Free Memorandum in Opposition - District Court of California - California

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Michael J. Coffino (SBN 88109) Email: [email protected] James E. Heffner (SBN 245406) Email: [email protected] REED SMITH LLP Two Embarcadero Center, Suite 2000 San Francisco, CA 94111-3922 Mailing Address: P.O. Box 7936 San Francisco, CA 94120-7936 Telephone: Facsimile: +1 415 543 8700 +1 415 391 8269

Attorneys for Plaintiffs Robert Carl Patrick Keane and Chieko Strange

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

REED SMITH LLP

ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs,

No.: C 07 4894 SBA PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT JOHN SILVA'S MOTION FOR SUMMARY JUDGMENT Date: Time: Place: Before: September 16, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong

SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, Defendants.

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TABLE OF CONTENTS I. II. INTRODUCTION .....................................................................................................................1 PLAINTIFFS' STATEMENT OF THE FACTS.......................................................................1 A. B. C. D. III. IV. State and Federal Law Enforcement Conduct an Investigation.....................................1 Law Enforcement Obtain and Execute A Search Warrant at Plaintiffs' Home..............................................................................................................................2 Mr. Keane is Arrested, But the Case is Dismissed "In the Interests of Justice."..........................................................................................................................5 Procedural History and Discovery Issues ......................................................................5

LEGAL STANDARD................................................................................................................6 ARGUMENT.............................................................................................................................7 A. Silva Is Liable for the Constitutional Violations as an Integral Participant to Both the Search and Arrest ........................................................................................7 1. Silva Was an Integral Participant in the Illegal Search of Plaintiffs' Home and Attendant Excessive Force. .............................................8 a. b. 2. Silva Was More Than a Mere Bystander to the "Dynamic Entry" and Search of Plaintiffs' Home ..................................................8 Silva Continued in His Actions Despite Knowing that the Unconstitutional Acts were Occurring or Would Occur........................9

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Silva Was an Integral Participant in the Unconstitutional Arrest of Mr. Keane ........................................................................................................11 a. b. Silva Was More Than a Mere Bystander to the Unconstitutional Arrest of Mr. Keane. ................................................11 Silva Continued in His Actions Despite Knowing that the Acts that Constituted an Unconstitutional Arrest Would Occur....................................................................................................11

B.

Silva Acted Under the "Color of State Law.................................................................12 1. 2. Silva, a Petaluma Police Officer, Acted Under the Color of State Law ..................................................................................................................12 Silva Acted Under the "Color of State Law" Even if he Was Acting as a DEA Agent at the Time of the Raid..............................................13 a. The Sole Authority for Silva to Search Plaintiffs' Home and Arrest Mr. Keane Came from the State of California ...................14

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b.

Silva Was a "State Actor" Because Plaintiffs' Constitutional Rights Were Violated by Joint Participation Between Silva and the State.................................................................14

V.

ALTERNATIVELY, THE COULD SHOULD DENY THE MOTION BECAUSE PLAINTIFFS HAVE NOT HAD AN ADEQUATE OPPORTUNITY TO GATHER DISCOVERY ...................................................................................................16 A. B. C. The Rule 56(f) Standard...............................................................................................16 Defendants Have Thwarted Plaintiffs' Diligent Discovery Efforts.............................18 Additional Considerations Governing Rule 56(f)'s Applicability Weigh in Favor of Granting Plaintiffs' Request..........................................................................19 Plaintiffs Have Not Had the Opportunity to Pursue Sufficient Discovery .........................................................................................................19 Rule 56(f) Relief is Appropriate Because Plaintiffs Have Requested But Not Yet Received Probative Information That Is Solely in Defendants' Possession ....................................................................19

2.

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3. VI.

The Material Sought is the Subject of Outstanding Discovery Requests ....................20

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CONCLUSION........................................................................................................................21

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TABLE OF AUTHORITIES CASES Allstate Insurance Co. v. Morgan, 806 F. Supp. 1460 (N.D. Cal. 1992).......................................................................................16 Arizona v. Maricopa County Medical Soc., 457 U.S. 332 (1982)..................................................................................................................6 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)............................................................................................................6, 16 Boyd, 374 F.3d at 280 ............................................................................................................... passim Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439 (9th Cir. 1986) ................................................................................................17 Burlington Northern Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767 (9th Cir. 2003) ..................................................................................................19 Cabrera v. Martin, 973 F.2d 73 (9th Cir. 1992) ..............................................................................................13, 14 Castaneda v. Douglas County, 2007 U.S. Dist. LEXIS 3471 (D. Nev. 2007), citing, Boyd, 374 F.3d at 780 ......................7, 8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)..................................................................................................................6 Chuman v. Wright, 76 F.3d 292 (9th Cir. 1996) ......................................................................................................7 City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268 (8th Cir. 1988) ....................................................................................................6 Copelan v. Croasmun, 84 Fed. Appx. 762, 764 (9th Cir. 2003) ....................................................16 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)................................................................................................................15 Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortgage Corp., 525 F.3d 822 (9th Cir. 2008) ..................................................................................................17 Howerton v. Gabrica, 708 F.2d 380 (9th Cir. 1983) ..................................................................................................15 James v. Sadler, 909 F.2d 834 (5th Cir. 1990) ....................................................................................................8 McDade v. West, 223 F.3d 1135 (9th Cir. 2000) ..........................................................................................12, 13
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Melear v. Spears, 862 F.2d 1177 (5th Cir. 1989) ..........................................................................................7, 8, 9 Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003) ................................................................................................10 Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) ..................................................................................................20 Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157 (2nd Cir. 1999) ...................................................................................................6 Terrell v. Petrie, 763 F. Supp. 1342 (E.D. Va. 1991) ............................................................................13, 14, 16 United States v. Watson, 423 U.S. 411 (1976 (Powell, J., concurring) ..........................................................................12 Visa International Service Association v. Bankcard Holders of America, 784 F.2d 1472 (9th Cir. 1986) ................................................................................................20 STATUTES 21 U.S.C. § 873..............................................................................................................................14 42 U.S.C. § 1983..........................................................................................................................1, 5 Fed. Rule Civ. Proc. 56(f)..............................................................................................................16

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I.

INTRODUCTION

In his motion for summary judgment, Defendant John Silva ("Silva") attempts to escape liability by claiming a minimal role in the unlawful investigation and arrest of Plaintiff Carl Keane and the equally unlawful raid on Plaintiffs' home. Contrary to these assertions, however, Silva's participation was significant. He was present for and integral to the execution of the raid. He was personally involved in the post-raid interrogation of Plaintiffs, and his active participation and involvement in preparatory strategic discussions placed him on notice of the unlawful nature of the raid on the home. Further, as an officer cloaked with the authority of the Petaluma Police Department, Silva acted under the color of state law, subjecting him to liability under 42 U.S.C. § 1983. Accordingly, his motion should be denied in full. Alternatively, Plaintiffs are entitled to further discovery to determine the full extent of Silva's involvement in the unlawful home invasion. In either case, the Court should deny the motion. II. PLAINTIFFS' STATEMENT OF THE FACTS

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Plaintiffs employ a uniform statement of facts for their opposition to the pending motions for summary judgment. For the convenience of the Court, however, we repeat the statement of facts here. On November 29, 2006, an unknown person tried to mail a package to Kerry Keane in Brick, New Jersey from the Mail Depot in Petaluma, California. The package had a return address of "C. Keane, 307 N. Ferndale Ave., Mill Valley, CA," the location of Plaintiffs' home. Although suspicious, the owner of the Mail Depot, Maureen McGuigan ("McGuigan") accepted the package for shipment. McGuigan later opened the package to discover six pounds of marijuana. She brought the package to Officer Jim Stephenson of the Petaluma Police Department, who interviewed her for almost an hour. Declaration of Maureen McGuigan ("McGuigan Decl.") ¶ 15. A. State and Federal Law Enforcement Conduct an Investigation Officer Stephenson and another officer later visited the Mail Depot. Id. ¶ 18. They questioned McGuigan for about twenty-five minutes and asked her to identify the person who attempted the shipment from a "photo array" of six individuals. Id. ¶¶ 19-20. She could not. Id. ¶

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21.1 The same day, the Petaluma police officers contacted the DEA, and the following day, two DEA agents, including Defendant McMullen, visited the Mail Depot. The investigation that followed is charitably characterized as reckless and included manipulation of evidence to produce a search warrant. For example, rather than conduct a standard six-pack photo array, McMullen showed McGuigan an enlarged photocopy of Mr. Keane's California state identification card after expressly identifying him as a "possible suspect." Id. ¶¶ 25, 26; Declaration of Seth McMullen in Support of Motion to Dismiss and for Other Relief ("McMullen Decl.") ¶ 4. Worse, the photocopy was not limited to a picture, but also included Mr. Keane's name and home address--information suggestively matching the return address of the aborted shipment. Keane Decl. ¶ 47, Exh. D. After looking at the highly suggestive photocopy for approximately thirty seconds, Ms. McGuigan concurred with the suggestion that the man in the photocopy "looked like" the person who attempted to mail the package. McGuigan Decl. ¶ 27. McMullen did not press McGuigan for any degree of certainty and left after approximately twenty-five minutes. Id. ¶¶ 24, 28. McMullen sent the package to the Brick Township Police in New Jersey for a "controlled delivery," which resulted in the arrest of Brian and Suzanne Keane on December 1, 2006. The Brick investigation did not reveal any familial or other relationship between the New Jersey Keanes and Mr. Keane. On the contrary, Brian Keane revealed that his brother Chris was the only relative matching "C. Keane." Declaration of Abraham Simmons in Support of Motion for Summary Judgment ("Simmons Decl.") Exh. 1(c). Further, New Jersey investigators determined Mr. Keane and Brian Keane were born only nine months and twenty two days apart, which ruled out the possibility they were brothers. See Simmons Decl. Exh. 1(b); McMullen Decl. Exh 2. B. Law Enforcement Obtain and Execute A Search Warrant at Plaintiffs' Home Defendants evidently did not conduct any additional investigation the following two weeks. Then, on December 15, 2006, with no new information, McMullen signed an affidavit for a search
1 Defendants have refused to produce this "photo array," which is directly responsive to our discovery requests. Declaration of James Heffner ("Heffner Decl.") ¶ 2. For that reason, we do not know whether the original six-pack photo array contained a photo of Mr. Keane.

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warrant of Plaintiffs' home. McMullen Decl. Exh. 2. As we explain below, the affidavit contained major falsehoods and is grossly misleading in several respects. To illustrate, the affidavit falsely states that Ms. McGuigan made a "positive identification" based on a photo. Id. As shown, she never made a "positive identification." Further, the document was not a photo, but was instead an unredacted version of Mr. Keane's state identification card including his name and address matching that on the package, and McMullen identified the photo as that of a "possible suspect" prior to displaying it. McGuigan Decl. ¶ 25; McMullen Decl. ¶ 4. McMullen also swore to the existence of a prior shipment with no return address to the same New Jersey address. McMullen Decl. Exh. 2. This too was false. In truth, as we explain below, there was a return address and a pattern of identity theft in play. McGuigan Decl. ¶ 10, 11, 13, Exh. B. Further, McMullen withheld details of the Brick, New Jersey investigation to create false and misleading impressions. Most striking, he failed to tell the Magistrate that Brian Keane, in New Jersey, had a brother named Chris Keane, sharing the initials "C. Keane." Simmons Decl. Exh. 1(d). On December 19, at approximately 7:30 a.m., McMullen and others arrived at Plaintiffs' two bedroom Mill Valley loft while Plaintiffs were getting ready for work. Keane Decl. ¶¶ 6-7. The terrorizing raid began with a few seconds of commotion followed by a solitary bang outside the front door.2 Id. ¶ 7. Mr. Keane immediately looked over the loft railing where he had an unobstructed view out the front glass door. Id. ¶ 8, Exh. B. He saw a man dressed in black crouching outside the door who, on making eye contact with Mr. Keane, immediately shouted "There he is!" and burst through the front door with a rifle drawn and trained on Mr. Keane. Id. ¶¶ 9, 10. At least two similarly dressed men immediately followed, storming in with rifles trained on Plaintiffs, shouting "Where are your weapons?!" and "Get down on the floor!" Id. ¶¶ 12-13. At no time during this initial intrusion did these armed individuals identify themselves as law enforcement. Id. ¶ 17; Declaration of Chieko Strange ("Strange Decl.") ¶¶ 7, 10. Indeed, fearing a home invasion, Ms. Strange screamed for Mr. Keane to call the police. Strange Decl. ¶ 8. The

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2 Markings on the wood deck suggest the bang occurred when someone dropped something onto the deck floor (presumably a battering ram of some sort).

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intruders stormed up the stairs screaming at Plaintiffs who, frightened and confused, dutifully complied. In response to requests to identify themselves, defendants screamed instead, "Where are your weapons?!" and "You know why we're here!" Keane Decl. ¶¶ 15-21. Despite the submissive compliance of their victims, Defendants tightly handcuffed Plaintiffs' hands, resulting in cuts to Mr. Keane's wrists. Id. ¶¶ 23, 26, Exh. C. They continued to train their weapons on Plaintiffs while they lay face down on the ground until both were cuffed. Id. ¶¶ 20, 22; Strange Decl. ¶ 13. At one point, still before the intruders had identified themselves, McMullen placed his boot on the head of the helpless and still-handcuffed Ms. Strange. Strange Decl. ¶ 13. Defendants left Plaintiffs laying face down for at least ten minutes. Keane Decl. ¶ 26. At one point, McMullen lifted Mr. Keane off of the ground by the chain between his handcuffs, resulting in pain and physical injury. Id. ¶ 26, Exh. C. During the search, McMullen and the officers unnecessarily damaged furniture and home fixtures. Keane Decl. ¶ 46. Co-defendant Paul Accornero ("Accornero") threatened Mr. Keane with imminent use of an aggressive search dog to "tear shit up," and the dog, while under Accornero's control, apparently damaged property. Id. ¶¶ 35, 46. After thirty minutes, Defendants brought the handcuffed Mr. Keane to the bathroom and made him sit on the toilet for an interrogation. Id. ¶ 27. At this sight, McMullen crudely remarked to co-defendant John Silva ("Silva") "Isn't this ironic?" It was not until this time Mr. Keane learned the purpose of the invasion. Id. ¶ 28. During the interrogation, McMullen attempted to elicit a confession by lying about evidence -- telling Mr. Keane his fingerprints were on the package. Id. ¶ 29. Mr. Keane offered to have his fingerprints taken. Id. After a fruitless interrogation of Mr. Keane, McMullen and Silva led the handcuffed Ms. Strange into the bathroom, forcing her to endure the same humiliation of sitting on a toilet while interrogated. Strange Decl. ¶ 17. Both interrogations revealed nothing linking Mr. Keane to the marijuana package or the New Jersey Keanes or provide any inkling he was involved in criminal activity. Keane Decl. ¶¶ 30-31; Strange Decl. ¶¶ 22-26. After the fruitless interrogations, defendants placed the handcuffed Plaintiffs on a couch while they continued the search. The abuse, however, continued. When Ms. Strange tried to ask
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Mr. Keane what was happening, McMullen yelled: "shut up or I will put your face against the wall!" Strange Decl. ¶ 28 . Plaintiffs watched in frozen silence as Defendants tore their home apart. Like the interrogations, the search, which lasted for well over an hour, produced no incriminating evidence. This is underscored by the "fruits" of the search: (1) paperwork regarding a recent cholesterol test (2) bank deposit slips and (3) a phone bill.3 Id. ¶ 32. Yet, after the search ended, McMullen bellowed: "he is going to jail!" Id. ¶ 33. C. Mr. Keane is Arrested, But the Case is Dismissed "In the Interests of Justice." Defendants proceeded to arrest Mr. Keane. Keane Decl. ¶ 40. As they escorted Mr. Keane from his home, Silva un-cuffed Ms. Strange so she could sign documents relating to the confiscated evidence. Strange Decl. ¶ 32. With signature in hand, Silva, without explanation, tossed the search warrant on the counter as he left ­ the first time Plaintiffs knew one existed. Id. ¶ 34. Defendants took Mr. Keane to the Sonoma County Main Adult Detention Facility where McMullen and Silva had a female officer search Mr. Keane in their presence. When Mr. Keane's pants fell to expose his buttocks, McMullen and Silva showed conspicuous amusement at the situation. Keane Decl. ¶ 43. The inappropriateness was so palpable that the female officer apologized to Mr. Keane for his understandable humiliation. Keane Decl. ¶ 43. The District Attorney's initial knee-jerk reaction was to charge Mr. Keane with unlawful possession of marijuana for the purpose of sale.4 Ultimately, an investigator asked McGuigan to view a proper six-pack photo array. Faced with a proper photo array, and despite the taint of the prior suggestive "identification," she identified someone other than Mr. Keane. Heffner Decl. Exh A. On March 13, 2007, prosecutors dismissed the case "in the interests of justice." D. Procedural History and Discovery Issues Plaintiffs filed this action in September 2007 pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their constitutional rights while acting under color of state law. McMullen and
3 Indeed, this evidence was exculpatory. The phone bills contained no calls to any area codes in or near New Jersey. The bank slips showed no deposits of any unusually large sums of money. 4 As will be discussed, the "decision" to prosecute Mr. Keane was apparently made on December 15, 2006, four days prior to the search of Mr. Keane's home.

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Silva moved to dismiss, arguing that as federal officers, they are immune under § 1983 exposure. Plaintiffs responded with a first amended complaint, adding allegations regarding liability under § 1983 and adding an alternative claim pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In response, concurrently with filing answers to the first amended complaint, McMullen and Silva moved for a more definite statement, but withdrew the patently frivolous motion after receiving Plaintiffs' opposition.5 III. LEGAL STANDARD

A party seeking summary judgment bears the burden of establishing that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. Rule Civ. Proc. 56(c). A party moving for summary judgment may not simply rely on bare, unsupported allegations "with a conclusory assertion that the [opposing party] has no evidence to prove his case." Celotex Corp. v. Catrett, 477 US 317, 328 (1986) (White, J., concurring). Rather, the movant must identify specific issues in the factual record where the opposing party has no evidence to support his or her case. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Thus, the moving party has a "heavy burden" to show that no reasonable trier of fact could dispute that she has proven the elements of her claims. Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2nd Cir. 1999). In ruling on a motion for summary judgment, the court must resolve all ambiguities, resolve all doubts as to the existence of a "genuine issue as to any material fact" and draw all reasonable inferences in favor of the nonmovant. Nationwide Life Ins. Co, 182 F.3d at 160. In essence, the nonmovant's "version of any disputed issue of fact is correct." Arizona v. Maricopa County Medical

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5 Although the Court made it clear discovery should proceed unimpeded, Defendants have stonewalled. For example, they have not produced a single document in response to Plaintiffs' Requests for Production, which we served more than two months ago. Heffner Decl. ¶¶ 2, 4. Plaintiffs expected to receive evidence showing the existence of an arrest warrant in Mr. Simmons' declaration where it stated that Exhibit 3(d) is "the abstract noting the issuance of the arrest warrant and Special Agent Seth McMullen's return of the arrest warrant" Simmons Decl. ¶ 4. Yet, Exhibit 3(d) is conspicuously absent from Mr. Simmons' declaration. Id. Similarly suspicious, Mr. Keane was never able to obtain the arrest warrant through discovery in the criminal proceeding. Keane Decl. ¶ 45. Plaintiffs have also been unsuccessful in obtaining the arrest warrant in response to a subpoena to the Sonoma County District Attorney and the Petaluma Police Department. Heffner Decl. ¶¶ 5, 6.

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Soc., 457 U.S. 332, 339 (1982). Here, Silva has failed to eliminate triable issues of material fact as to his involvement in the raid, search and arrest. Further, this Court should find that Silva's motion is premature and should be denied on that ground alone. IV. A. ARGUMENT

Silva Is Liable for the Constitutional Violations as an Integral Participant to Both the Search and Arrest Silva seeks to escape liability by suggesting he did not commit the unconstitutional acts

himself. John Silva's Motion for Summary Judgment ("Silva Motion"), at 9-12. This betrays a misunderstanding of the law and ignores relevant facts. Silva was an integral participant in the initial entry into, and subsequent search of, Plaintiffs home, as well as Mr. Keane's arrest. Accordingly, he is liable for these unconstitutional acts. In the Ninth Circuit, each officer who is an "integral participant" in a search may be liable for Fourth Amendment violations, even if the acts of the officer separately do not rise to the level of a constitutional violation. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004); see also Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). In other words, integral participation does not require that the officer's own actions rise to the level of a constitutional violation. Boyd, 374 F.3d at 780. For example, an officer who provides backup support while other officers conduct the search can be a "full, active participant." Id., citing Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989). Boyd is illustrative. There, officers were denied qualified immunity for the unconstitutional acts of others when they provided armed backup to an officer who committed an unconstitutional act (the use of a flash-bang device), participated in the search that followed the unconstitutional act and knew that the unconstitutional act was about to occur, but failed to object. Id. The Boyd analysis distills to two key factors. First, the officer must be more than a mere bystander, i.e., the officer must be performing some function necessary to the completion of a police goal. Castaneda v. Douglas County, 2007 U.S. Dist. LEXIS 3471, *16 (D. Nev. 2007), citing, Boyd, 374 F.3d at 780. Second, the officer must continue his actions despite knowing that the unconstitutional act is

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occurring or will occur. Castaneda, 2007 U.S. Dist. LEXIS 3471, *16-*17 (D. Nev. 2007).6 It is not necessary that the officer know that the actions in fact constitute unconstitutional acts. Id. Here, the facts demonstrate that each factor supports a finding that Silva is not entitled to summary judgment. 1. Silva Was an Integral Participant in the Illegal Search of Plaintiffs' Home and Attendant Excessive Force. a. Silva Was More Than a Mere Bystander to the "Dynamic Entry" and Search of Plaintiffs' Home Officers are not mere bystanders when they participate in "some meaningful way" with the search. Boyd, 374 F.3d at 780. Also illustrative is James v. Sadler, 909 F.2d 834 (5th Cir. 1990), which Boyd cites with approval. 374 F.3d at 780. There, police officers who remained armed on the premises throughout the search and detained individuals were held to be integral to the search and therefore potentially liable for the unconstitutional acts committed against the plaintiff by another officer. James, 909 F.2d at 837. Similarly, in Melear, 862 F.2d at 1186, which Boyd also cited with approval, 374 F.3d at 780, defendant's provision of armed backup while another officer entered the premises was enough of a "police function" to render the defendant more than a mere bystander. Id. Application of this law demonstrates that Silva was far more than a "mere bystander." Silva admits that he significantly participated in the execution of the search warrant. He admits that he was on the premises of the Keane residence during the unconstitutional raid. Supplemental Declaration of John Silva ("Supp. Silva Decl.") ¶ 4. He further admits to entering the home after the initial forced entry and participating in the interrogation of both Mr. Keane and Ms. Strange. Silva Supp. Decl. ¶ 5. Finally, it appears he would have been armed throughout the search and interrogation. Declaration of Michael Levine ("Levine Decl.") ¶ 28. Indeed, contrary to his declaration, Silva was heavily involved in the interrogation of both

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6 A third factor, not identified by Castaneda as key, but utilized in the analysis in Boyd, is whether the officer fails to object to the unconstitutional act. 374 F.3d at 780. Because this factor is related to the second factor, i.e., whether the officer continues in his actions, despite knowing that the acts constituting constitutional violations will occur, it is addressed as part of that analysis.

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Plaintiffs, asking approximately half the questions of each. Declaration of Robert Carl Patrick Keane ("Keane Decl.") ¶ 32; Declaration of Chieko Strange ("Strange Decl.") ¶ 26. Critically, the interrogation occurred while Plaintiffs were handcuffed in violation of their civil rights, yet Silva failed to object. Boyd, 374 F.3d at 780 (failure to object to an act that is later deemed to be a constitutional violation can give rise to liability). Further, Silva participated in attempts to coerce a confession from Keane by making false statements to him about evidence that did not exist. Keane Decl. ¶ 29. As such, Silva is more than a mere bystander based on his participation in the interrogation alone. Silva was also involved in the search for physical evidence. In fact, while interrogating Ms. Strange, Silva searched through bathroom drawers and questioned her about documents he found that related to Mr. Keane's family. Strange Decl. ¶ 20, 21. The evidence thus describes Silva as a critical player in the operation and someone who was involved with Plaintiffs throughout their detention. In sum, Silva was more than a mere bystander to the events that trampled upon Plaintiffs' civil rights. Melear, 862 F.2d at 1186 (holding officers that simply remained armed and participated in a search as generally being more than mere bystanders). Silva was undeniably present at, and participated in, the execution of the search warrant at the Keane residence and all of his actions were taken in furtherance of a "police goal." His only reason for being there was to execute the search warrant and obtain evidence to use in the prosecution of Mr. Keane. Silva cannot argue otherwise. b. Silva Continued in His Actions Despite Knowing that the Unconstitutional Acts were Occurring or Would Occur Similarly, Silva's actions meet the second key factor in the "integral participant" test. Silva continued in his actions despite knowing that the acts constituting excessive force were occurring or would occur. As discussed in Boyd, it does not matter whether he knew that the acts violated Plaintiffs' rights, but whether he continued his actions knowing the acts occurred or would occur. 374 F.3d at 780. First, Silva cannot and does not deny that he knew that both Keane and Strange were handcuffed for the duration of the search. Keane Decl. ¶¶ 22, 26, 27, 37; Strange Decl. ¶¶ 13, 15,
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17, 27. Indeed Silva declares that "by the time [he] entered the residence, plaintiffs were already handcuffed . . . ." Silva Decl. ¶ 4. In fact, Silva ultimately removed the handcuffs from Strange at the end of the hour-long search. Strange Decl. ¶ 32. This means that Silva was not only aware of the fact that both Plaintiffs were handcuffed, but that he did nothing to remedy the situation despite both Plaintiffs' submissive compliance with the officers. Indeed, Silva was interacting with Plaintiffs during these ongoing constitutional violations. See Meredith v. Erath, 342 F. 3d 1057, 1062-63 (9th Cir. 2003). Second, Silva was present during many of the other unconstitutional acts. As discussed above, Silva was present as both Mr. Keane and Ms. Strange were humiliatingly questioned, while handcuffed, on the toilet in their bathroom. Keane Decl. ¶ 27; Strange Decl. ¶ 17. Indeed, Silva willingly participated in the questioning of Mr. Keane and Ms. Strange at this time. Supp. Silva Decl. ¶ 5; Keane Decl. ¶ 27; Strange Decl. ¶ 17. Moreover, Silva was in the room when McMullen threatened Ms. Strange with the exclamation "Shut up or I will put your face against the wall!" Strange Decl. ¶¶ 27-30. Third, Silva entered Plaintiffs' home and participated in the search of the property and interrogation of both Mr. Keane and Ms. Strange, despite his knowledge that an unconstitutional entry and excessive force had been used. Under any normal DEA standard operating procedure, Silva would have been part of McMullen's pre-operational briefing that outlined the "dynamic entry plan" into the Plaintiffs' home. Levine Decl. ¶ 27. Indeed, this meeting provided Silva with the "information on tactics that [were] going to be used in entering the home and executing the search and arrest." Id. He therefore would have had knowledge of the overwhelming force that McMullen and the other officers planned to use in the entry of Plaintiffs' home. Silva states that he did not make "operational decisions," but he does not deny knowing that McMullen planned an entry into the home that utilized a show of "overwhelming force." Silva Supp. Decl. ¶ 3. Silva's continued participation also demonstrates he did not object to the unconstitutional acts that occurred. He entered the home despite the unconstitutional entry, and then searched the home and interrogated the Plaintiffs. If Silva objected to these practices, he would not have continued in his participation in these acts. Moreover, Silva was not heard to object to any of the
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tactics defendants employed during the search. Strange Decl. ¶ 36. Nor does Silva claim that he did. Silva was an "integral participant" in the constitutional violations that occurred during the entry into and search of Plaintiffs' home and is not entitled to summary judgment on Plaintiffs' excessive force claims. 2. Silva Was an Integral Participant in the Unconstitutional Arrest of Mr. Keane

This Court should also find that a triable issue of fact remains as to whether Silva was an integral participant in the unconstitutional arrest of Mr. Keane. As discussed above, the primary factors to consider are whether the officer was more than a mere bystander to the unconstitutional act and whether the officer continued in his participation of the act, despite his knowledge that the act would occur. Once again, it does not matter whether Silva knew that the act was unconstitutional, but only whether he knew the act itself would occur. Boyd, 374 F.3d at 280. a. Silva Was More Than a Mere Bystander to the Unconstitutional Arrest of Mr. Keane. Silva was a full and active participant in Mr. Keane's unconstitutional arrest. After the interrogations of Mr. Keane and Ms. Strange, Silva conferred with McMullen about whether they were going to arrest Mr. Keane. Strange Decl. ¶ 30. Silva took Mr. Keane, then handcuffed and under arrest, to Silva's vehicle. Keane Decl ¶ 40. Silva then transported Mr. Keane to the Sonoma County Main Adult Detention Center. Keane Decl. ¶ 42. Furthermore, Silva was present when Keane was humiliatingly searched by a female officer during Mr. Keane's booking at the Sonoma County Detention Center. Keane Decl. ¶ 43. Silva cannot argue, in this respect, that his role in Mr. Keane's arrest was that of a mere bystander. Silva acted in furtherance of a "police goal"--namely to arrest Mr. Keane. His significant participation in the arrest of Mr. Keane negates any assertion that he was simply a minor player in this unconstitutional act. b. Silva Continued in His Actions Despite Knowing that the Acts that Constituted an Unconstitutional Arrest Would Occur. Silva's actions here also meet the second criteria for integral participation because he continued in his actions despite knowing that an unconstitutional arrest would occur. It is axiomatic
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that "the original grounds supporting [a] warrant [can] be disproved by subsequent investigation.... In those cases the warrant [may] be[come] stale ... based upon discredited information." United States v. Watson, 423 U.S. 411, 432 n.5 (1976 (Powell, J., concurring). In this case, Silva was informed of, and discussed the complete lack of evidence discovered during the search. Strange Decl. ¶ 26. Despite personally looking through Ms. Strange's address book, Christmas cards and other personal effects, he found no evidence implicating her or Mr. Keane in any crime. Strange Decl. ¶¶ 20, 21. Silva presented an inventory of the search to Ms. Strange and asked her to sign it. Strange Decl. ¶ 32. This inventory contained no evidence implicating Mr. Keane in any sort of drug related activity and Silva would have had that knowledge. Yet, in spite of Silva's affirmative knowledge that an arrest of Mr. Keane could not be substantiated, he fully and actively participated in the arrest. Furthermore, Silva's continued participation in the arrest of Mr. Keane shows that he did not object to Mr. Keane's arrest. In fact, Silva took Mr. Keane to the vehicle and personally transported him to the Sonoma County Detention Center. Keane Decl. ¶ 42. These facts demonstrate that Silva did not have a minor role, as he would have the Court believe. He participated significantly in both the search of the home, the interrogation of Mr. Keane and Ms. Strange and the arrest of Mr. Keane. He was, in sum, an integral participant in the unconstitutional acts that occurred in the home and is not entitled to summary judgment. B. Silva Acted Under the "Color of State Law. Silva seeks immunity from the § 1983 claims on the basis that his actions cannot be "fairly attributable to the state." Throughout this litigation, Silva has selectively claimed to be a state officer at times and a federal officer at other times. Regardless of his "official" status at the time of the raid, Silva acted under the color of state law for the purpose of § 1983 liability. 1. Silva, a Petaluma Police Officer, Acted Under the Color of State Law

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"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by the virtue of state law and made possible only because the wrongdoer is clothed with authority of state law.'" McDade v. West, 223 F.3d 1135, 1139-40 (9th Cir. 2000). Indeed, "[i]t is firmly established that a defendant in a § 1983 suit acted
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under color of state law when he abuses the position given to him by the State." Id. at 1140. Consequently, "a public employee act[s] under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. Here, Silva was acting in his official capacity as a Petaluma Police officer when violating Plaintiffs' rights. The city of Petaluma Police Department, not the federal government, employs Silva. Indeed, Silva's Supplemental Declaration states that "I am an officer of the Petaluma, California, Police Department." Supp. Silva Decl. ¶ 1. Although Silva claims to have been acting as a deputized federal officer, he has provided no evidence beyond his bare assertion to support the conclusion. Indeed, nothing indicates Silva was anything other than a state officer. As such, Silva acted under the color of state law for the purposes of § 1983 liability. McDade, 223 F.3d at 1140. 2. Silva Acted Under the "Color of State Law" Even if he Was Acting as a DEA Agent at the Time of the Raid7 Even if this Court finds that Silva was deputized as a federal officer and acting as a DEA agent, his conduct may still be "fairly attributable to the state." Indeed, while Silva correctly quotes Lugar for the requirement that his conduct must be "fairly attributable to the state" for Plaintiffs to impose liability under § 1983, he fails to apply the two-part test for determining "color of law." Lugar, 457 U.S. at 939.8 The test is satisfied when the Constitutional violation "resulted from the exercise of a right or privilege having its source in state authority" and the parties can be "characterized as state actors" under the facts of the case. Id. Application of this test shows that Silva acted under the "color of state law," regardless of his agency affiliation.

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7 The following argument is an adaptation of the argument that Plaintiffs raise in opposition to McMullen's claims. Plaintiffs adapt the law for Silva's unique factual situation as a Petaluma Police officer allegedly operating as a DEA agent for the convenience of the Court. 8 While Lugar applied to private citizens, the test now includes federal agents who deprive constitutional rights. See Cabrera v. Martin, 973 F.2d 73, 742 (9th Cir. 1992); see, e.g., Terrell v. Petrie, 763 F. Supp. 1342, 1344 (E.D. Va. 1991) (aff'd Terrell v. Hardesty, 952 F. 2d 397 (4th Cir. 1991)) (§ 1983 proper remedy "when federal officials abuse authority given by the state").

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a.

The Sole Authority for Silva to Search Plaintiffs' Home and Arrest Mr. Keane Came from the State of California

Silva's supposed right to enter Plaintiffs' home and arrest Mr. Keane is derived solely from state warrants reviewed by Sonoma County officials and signed by a judge of the Superior Court of California. McMullen Decl. ¶ 6. The arrest warrant sought to enforce Sections 11360(a) and 11359 of the California Health and Safety Code ­ both state laws. Supp. McMullen Decl., Exh. 1. The power and authority to enter Plaintiffs' home, and the subsequent damage suffered by Plaintiffs, was due exclusively to an exercise of power granted by the State of California. Thus, Silva acted pursuant to state authority while enforcing state laws in accordance with state imposed rules of conduct. This more than satisfies the first prong of the Lugar test requiring that "the deprivation [be] caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State." Lugar, 457 U.S. at 937. Silva's argument to the contrary is unsupported by law. He argues that DEA agents act under the color of federal law, even when exercising state powers, because 21 U.S.C. § 873 authorizes DEA agents to "cooperate in the institution and prosecution of cases in . . . courts of the several States." Silva Motion, at 13:12-19. Silva provides no authority for the argument that § 873 applies in this way. As noted, courts have held that "when federal officials abuse authority given by the state, Section 1983 is the proper remedy." Terrell, 763 F. Supp. at 1344. In Terrell, IRS agents acted under the "color of state law" because they acted under the authority of a state-issued a capias warrant. Id. To immunize federal officials because they are authorized to act under state authority would carve out a substantial exception to the Lugar test. That is not the law. The first prong of the Lugar test is satisfied. b. Silva Was a "State Actor" Because Plaintiffs' Constitutional Rights Were Violated by Joint Participation Between Silva and the State Under Lugar, individuals may be characterized as state actors when there is "joint participation" between the individual and the state official in carrying out the abuse. 457 U.S. at 941; see also Cabrera, 973 F.2d at 742. To determine the existence of "joint participation," the court will look to the extent to which the actor has relied on state assistance, whether the actor is
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performing a traditionally state function, and whether state actors aggravated the injury. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621-22 (1991). Each is present here. Silva's reliance on state officials is axiomatic. The warrants he was executing were obtained based largely on investigations conducted by police officers from the City of Petaluma and Brick Township. McMullen Decl., Exh. 2. Indeed, state officers conducted more than half the interview of the key witness (Declaration of Maureen McGuigan ("McGuigan Decl.") ¶¶ 15, 18, 19, 20), the controlled delivery portion of the investigation involved only state actors (see Simmons Decl. Exh. 1(d)), and there is little evidence of any additional investigation conducted by federal officers (Levine Decl. ¶¶ 21-23 ("[n]o ascertainable attempts were made to conduct a professional level of investigation in adherence with the search-for-truth principles that are the basis of U.S. law enforcement")). Further, the decision to pursue a warrant was discussed with the state district attorney and the warrants were ultimately sought in state court. McMullen. Decl. ¶ 6. Many, if not most, of the officers present at the search were state, not federal actors. The City of Petaluma employs both Accornero and Silva (Supp. Silva Decl. ¶ 1; Accornero Decl. ¶1), and at least two of the approximately seven officers present were from the Marin County Sherriff's department (Accornero Decl. ¶¶ 8, 10). Finally, Marin County Sheriff officers conducted the first interrogation of Ms. Strange. Strange Decl. ¶ 15. Silva's conduct is inseparable from its state assistance. Silva was also performing a traditional state function resulting in injuries that were aggravated by state actors. As McMullen admitted, the officers were acting to enforce state laws ­ obviously a state function. Supp. McMullen Decl. Exh. 1. Silva's attempt to enforce those laws resulted in injuries that were aggravated by state actors. Indeed, as previously discussed, state actors conducted a flawed investigation, used excessive force against Plaintiffs during the search and damaged Plaintiffs' property while executing the state-issued search warrants. There can be no clearer case of aggravation by state actors. Silva exercised powers the State of California granted him and he acted to enforce state laws and aid a state prosecution. Where analogous facts are evident, courts have found federal and private actors to have acted "under color of state law." See Howerton v. Gabrica, 708 F.2d 380, 385 (9th Cir. 1983) (in repossession context, landlord acted under color of state law where police were
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on the scene at each step of eviction and at times actively intervened); Copelan v. Croasmun, 84 Fed. Appx. 762, 764 (9th Cir. 2003) (private creditor's actions attributable to state where he executed a writ, issued by the state, and without whose authority, the creditor would not have acted); Terrell, 763 F. Supp. at 1344 (section 1983 proper remedy where IRS agents, pursuant to a capias warrant issued by the state, unlawfully searched and arrested plaintiff). Plaintiffs' claims are properly asserted under § 1983.9 V. ALTERNATIVELY, THE COULD SHOULD DENY THE MOTION BECAUSE PLAINTIFFS HAVE NOT HAD AN ADEQUATE OPPORTUNITY TO GATHER DISCOVERY Notwithstanding the very early stages of this action, Plaintiffs believe that, without discovery, they have raised triable facts sufficient to defeat this motion. Plaintiffs, however, also want to be careful. For that reason, as an alternative basis to deny this motion, Plaintiffs invoke Rule 56(f) of the Federal Rules of Civil Procedure. Under Rule 56(f), a court may deny or continue a motion for summary judgment where the opposing party demonstrates that, for specified reasons, it cannot present facts necessary to justify its opposition.10 Fed. Rule Civ. Proc. 56(f). Here, Rule 56(f) relief is appropriate for several reasons. First, as set forth in the Second Supplemental Declaration of James Heffner ("Second Supp. Heffner Decl."), Plaintiffs expect that further discovery will uncover specific facts adverse to this motion. Second, Silva has repeatedly spurned Plaintiffs' diligent efforts to obtain discovery, preventing them from mounting a complete opposition. Finally, as we show below, each of the prevailing factors considered when assessing Rule 56(f)'s applicability weighs in Plaintiffs' favor. A. The Rule 56(f) Standard A party invoking Rule 56(f) must show that (1) it has set forth in affidavit form the specific
9 In the event this Court finds that Silva was not acting under the color of state law for the purpose of § 1983, Plaintiffs' claims are nevertheless properly asserted under Bivens, 403 U.S. 388 (1971), as Silva admits to acting with federal authority. Declaration of John Silva, filed on 3/11/08, ¶¶ 2, 3. 10 Although it is "unusual" to both respond fully to a motion and seek Rule 56(f) relief, this Court has noted that this "unusual posture of the request is not dispositive." Allstate Insurance Co. v. Morgan, 806 F.Supp. 1460, 1466 n.7, (N.D. Cal. 1992) (Armstrong, J.).

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facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought after facts are essential to oppose summary judgment. Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008). The requesting party must also demonstrate that it diligently pursued previous discovery opportunities before seeking a continuance. Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Plaintiffs easily meet Rule 56(f)'s requirements. The Second Supplemental Declaration of James Heffner sets forth specific facts Plaintiffs expect to elicit from further discovery. Second Supp. Heffner Decl. ¶¶ 6-8. For example, Plaintiffs expect to find that prior to the raid on the Keane home, the officers involved held a pre-operational meeting to discuss the background of the case and to give specific assignments. Id. ¶ 7. This meeting would also provide officers with a description of the tactics to be employed in entering the home and executing the warrants. As a task force officer participating in the raid, Silva would have been present at such a meeting and would likely have participated in any pre-raid strategy discussions. Id. Plaintiffs also expect discovery to reveal that Silva was on the Keane premises at the time of the initial entry and thus witnessed the manner in which the officers entered the home. Id. ¶ 8. If Silva witnessed an unlawful entry in violation of the knock and announce requirements, he may be liable as an integral participant in the constitutional violation. These facts are significant because they contradict Silva's primary argument that he was a minor participant in the raid. Plaintiffs have reason to believe that these additional facts exist. According to Michael Levine, a twenty-five year veteran of federal law enforcement with forty-three years of general law enforcement training and experience, pre-operational meetings are standard procedure for raids such as this one. Declaration of Michael Levine ¶ 27. Plaintiffs believe that internal DEA materials, such as employee handbooks, training materials and policy and procedure manuals (all of which have been requested but not produced) will establish that pre-operational meetings are standard protocol and that Silva would have participated in such a meeting. Additionally, the depositions of those involved in the raid, including Silva and co-defendants McMullen and Accornero, will likely provide additional information regarding the officers' pre-raid activities and Silva's integral involvement. Finally, additional discovery concerning these facts is needed for Plaintiffs to frame a
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complete opposition. Silva's motion rests primarily on his claims of non-involvement in the investigation and subsequent raid. In his motion, Silva asserts that he "joined the operation only after the Keane residence was secured and participated only in questioning of Plaintiffs." See Silva Motion, at 7. Further, he contends that he "did not create the operations plan, did not participate in the initial entry of the Keane residence, did not participate in securing the residence, and did not apply the handcuffs to Plaintiffs." See id. at 11, citing Supp. Silva Decl. Currently, however, the only evidence to support these assertions is Defendant Silva's own declaration. Plaintiffs need additional discovery to oppose these claims of non-involvement properly. For example, internal DEA materials will likely clarify that participants in a raid are required to attend a pre-operational meeting. If Silva attended such a meeting, he was likely briefed on the investigative history and almost certainly would have been advised of the contemplated "dynamic entry" plan. At that point, he should have known that the investigation lacked probable cause and that the plan of entry was excessive under the circumstances. This knowledge would render him an "integral participant" in the raid. Further, contrary to Silva's assertions, Plaintiffs expect that deposition testimony from the participating officers and other witnesses will show that Silva was substantially involved in and integral to the raid and the resulting constitutional violations. Absent any written discovery responses or depositions, however, Plaintiffs cannot fully oppose this motion. Rule 56(f) relief is thus necessary to allow plaintiffs the chance to prepare a full opposition. B. Defendants Have Thwarted Plaintiffs' Diligent Discovery Efforts Despite the premature filing of Silva's motion, Plaintiffs have dutifully pursued fact discovery throughout the duration of this litigation. On May 28, Plaintiffs served Defendant Silva with a Request for Production of Documents and Things. Second Supp. Heffner Decl. Exh. A. On July 14, 2008, over six weeks later, Silva provided his "responses," in which he asserted boilerplate objections to each of Plaintiffs' requests, ultimately producing no documents. See id. Exh. B. Defendant Silva contends that federal regulations require a governmental review before disclosure, and has represented that he will produce responsive documents once this governmental review is complete. Id. Now, over two months after service of these discovery requests, Plaintiffs have yet to receive a single document from Silva.
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In addition to written discovery requests, Plaintiffs have proposed deposition dates for six fact witnesses, including defendant Silva. See id. Exh. C. Silva has neither agreed to nor rejected these proposed dates, relying again on an allegedly mandated governmental review procedure before he can respond. In sum, Defendant Silva has thwarted Plaintiffs' discovery efforts at every turn. C. Additional Considerations Governing Rule 56(f)'s Applicability Weigh in Favor of Granting Plaintiffs' Request When assessing Rule 56(f)'s applicability, courts often consider additional case-specific factors, such as whether the summary judgment motion is premature, whether the additional discovery sought is uniquely in the possession of the moving party, and whether the discovery sought is the subject of outstanding discovery requests. Here, each of these three factors supports Rule 56(f) relief. 1. Plaintiffs Have Not Had the Opportunity to Pursue Sufficient Discovery

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Courts often apply Rule 56(f) where a prematurely filed summary judgment motion deprives the opposing party from obtaining meaningful discovery. Burlington Northern Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003) (holding that relief under Rule 56(f) should be granted "fairly freely" where an early-filed summary judgment motion prevents any "realistic opportunity" for discovery). At the case management conference on May 7, this Court opened discovery and established a discovery cut-off date of December 22, 2008. On June 18, just six weeks after the opening of discovery and over six months before the December cut-off date, defendant Silva filed his notice of motion for summary judgment. This six week time frame is an impossibly small window in which to conduct discovery, particularly where the court initially contemplated a discovery period lasting through the bulk of this year. Indeed, six weeks would barely allow the parties to serve, respond to and review written discovery, let alone notice and take the depositions of the officers and other witnesses involved in this incident. 2. Rule 56(f) Relief is Appropriate Because Plaintiffs Have Requested But Not Yet Received Probative Information That Is Solely in Defendants' Possession Courts also frequently employ Rule 56(f) where a party opposing summary judgment has identified and requested "discovery of probative information solely available from" the moving
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