply because you had a chance, over lunch, to think about it.

THE WITNESS: Should I go ahead?

MR. CUNNINGHAM: Q. Yes.

A. I believe you asked me whether I saw any lawyers in that early period in the hospital.

Q. Mm-hmm

A. And I replied "no." But I recall that actually I did see a lawyer during that period. A lawyer came in my room named Susan Jordan.

Q. And did you have a conversation with her?

A. Yes.

Q. And did she inform you of the circumstances of the charges against you at all?

A. I don't recall anything of the conversation.

Q. You're here today reclining on the couch in a private room, instead of testifying on the witness stand. Why is that?

MR. SHER: We object, Counsel, for the reasons as stated in the record that Ms. Brooks has taken before we were on the video record.

MR. CUNNINGHAM: Q. Okay. You can answer.

A. I have terminal cancer and am weak and getting weaker.

Q. And are you weak now so that you need to be reclining like this?

A. Yes.

Q. And can you give us the name or names of doctors who can confirm your condition for us?

A. Well, Dr. Lowitz in Walnut Creek. He's an oncologist. My primary care physician is Dr. Matheson of Willits. There's eight others, but I don't think you need them all.

Q. Mm-hmm. And at the time of the bombing, what was your occupation?

A. My occupation was a carpenter, but I was on a leave of absence.

Q. And what were you doing in your leave of absence?

A. I was organizing for Earth First! Redwood Summer.

Q. And what was Redwood Summer? What is Earth First! and what is Redwood Summer?

A. Earth First! is an environmental group, and in this region we fight to save the redwood forest. And Redwood Summer was a campaign that we *6aaa initiated in 1990 to bring in students and others from around the country to participate in a summer-long exercise of demonstrations, nonviolent civil disobedience, but with a very strong nonviolence code, and the object of it was to have people come in for nonviolent demonstrations.

Q. And what were the demonstrations going to be about?

A. The overcutting of the redwoods.

Q. And where were they planned to take place?

A. Various places. Mendocino County and Humboldt County would be the main ones. The three timber companies that own most of the redwoods were the primary targets: Louisiana Pacific, Georgia Pacific, and Maxxam Pacific Lumber.

Q. And how long had you been working with Earth First! at that time?

A. Since 1988.

Q. And was that in California, or elsewhere, as well?

A. It was in California.

Q. Okay. This was in 1990 that Redwood Summer was announced; is that right?

A. That's right.

Q. So -- you're not from California; is that correct?

A. No. I was born in Baltimore, Maryland.

Q. And when did you come to California?

A. 1979.

Q. So, how old are you now?

A. Forty-seven.

Q. So, how old were you when you came to California?

A. Just about 30. Just short of my 30th birthday.

Q. And before you came to California -- well, let's go to the beginning. Were you born in Baltimore?

A. Yes.

Q. And you grew up there?

A. Until I was 13. Then we moved to Silver Spring, Maryland.

Q. And where did you go to school?

A. I went to the local elementary school, junior high, and high school. The first -- well, I went to Catonsville Elementary School and Catonsville Junior High near Baltimore, and then I went to White Oak Junior High and Springbrook High School in Silver Spring, Maryland.

Q. And did you go to college?

A. Yes.

Q. When did you graduate from White Oak?

A. 1964. That's junior high, of course.

Q. I'm sorry. And when did you graduate from high school?

A. 1967.

Q. And where did you go to college?

A. University of Maryland.

Q. And what was -- what family did you grow up in? What did your family consist of when you were growing up?

A. Well, my father --

MS. RODRIGUE: Objection. Relevance.

MR. CUNNINGHAM: Q. Go ahead.

A. My father and my mother and my two sisters.

Q. And how old are your sisters? Are your sisters older than you or younger than you?

MR. SHER: Relevance, Counsel. This is really getting far afield.

THE WITNESS: One is older and one is younger.

MR. CUNNINGHAM: Q. And what was your father's occupation?

A. He was a diamond setter.

Q. And -- in Baltimore?

A. Yes.

Q. And what was your mother's occupation?

A. She was a teacher.

Q. Where did she teach?

A. At the University of Maryland, and then later on at George Washington University.

Q. What did she teach?

A. Mathematics.

Q. I'm sorry. Where did you go to college?

A. University of Maryland.

Q. And did you have a major?

A. Many. I had a checkered career.

Q. And did you graduate?

A. No.

Q. And when you left, where did you go?

A. I went to work.

Q. Where did you go to work?

A. Well, I think the first job I had after college was the equivalent of Burger King. You know, one of those fast-food franchises, but not one that they have out west. But then I got a job in a grocery store, a union job, and had that job for a while.

Q. And what other jobs did you have before you came to California?

A. Well, I did some construction work, low-skill construction work; clean-up crew, things like that. I was a house painter, and I worked at *7aaa the Post Office at the bulk mail center.

Q. Where is the bulk mail center?

A. Well, they're all over the country. But the one where I worked was in Largo, Maryland.

Q. And what was your job there? Strike it.

Is that the last job you had before you came out here?

A. Yes.

Q. And what was your job there at the bulk mail center?

A. I was a mail handler. I unloaded trucks.

Q. And were you in the union?

A. Yes.

MR. SHER: Objection, Counsel.

MR. CUNNINGHAM: Q. And did you do union work?

A. Yes.

MR. SHER: Counsel, we are so far afield that this is becoming a waste of time. If necessary, we'll have to call the magistrate on this.

MR. CUNNINGHAM: She's a plaintiff, Joe. She's testifying about her background. She has a right --

MR. SHER: What does it go to? What does union work go to while she was employed by the postal service?

MR. CUNNINGHAM: We'll connect it up.

MR. SHER: To what?

THE WITNESS: Also, at the grocery store there was a union.

MR. CUNNINGHAM: To the type of First Amendment activities that she's accusing your clients of attempting to disrupt.

MR. SHER: That goes to Redwood Summer or to Earth First!, not to what she may have done early in her life.

MR. CUNNINGHAM: Q. When you joined Redwood Summer -- I mean, Earth First! -- did you have experience in organizing? In advocacy?

A. Extensive.

Q. And what was the nature of that experience?

MR. SHER: Objection. Same objection.

MR. CUNNINGHAM: Q. Go ahead.

MS. RODRIGUE: Also, objection. Relevance.

THE WITNESS: My primary organizing experience was in the union movement, both in the Retail Clerks Union when I worked at the grocery store, and in the American Postal Workers Union at the Post Office.

MR. CUNNINGHAM: Q. And what jobs did you have with the union?

MS. RODRIGUE: Objection. Relevance.

MR. CUNNINGHAM: Q. Just briefly.

A. I was shop steward at both locations, and I helped organize and lead strikes at both places.

Q. To your knowledge, before you came to California, did any of your activities ever come to the attention of the FBI?

MR. SHER: Objection, Counsel. It calls for speculation.

MR. CUNNINGHAM: Q. To your knowledge.

A. Yes.

MR. SHER: No, no. Not to her knowledge, Counsel.

THE WITNESS: Yes.

MR. CUNNINGHAM: Yes. To her knowledge.

THE WITNESS: The answer is yes.

MR. SHER: You're calling for speculation.

THE WITNESS: It's not speculation. I have the files.

MR. SHER: All right. We're going to suspend this testimony until we get the magistrate on the line, and we're going to get some instructions on how this is to go. If this is evidence, then the witness is not permitted to do other than answer the question.

MR. CUNNINGHAM: She's answering the question, if you'd let her.

MR. SHER: If you'd confine your questions to admissible testimony, we would.

MR. CUNNINGHAM: Why would that not be admissible, Joe?

MR. SHER: What; speculation?

MR. CUNNINGHAM: She's not speculating.

MR. SHER: About what the FBI may or may not have --

MR. CUNNINGHAM: I said to her knowledge.

THE WITNESS: Joe, I've requested and got my files.

MR. CUNNINGHAM: She's allowed to state the basis of her knowledge.

MR. SHER: Uh-uh. That's not knowledge, Counsel. It's nothing that she saw, heard, smell, felt.

THE WITNESS: Joe, you're not listening to me.

MR. SHER: Nothing she personally experienced.

THE WITNESS: I got my files.

MR. CUNNINGHAM: She has her files that she's gotten from the FBI.

MR. SHER: I don't care what's written in

*8aaa That's the first demonstration I was involved in.

Q. And after that, where did that activity lead you to? What further activities were you led into with Earth First!?

A. James Watt came to speak in Ukiah, and we had another demonstration in which we dressed up in costumes and sang songs and went to protest his environmental stance at the conference where he was there.

Q. What was the mission of Earth First! at the time you joined up with it? How did they see themselves? What did they set themselves up as?

MR. SHER: Objection. The question's compound, and I'm not sure that --

MR. CUNNINGHAM: It's all intended to be the same question.

Q. Describe the organization; what it was attempting to do.

MR. SHER: Well, wait a minute, Counsel. If you're asking her to testify as to her understanding, that may be one thing. But I'm not sure that you're not asking her to testify in some capacity on behalf of the organization, and we would object to that.

MR. CUNNINGHAM: Q. Just what you learned and what you came to understand about Earth First!

A. That Earth First! was an environmental group that used what they call direct action to try to bring attention to and halt destruction of the environment, and that it was a decentralized group, so that each local Earth First! chapter, although they're not actually called that -- but each local Earth First! chapter set its own agenda, and our agenda primarily concerned the redwoods.

Q. And how many people were associated with Earth First! in this area at the time you joined up, roughly, to your knowledge?

A. When I first joined, there was about 200 people on the mailing list, and 25 would show up at a meeting.

Q. And besides the kind of demonstrations that you described a minute ago, what other activities did they engage in, did the group engage in?

A. The first prolong