Free Reply Memorandum - District Court of California - California

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JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ABRAHAM A. SIMMONS (SBN 146400) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (415) 436-7264 Facsimile: (415) 436-6748 Email: [email protected] Attorneys for Federal Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 13 Plaintiffs, 14 v. 15 16 17 Defendants. 18 19 I. INTRODUCTION 20 There is an deep and abiding chasm between the evidence plaintiffs have presented and 21 the contentions they conjure up in their memoranda. 22 It is fundamental that in response to a motion for summary judgment, plaintiffs bear the 23 burden of presenting evidence, not simply argument, in support of their allegations. Plaintiffs' 24 affidavits and other evidence must set forth specific facts showing that a genuine issue of 25 material fact exists. See Fed. R. Civ. P. 56(e). Here, plaintiffs have not mustered sufficient 26 evidence to support their most basic theories and contentions with respect to their investigation27 related claims; accordingly, defendants now are entitled to summary adjudication of such claims. 28 SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4894 SBA FEDERAL DEFENDANT SETH McMULLEN'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT Fed.R.Civ.P. 56 Date: Time: Place: Before: September 16, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong

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Defendant also is entitled to summary adjudication with respect to most of plaintiffs' excessive force claims. Special Agent McMullen is entitled to summary adjudication of plaintiffs' claims that 1) he failed to knock and announce his presence before executing the search warrant, 2) he damaged plaintiffs' personal property and 3) he improperly used a firearm during the execution of the search warrant.1 With respect to these claims, plaintiffs have either again failed to present sufficient evidence or failed to present the appropriate rule for liability. In either case, defendant is entitled to summary adjudication with respect to each of these claims. In sum, this Court should reject plaintiffs' invitation to substitute argument for evidence; plaintiffs are not entitled to prevail on account of their tortured interpretation of evidence. Plaintiffs also must apply the appropriate rules for each of their claims. Federal defendant Seth McMullen respectfully requests that this court grant his motion for summary adjudication on the above-described claims.2 II. ARGUMENT

Plaintiffs have presented insufficient evidence to prevent summary adjudication with respect to their investigation-related claims. In support of his motion for summary judgment, Federal Defendant McMullen presented

16 evidence that his affidavit in support of arrest and search warrants is supported by ample 17 probable cause, and that in any event, the decision of Sonoma County District Attorney Jamar to 18 file a criminal complaint operates to break the chain of causation to Plaintiffs' damages and the 19 20 21 22 23 24 25 26 27 28 Defendants acknowledge that plaintiffs have submitted declarations that, on the current record, raise a triable issue of fact with respect to some aspects of their excessive force claims. Specifically, plaintiffs have signed declarations claiming to have witnessed Special Agent McMullen place his boot on Chieko Strange's head and then lift Robert Keane by the chain of his handcuffs. Although these allegations ultimately will be proven to be untrue, the federal defendant acknowledges that the signed declarations of the plaintiffs are, on this record, sufficient to raise a triable issue. Federal Defendant Seth McMullen also has moved, in the alternative, for dismissal of plaintiffs' claims filed pursuant to 42 U.S.C. § 1983. As with the moving papers, Special Agent McMullen joins in the reply filed by Task Force Officer John Silva. The reply is incorporated as though set forth herein in its entirety. 2
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decision Superior Court Judge Boyd to issue the warrants operates as a bar to liability in this case. In response, plaintiffs no longer contend that the affidavit, as written, lacks probable cause. Plaintiffs also do not dispute that the affidavit, if otherwise proper, was signed by the judge and therefore liability would ordinarily be precluded. Nevertheless, plaintiffs contend that these principles all are trumped for two reasons: first, because "a reasonable jury could find McMullen liable for obtaining the warrants through judicial deception" (Opposition at 1:5-7); second, because the district attorney did not exercise independent judgment when deciding whether to prosecute the case. Both contentions are meritless. 1. Plaintiffs' claims of judicial deception have no support in the evidence.

In Hervey v. Estes, 65 F.3d 784 (9th Cir.1995), the Ninth Circuit clarified the mechanics of a judicial deception claim and spelled out the burden a plaintiff must meet in order to survive a defendant officer's motion for summary judgment on the ground of qualified immunity. The Ninth Circuit held in that case that the plaintiff must 1) make a "substantial showing" of deliberate falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty, the challenged action would not have occurred. Id. at 788-89. The showing necessary to get to a jury therefore is the same as the showing necessary to get an evidentiary hearing under the criminal case of Franks v. Delaware, 438 U.S. 154, 171-72. Liston v. County of Rivierside, 120 F.3d 965, 973 (9th Cir. 1997). The district court properly reviews the totality of the circumstances to determine whether plaintiff has made a substantial showing that any such errors are the result of deliberate falsehood or reckless disregard. Here, there is a substantial disconnect between plaintiffs' argument and their evidence. On the one hand, plaintiffs claim that McMullen misrepresented in his affidavit that McGuigan made a positive identification of Keane. On the other hand, the evidence is clear that McMullen's affidavit properly describes his encounter with McGuigan. The affidavit states: On November 30, 2006, SAs McMullen and Hoyt went to the Mail Depot in Petaluma and showed McGuigan a photo of a possible suspect. McGuigan positively identified the individual in the 3

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photo as the person who dropped the package off a day earlier for shipment to the New Jersey address. The person McGuigan identified was Robert Carl Patrick KEANE, 307 North Ferndale Avenue, Mill Valley, California 94941-3421 . . .. McMullen Decl., Exh. 2 (Document No. 16-3 filed Jan. 14, 2008). Similarly, the additional

4 evidence submitted by plaintiffs makes clear McGuigan did, in fact, identify Keane. McGuigan 5 states in her declaration that after she looked at the photograph, she told McMullen, "it looked 6 like the man who had attempted to mail the package . . .." McGuigan Decl. at ¶ 27. Thus, 7 plaintiffs' claims of false and misleading testimony are meritless. 8 a. 9 10 In support of their contention that Special Agent McMullen's affidavit contains false 11 statements, plaintiffs attempt to manufacture seven distinctions between the information 12 provided in the affidavit and the other facts in the record. Each of plaintiffs' seven arguments 13 must fail either because 1) plaintiffs have failed to make a substantial showing that the 14 distinctions exist at all or because 2) the distinctions, even if they did exist, have not been shown 15 to be the result of deliberate falsehood or reckless disregard for the truth, or 3) both. 16 First, plaintiffs claim McMullen should not have used the phrase "positively identified" 17 in his affidavit. This argument apparently is based upon plaintiffs' belief that McGuigan's 18 identification of Keane was not certain. Plaintiffs, however, do not present any evidence 19 regarding the certainty of McGuigan's identification. A plaintiff cannot forestall summary 20 judgment by merely asserting facts, instead, such facts must find support in the evidence and 21 must be "based on more than mere speculation, conjecture, or fantasy." O.S.C. Corp. v. Apple 22 Computer, Inc., 792 F.2d 1464, 1466-67 (9th Cir. 1986) (quoting Barnes v. Arden Mayfair Inc., 23 759 F.2d 676, 681 (9th Cir. 1985)). In addition, where plaintiffs invite the Court to extrapolate 24 from unsupported facts, neither a plaintiff's beliefs, nor her lawyer's arguments can substitute 25 for evidence. This Court "need not draw all possible inferences in [plaintiffs'] favor, but only all 26 reasonable ones." See Villiarimo v. Aloha Island Air, Inc., 281 F. 3d 1054, 1065 n. 10 (9th Cir. 27 28 4 Plaintiffs' seven arguments regarding inconsistencies are supported by neither a substantial showing of misinformation nor evidence of deliberate falsehood or reckless disregard for the truth.

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2002). Here, there is no evidence that a positive identification (under any definition) was not made. Specifically, nowhere in her declaration does McGuigan deny that she made a positive identification of Keane when Special Agent McMullen showed her the photograph. For all their protestations and argumentation, plaintiffs present no evidence that McGuigan failed to make a positive identification.3 Second, plaintiffs claim McMullen "did not make any efforts to ascertain how certain the identification was." Opposition at 9:2-3. Plaintiffs appear to have made up this fact for the convenience of bolstering their argument. Plaintiffs cite McGuigan's declaration for this proposition, however, the declaration does not suggest in any way that her identification of Keane was in any way equivocal. In fact, McGuigan states in her declaration that she cannot remember whether DEA agents asked her how certain she was. McGuigan Decl. at ¶ 28. This directly contradicts plaintiffs' argument. There is no justification for plaintiffs' attempt to stretch the facts so as to support a claim that McGuigan's identification was somehow equivocal. Third, plaintiffs complain that the picture shown to McGuigan may have had Keane's address on it. Significantly again, McGuigan does not state that she saw an address, that she was influenced by the address or that she made a connection between an address on the picture (if there) and the return address on the package. When a plaintiff relies on circumstantial evidence to establish improper motive, that evidence should be "specific and substantial" in order to defeat a motion for summary judgment. Cf. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005) (in Title VII case, use of circumstantial evidence to discredit employer's legitimate non-discriminatory reasons must be specific and substantial); see also Stegall v.

Plaintiffs also attempt to discredit the identification on the ground that their expert believes a "positive identification" means more to DEA agents than to the rest of the population. Generally, the admissibility of this type of expert testimony is strongly disfavored by most courts. United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (quoting United States v. Sims, 617 F.2d 1371, 1375 (9th Cir. 1980)). Defendant respectfully requests that this Court refuse to consider this evidence because it is neither scientific nor reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 5

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Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir.2004). Here, the absence of facts to support plaintiffs' theory makes clear that plaintiffs cannot present sufficient evidence of an erroneous affidavit­ much less of deliberate falsehood or reckless disregard for the truth. Fourth, plaintiffs state that Special Agent McMullen's affidavit is false because it does not state McGuigan was told before she viewed Keane's photograph that she was about to view a "possible suspect." Here, too, the evidence does not support plaintiffs' claim of wrongdoing. The affidavit does state that McGuigan was shown "a photo of a possible suspect." McMullen Decl., Exh. 2 (Document No. 16-3 filed Jan. 14, 2008). This is clear enough. Moreover, although the affidavit does not specifically point out when McGuigan was told the photograph was of a possible suspect, neither does any other evidence in this case­ here again, noticeably absent from the McGuigan declaration is any mention of this subject at all. In sum, plaintiffs' argument finds no support in the record. Fifth, plaintiffs argue that Special Agent McMullen's affidavit was false because it did not disclose the details of the Petaluma Police Department's separate investigation and their separate attempts to identify Keane. Plaintiffs claim that McGuigan concluded Keane was none of the person presented in a photo line up presented by the Petaluma Police Department and that this fact was not in McMullen's affidavit. Significantly, there is no evidence Keane was in the pre-affidavit photo lineup. In any event, and more significantly, there is no evidence Special Agent McMullen was made aware of the alleged additional photo lineup. Certainly, the McGuigan declaration does not suggest that she shared the fact of this lineup with McMullen. Plaintiffs simply cannot establish Special Agent McMullen attempted to deceive any judicial officer when completing his affidavit. Sixth, plaintiffs argue Special Agent McMullen's affidavit was false because it did not state that McGuigan provided the special agent with sender information from a previous attempt to deliver drugs. Opposition at 10. Specifically, plaintiffs claim that the affidavit should have included the facts that the sender of the previous package was identified as Bob Hart and that the sender provided a particular telephone number. Here again, the evidence does not support the 6

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argument plaintiffs are attempting to make. Special Agent McMullen's affidavit states, "McGuigan also said that on May 31, 2006, another package, with an unknown address, was sent to 36 Sandy Point Drive, New Jersey 08723." This information is accurate. Moreover, the additional evidence provided by plaintiffs provides no details regarding the information McGuigan provided to the DEA. Accordingly, there is no evidence to support plaintiffs' bald assertions that Special Agent McMullen was aware of, and failed to share, additional material facts. Seventh , plaintiffs claim that Special Agent McMullen should have disclosed that Brian Keane, who was arrested in New Jersey, never identified plaintiff Keane as a relative. This is one of plaintiffs' more bizarre arguments. Brian Keane was not a trustworthy individual. There is no dispute in the record that at the time Special Agent McMullen completed his affidavit, he was aware that Brian Keane 1) claimed the package contained a bomb and nevertheless had put the package in the seat next to his daughter, 2) claimed he was returning the package (containing a bomb) to the Federal Express facility even though the facility was not in the direction Keane was driving and 3) both denied and then admitted during the course of his arrest that he had a brother. Simmons Decl., Exh. 1(d). In light of all this, it is puzzling that plaintiffs insist it was deceitful for Special Agent McMullen to omit from his affidavit Brian Keane's statement that he did not know anyone in California. For all these reasons, none of plaintiffs' seven arguments regarding alleged deficiencies in Special Agent McMullen's affidavit constitutes a "substantial showing." Moreover, plaintiffs have utterly failed to establish that any of these deficiencies, even if they existed, were either deliberate or reckless. For this additional reason, plaintiffs have failed to present sufficient evidence to prevent summary adjudication of the investigation-based claims. Cf. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir.2001) (the intent to deceive must be a "substantial" or "motivating" factor in the decision to omit the facts); see also Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989).

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b.

Plaintiffs have not demonstrated that but for any of the alleged errors, probable cause would be lacking.

Plaintiffs may prevail only if they can demonstrate the materiality of the allegedly 3 improper statements to the ultimate determination of probable cause." Hervey v. Estes, 65 F.3d 4 784, 789 (9th Cir.1995). Even if plaintiffs had presented substantial evidence on the issue of 5 materiality, the question remains one for the court. Id. Here, as noted above, this Court should 6 conclude that plaintiffs have failed to establish a substantial showing with respect to any of the 7 above-addressed seven deficienies. If this court should determine a substantial showing was 8 made and that there is sufficient evidence that the erroneous fact or omission was deliberate or 9 reckless, the Court must nonetheless decide whether the fact would have altered the existence of 10 probable cause. Defendant respectfully submits that none of plaintiffs' alleged deficiencies raise 11 to this level and therefore, defendant is entitled to summary adjudication on the investigation12 related claims. 13 2. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs claim that the Sonoma County District Attorney did not exercise judgment has no support in the record.

In his moving papers, Federal Defendant McMullen argued that the prosecutor's independent decision was a superseding or intervening cause of plaintiffs' injury, precluding suit against the officials who made an arrest or procured a prosecution. Motion at 19-20 citing Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008). Defendant submitted the records of the criminal proceeding against Keane as evidence of the decision. In response, Plaintiffs argue that the Sonoma County prosecutor that decided to charge plaintiff Keane did not exercise independent judgment and claim that defendant produced "no evidence that the Sonoma County District Attorney undertook any `independent' investigation before deciding to prosecute." Opposition at 13:25-26. Plaintiffs have mis-allocated the burdens of the parties at this point in the litigation. As set out in the recently-decided case of Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) It is a well-settled principle that the "[f]iling of a criminal complaint immunizes investigating officers ... from damages suffered thereafter because it is presumed that the prosecutor filing 8

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the complaint exercised independent judgment in determining that probable cause for an accused's arrest exists at that time." Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.1981) ( Smiddy I ). A § 1983 plaintiff may rebut this presumption, however, by "showing that the district attorney was pressured or caused by the investigating officers to act contrary to his independent judgment." Id. at 266. Such evidence must be substantial, see Newman v. County of Orange, 457 F.3d 991, 994-95 (9th Cir.2006) (rebuttal evidence cannot consist merely of a plaintiff's own account of events) . . .. Accordingly, Special Agent McMullen is entitled to a presumption that the prosecutor used independent judgment. It is up to plaintiffs to present evidence to challenge the presumption. This is not a case in which the evidence demonstrates the prosecutor's judgment was "based almost entirely on the police investigation adjudged to be deficient by the jury." Id. citing Smiddy v. Varney, 803 F.2d 1469, 1472 ( 9th Cir. 1986); Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir.1991) (parentheticals omitted). Instead, plaintiffs again present little or no evidence and request that the court join in their presumption that the prosecutor acted improperly. Here again, the court should decline plaintiffs' invitation; in the absence of evidence to the contrary, the presumption that the district attorney and the deputy district attorney exercised there own judgment should be employed and defendant is entitled to summary adjudication. B. Plaintiffs have presented insufficient evidence to prevent summary adjudication with respect to some of their excessive force claims. Special Agent McMullen is entitled to summary adjudication of plaintiffs' claims that 1) he damaged plaintiffs' personal property, 2) he failed to knock and announce his presence before executing the search warrant and 3) he improperly used a firearm during the execution of the search warrant. With respect to plaintiffs' property claims, there is simply no evidence that McMullen is responsible for any damages. Since the inception of this litigation, plaintiffs have taken a "one big government" approach to suing Special Agent McMullen. Plaintiffs have simply failed to appreciate the personal nature of this lawsuit and the fact that the damages come solely from defendant. It is for this reason that the courts have recognized that plaintiffs may not lump 9

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multiple defendants together­ plaintiffs must differentiate their allegations when suing more than one defendant and inform each defendant separately of the allegations surrounding his alleged participation in the wrongful conduct. Swartz v. KPMG LLP, 476 F.3d 756, 764 -765 (9th Cir. 2007) quoting Haskin v. R.J. Reynolds Tobacco Co., 995 F. Supp. 1437, 1439 (M.D. Fla. 1998). Here, no evidence suggests Special Agent McMullen actually touched any of the personal property about which plaintiffs are complaining. Special Agent McMullen has denied any wrongdoing. In the absence of evidence, Special Agent McMullen is entitled to judgment. Plaintiffs also have presented insufficient evidence regarding the failure to knock and announce. Plaintiffs only state that plaintiff Keane "normally can hear conversation outside my closed front door." His testimony is that he did not hear defendant knock and announce his presence until later­ not that it did not occur. In the absence of evidence to the contrary, defendant McMullen is entitled to summary adjudication with respect to plaintiffs' claim that he failed to knock and announce his presence before entering. Finally, Special Agent McMullen is entitled to judgment regarding plaintiffs' claim that Special Agent McMullen improperly used a firearm. The case law simply contradicts the assertions of plaintiffs' counsel (and their retained consultant) regarding the propriety of entering a home to execute a search warrant. See, e.g., Curiel v. County of Contra Costa, 2007 WL 2330320 (N.D.Cal., Aug. 13, 2007). CONCLUSION Defendant Seth McMullen is entitled to summary adjudication on all plaintiffs' investigation-related claims and on plaintiffs claims that the federal defendant 1) damaged plaintiffs' personal property, 2) failed to knock and announce his presence before executing the search warrant and 3) improperly used a firearm during the execution of the search warrant. Respectfully submitted, JOSEPH R. RUSSONIELLO United States Attorney Dated: September 2, 2008 /s/ ABRAHAM A. SIMMONS Assistant United States Attorney 10