Free Motion for Summary Judgment - 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 20 21 22 23 24 25 26 27 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 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT Fed.R.Civ.P. 56 Date: Time: Place: Before: July 29, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong

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TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iv

3 NOTICE OF MOTION AND MOTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 II. STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7 A. 8 9 B. 10 11 12 III. ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 A. 14 B. 15 C. 16 17 D. 18 19 E. 20 21 22 23 24 25 26 27 28 i AT A MINIMUM, THE FEDERAL DEFENDANTS ARE ENTITLED TO JUDGMENT WITH RESPECT TO PLAINTIFFS' SECTION 1983 CLAIMS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 FEDERAL DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFFS' EXCESSIVE FORCE CLAIMS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 FEDERAL DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT REGARDING PLAINTIFFS' INVESTIGATIONRELATED CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. SPECIAL AGENT McMULLEN AND OTHER DEA OFFICERS EXECUTED THE SEARCH AND ARREST WARRANTS. . . . . . . . . . . 8 PLAINTIFFS FILED THE CURRENT LAWSUIT ALLEGING VIOLATIONS OF 42 U.S.C. § 1983 AND BIVENS VIOLATIONS.. . . 10 PLAINTIFF KEANE WAS IDENTIFIED BY BUSINESS OWNER MAUREEN McGUIGAN AS THE PERSON WHO ATTEMPTED TO DELIVER THREE BAGS OF MARIJUANA TO NEW JERSEY . . . . . . 5

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TABLE OF AUTHORITIES PAGE

Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Anderson v. Creighton, 483 U.S. 635 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 Baker v. McCollan, 443 U.S. 137 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Baldwin v. Placer County, 418 F.3d 966 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Beck v. City of Upland, 2008 WL 2186300 (9th Cir. May 28, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Beier v. City of Lewiston, 354 F.3d 1058 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Bergquist v. County of Cochise, 806 F.2d 1364 (9th Cir.1986), disapproved on other grounds, Merritt v. County of Los Angeles, 875 F.2d 765 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Celotex v. Catrett, 477 U.S. 317 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Crowe v County of San Diego, 359 F. Supp. 2d 994 (S.D. Cal.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995) cert. denied, 516 U.S. 869 (1995). . . . . . . . . . . . . . . . . . . . . 12 Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Flores v. Morgan Hill Unified Sch. District, 324 F.3d 1130 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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TABLE OF AUTHORITIES CONT'D Franklin v. Foxworth, 31 F.3d 873 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Franks v. Delaware, 438 U.S. 154 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Graham v. Connor, 490 U.S. 386 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Greenstreet v. County of San Bernardino, 41 F.3d 1306 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Harlow v. Fitzgerald, 457 U.S. 800 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Hope v. Pelzer, 536 U.S. 730 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Hunter v. Bryant, 502 U.S. 224 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Johnson v. Hornung, 358 F. Supp. 2d 910 (C.D.Cal., 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 KRL v Estate of Moore, 512 F.3d 1184 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Maffei v. Northern Insurance Co. of New York, 12 F.3d 892 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Malley v. Briggs, 475 U.S. 335 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21 Michigan v. Summers, 452 U.S. 692 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Mills v. Graves 930 F.2d at 729 (9th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Muehler v. Mena, 544 U.S. 93 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Nelson v. Pima Community College, 83 F.3d 1075 (9th Cir.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

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TABLE OF AUTHORITIES CONT'D Saucier v. Katz, 533 U.S. 194 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 21 Sinaloa Lake Owners Association v. City of Simi Valley, 70 F.3d 1095 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Triton Energy Corp. v. Square D Co, 68 F.3d 1216 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Alaimalo, 313 F.3d 1188 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Banks, 540 U.S. 31 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Clark, 31 F.3d 813 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Combs, 394 F.3d 739 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Penn, 647 F.2d 876 (9th Cir.), cert. denied, 449 U.S. 903 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 24 Vigliotto v. Terry, 873 F.2d 1201 (9th Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Western Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Wilson v. Arkansas, 514 U.S. 927 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 FEDERAL STATUTES

23 Fed.R.Civ.P. 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12 24 FRCP 56 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 25 42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 10, 12 26 U.S. Const. amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 27 28 iv

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Motion For Summary Judgment Or, In The Alternative, For Summary Adjudication C 07-4894 SBA

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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT on July 29, 2008 at 9:00 a.m., before Hon. Saundra B. Armstrong, 1301 Clay Street, Oakland, California, Federal Defendant Seth McMullen, by and through his attorney of record, will move for summary judgment or, in the alternative, for partial summary judgment with respect to the below-enumerated facts and issues. Special Agent McMullen will request that this Court issue an order granting summary judgment in favor of Special Agent McMullen and against plaintiffs with respect to all the claims brought in Plaintiffs' First Amended Complaint For Violations Of Civil Rights Under 42 U.S.C. § 1983 and Bivens Claim Under Fourth and Fifth Amendments Of The U.S. Constitution.

10 The motion is made pursuant to Federal Rule of Civil Procedure ("FRCP") 56 (b) on the ground 11 that there are no disputed issues of material fact and on the ground that Special Agent McMullen is 12 entitled to qualified immunity and to judgment as a matter of law. 13 In the alternative, pursuant to FRCP 56 (b) and (c)(1), Special Agent McMullen is entitled

14 to an order granting partial summary judgment or adjudicating as many of the following facts and 15 issues as the Court deems proper: 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) (2) (1) that Special Agent McMullen has no liability for Plaintiffs' investigation-related claims because (a) the undisputed evidence is that McMullen did not violate Plaintiffs' constitutional rights by submitting the affidavit in support of the arrest and search warrants, and (b) McMullen is entitled to rely on the probable cause determinations of Sonoma County Assistant District Attorney Jamar and Superior Court Judge Robert Boyd; that no constitutional violation occurred when several officers entered the residence with drawn guns and loud commands because the evidence demonstrates such an entrance was reasonable under the circumstances; that Special Agent McMullen is not liable to Plaintiffs pursuant to excessive force theory because (a) lying to Plaintiff's during questioning does not violate Plaintiff's constitutional rights, (b) there is insufficient evidence to support Plaintiffs' claims that McMullen physically mistreated Plaintiffs and (c) the undisputed evidence is
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that McMullen is not responsible for the procedures employed by the Sonoma County detention facility; and that both Federal Defendants (Special Agent McMullen and Task Force Officer John Silva) are entitled to judgment on Plaintiffs' §1983 claims because each was performing their duties as federal officers and the facts offered by Plaintiffs as evidence of substantial state participation in the alleged constitutional violations is legally insufficient. This motion is based on this Notice; the following points and authorities filed in support of the motion; the pleadings, motions and papers on file in this matter; the declarations of Seth

10 McMullen (including the declaration filed herewith and the declaration filed January 14, 2008); 11 the declarations of John Silva (including the declaration filed herewith and the declaration filed 12 March 14, 2008); the declarations of John Murphy, Robert W. Scott, II, Bridget Coughlin, Robert 13 Armstrong, and Abraham A. Simmons, the audiotape of admonitions given to Robert Keane, the 14 Motion For Summary Judgment filed by John Silva and on such oral argument and additional 15 evidence as the Court may permit. 16 17 18 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION1 Plaintiffs Robert Carl Patrick Keane and his girlfriend Chieko Strange filed this civil rights

19 action alleging defendant Special Agent McMullen never should have suspected Keane was 20 involved in trafficking illegal narcotics. The crux of Plaintiffs' claim is that McMullen should not 21 have (1) applied for warrants to arrest Keane and to search his home (the "investigation-related 22 claim") nor (2) used excessive force when executing the arrest and search warrants (the "excessive 23 force claim"). Protesting Keane's innocence and claiming that the tactics used to search his home 24 25 26 27 28 There are three defendants in this case. Special Agent Seth McMullen is an employee of the Drug Enforcement Administration. Task Force Officer John Silva is a Petaluma Police Officer who was deputized and acting in his capacity as a federal Task Force Officer with regard to his activities in this case. Paul Accornero is an officer with the Petaluma Police Department. He is represented by separate counsel.
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violated his constitutional rights, Plaintiffs assert they are entitled to damages pursuant to the civil rights statute at 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This Court should grant judgment in favor of Special Agent McMullen with respect to both parts of Plaintiffs' case. With respect to the investigation-related claims, Special Agent McMullen properly concluded he had probable cause to believe Keane was involved in the transportation of marijuana. His affidavit in support of search and arrest warrants was accurate and sufficiently complete. In any event, even if his affidavit does not contain sufficient facts to establish probable cause, he still cannot be held liable because a prosecuting attorney decided to

10 file criminal charges and a superior court judge issued the search and arrest warrants at issue. In 11 this case, these decisions operate to preclude judgment against Special Agent McMullen as the 12 executing officer. 13 With respect to the excessive force claims, the undisputed facts establish that the tactics

14 adopted by Special Agent McMullen were well within the range of those required of an officer 15 executing an arrest warrant and a search warrant of a residence in a drug investigation. There is no 16 evidence Special Agent McMullen violated Plaintiffs' constitutional rights and the audiotape of 17 the conversation between Accornero and Keane demonstrates why the myriad of sensational 18 allegations in the Amended Complaint can carry no weight at this stage of the proceedings. 2 19 Finally, even if Plaintiffs are permitted to pursue some of their claims, they cannot do so

20 pursuant to 42 U.S.C. § 1983. Special Agent McMullen relies on the brief filed by John Silva and 21 the arguments raised therein as the basis for establishing that summary judgment on this issue is 22 appropriate. The brief is incorporated by reference as though set forth fully herein. 23 In sum, Special Agent McMullen is entitled to summary judgment with respect to all

24 Plaintiffs' claims. In the alternative, this Court should grant summary adjudication in favor of 25 Special Agent McMullen on as many of the issues raised herein as the Court deems proper. 26 27 28 Defendants acknowledge Plaintiffs may be able to hold open part of this case by merely submitting declarations suggesting Special Agent McMullen physically abused them when he executed the arrest and search warrants. It remains to be seen, however, how far Plaintiffs will go in preparing statements under oath asserting that such force was used.
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II. STATEMENT OF THE FACTS PLAINTIFF KEANE WAS IDENTIFIED BY BUSINESS OWNER MAUREEN McGUIGAN AS THE PERSON WHO ATTEMPTED TO DELIVER THREE BAGS OF MARIJUANA TO NEW JERSEY Seth McMullen is a Special Agent with the Santa Rosa Resident Office (SRRO) of the United States Drug Enforcement Administration, an agency of the United States government. Declaration of Seth McMullen filed January 14, 2008 ("McMullen Decl.") at ¶ 1; Complaint at ¶ 8. He has occupied this position for almost eight years. Supplemental Declaration of Seth McMullen filed herewith ("Supp. McMullen Decl.") at ¶ 2. On November 29, 2006, Sergeant Jim Stephenson, a member of the Petaluma Police

10 Department, contacted Special Agent McMullen by telephone and reported that he had received 11 information regarding an attempt to deliver a controlled substance. Specifically, Maureen 12 McGuigan, the owner of Mail Depot in Petaluma, reported that a customer attempted to mail 13 marijuana from Petaluma to New Jersey. McMullen Decl. at ¶ 2. Stephenson related his 14 conversation with McGuigan wherein she reported that earlier the same day a person left with her 15 a wrapped package for mailing. She described the person as a white male adult, approximately 16 forty years old, 5'6" tall, 150 pounds, with brown hair and wearing sunglasses. McMullen Decl. at 17 ¶ 2. The man claimed he wanted to deliver the package to his `niece', Kerry Keane in Brick, New 18 Jersey. McMullen Decl. at ¶ 2. McGuigan stated that she became concerned when she found his 19 behavior suspicious and asked the man if the package contained marijuana. McMullen Decl. at 20 ¶ 2. The man denied that the contents of the package were illegal drugs, stated that it contained 21 clothing for his niece and left. McMullen Decl. at ¶ 2. McGuigan discovered the package 22 contained three packages of marijuana. McMullen Decl. at ¶ 2. She delivered the package to the 23 Petaluma Police Department and discussed the contents of the package with Stephenson. 24 McMullen Decl. at ¶ 2. Stephenson stated that among the things he did after he took custody of 25 the package was to call Special Agent McMullen. McMullen Decl. at ¶ 2. McMullen stated that 26 he would retrieve the package and open an investigation. McMullen Decl. at ¶ 2. 27 The next day, November 30, 2006, Special Agent McMullen and Special Agent Jeff Hoyt

28 met Sergeant Stephenson, took custody of the package, and transported it back to back to the

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SRRO. McMullen Decl. at ¶ 3, Exh 1 (photograph of package). The package bore a sending address of "C. Keane," 307 North Ferndale Avenue, Mill Valley, California, 94941. McMullen Decl. at ¶ 3. Special Agent McMullen conducted research using computer databases and verified both that the address was valid and that Plaintiff Robert Carl Patrick Keane used the address as a residence. McMullen Decl. at ¶ 4. Special Agent McMullen conducted further research and obtained a photograph of Mr. Keane as well as other identifying information. McMullen Decl. at ¶ 4. Later the same day, the agents returned to the Mail Depot, showed McGuigan a photograph of Keane (identifying him as a "possible suspect") and asked whether the person in the photograph resembled the person who attempted to deliver the package. McMullen Decl. at ¶ 5. McGuigan

10 confirmed that the photograph depicted the person who had dropped off the package the day 11 before. McMullen Decl. at ¶ 5. 12 Special Agent McMullen arranged to have the package shipped and delivered under

13 controlled circumstances. McMullen Decl. at ¶ 5. On December 1, 2006, the package was 14 delivered by Detective Jason Shepherd of the Brick Township Police Department. Declaration of 15 Abraham A. Simmons ("Simmons Decl.") , Exhibit 1(d). Within the next few days, McMullen 16 was informed that the Brick Township law enforcement arrested Brian William Keane and 17 Susanne Keane for taking possession of the marijuana. See Supp. McMullen Decl.at ¶¶ 5-7. Both 18 arrestees claimed to have no knowledge of the contents of the package. Simmons Decl., Exh. 1(d). 19 At the time of the arrest, Brian Keane claimed the package contained a bomb and that he was 20 returning it to the Federal Express facility. Simmons Decl., Exh. 1(d). Brian Keane nevertheless

21 had put the package in the seat next to his daughter and was not driving in the direction of the 22 federal express building. Simmons Decl., Exh. 1(d). Brian Keane also claimed he did not know a 23 C. Keane in California; nevertheless, after both denying and admitting he had a brother, he stated 24 his brother's name was Chris. Simmons Decl., Exh. 1(d). 25 Among the concerns regarding the further investigation was the fact that once the

26 controlled delivery was made to the New Jersey address, and subsequent law enforcement activity 27 likely would be communicated to persons in California. Supp. McMullen Decl. ¶ 6. This likely 28 would result in the spoliation of evidence in California. Supp. McMullen Decl. ¶ 6. With time

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believed to be of the essence, Special Agent McMullen decided to pursue a warrant to search the Keane residence. McMullen Decl. at ¶ 6. He chose to use procedures available in state, rather than federal, court in light of the amount of marijuana involved. McMullen Decl., ¶ 6. From December 1, 2006 through December 15, 2006, Special Agent McMullen prepared a six-page Search Warrant and Affidavit that consisted of (1) a one-paragraph affidavit for signature by Special Agent McMullen and a deputy district attorney, (2) a two-and-a-half-page search warrant for signature by a Superior Court Judge for the County of Sonoma, (3) a seven-paragraph statement of expertise and (4) a ten-paragraph statement of probable cause. McMullen Decl., Exh. 2. The affidavit attests to Special Agent McMullen's belief that the facts expressed in the Search

10 Warrant and Affidavit are true and correct and that he has probable cause to believe that the items 11 sought are lawfully seizable. McMullen Decl., Exh. 1. Below McMullen's signature on the 12 affidavit is a statement that the document was "[p]repared with the assistance of or reviewed by" 13 the deputy district attorney on the case. McMullen Decl., Exh. 2. Scott Jamar, a deputy district 14 attorney for the Sonoma County District Attorney's Offfice, signed the preparation/review 15 statement. 16 The search warrant indicates that Special Agent McMullen had probable cause to believe

17 the lawfully seizable items were either used as the means of committing a felony, were possessed 18 by a person with intent to use it as a means of committing a public offense or is evidence tending 19 to show that a felony has been committed. McMullen Decl., Exh. 2. The search warrant identified 20 Keane's address as the residence that is authorized to be searched. McMullen Decl., Exh. 1. The 21 search warrant permits search for numerous items including "deposit slips," utility company 22 receipts, legal documents and "other receipts." McMullen Decl., Exh. 2. 23 Among the topics described in Special Agent McMullen's statement of expertise were his

24 experience and training in the field of narcotics, his experience in preparing and executing state 25 and federal warrants, and his experience in narcotics investigations. McMullen Decl., Exh. 3. 26 The statement of probable cause included an account of the facts that had been

27 communicated to, and investigated by, Special Agent McMullen up until the date the affidavit was 28 signed, December 15, 2006. McMullen Decl., Exh. 2. The statement disclosed that McGuigan was

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shown "a photo of a possible suspect" and that she positively identified Keane. McMullen Decl., Exh. 2. There was no suggestion in the statement that McGuigan was subjected to a line-up. Similarly, the concluding paragraph of the affidavit stated Special Agent McMullen's belief that Keane and Brian Keane were related. Specifically, the concluding paragraph of the affidavit stated: 10. Agents believe that Robert Carl Patrick KEANE and Carl or Carl Patrick KEANE is the same person. Also, the shipping label of the six pounds of marijuana sent to New Jersey for the controlled delivery had C. KEANE, 307 North Ferndale Avenue, Mill Valley, California as the sending address. When Brian KEANE was arrested, he gave 39 Sandy Point Drive, Brick, New Jersey, as his address, and (732) 262-8875 as his telephone number. All of this information was contained on the shipping label. Agents also believe that Robert Carl Patrick KEANE and Brian KEANE are possibly related due to the same last names and a physical resemblance of both.

12 McMullen Decl., Exh. 2 (search warrant). 13 Special Agent McMullen also prepared an arrest warrant for Keane's arrest. Supp.

14 McMullen Decl., Exh. 1. Both the arrest warrant and the search warrant were reviewed by 15 Sonoma County District Attorney Scott Jamar and submitted to Sonoma County Superior Court 16 Judge Robert S. Boyd. McMullen Decl., Exh. 2. Judge Boyd signed and issued both warrants. 17 McMullen Decl., Exh. 2. Special Agent McMullen also prepared a two-count complaint charging 18 Keane with violations of the California Health and Safety Code. Simmons Decl., Exh. 2. (Felony 19 Complaint). The People of the State of California filed the complaint and opened a case against 20 Keane. See Simmons Decl., Exh. 3. 21 B. 22 To prepare for the execution of the search and arrest warrants, McMullen requested 23 assistance from the Petaluma Police Department. McMullen Decl. at ¶ 7. Specifically, McMullen 24 requested that a K-9 unit be deployed to assist with the search. McMullen Decl. at ¶ 7. Also, 25 consistent with department policy, McMullen contacted the local authorities about the impending 26 execution of the warrants. In this case, Special Agent McMullen notified the Marin County 27 Sheriff's Department and invited them to have a representative attend the execution of the search 28 warrant. McMullen Decl. at ¶ 7.
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SPECIAL AGENT McMULLEN AND OTHER DEA OFFICERS EXECUTED THE SEARCH AND ARREST WARRANTS

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Special Agent McMullen prepared an operations plan that was mindful of the quantity of marijuana that had been intercepted by Ms. McGuigan and the likelihood that the residence might contain weapons and persons willing to use them. Supp. McMullen Decl., ¶ 8. The operations plan included the possibility of a dynamic entry which is proper procedure for entry into a residence in a drug case such as this one if no response is made to a knock and announcement. See Declaration of Nikos Eliopolous ("Eliopolous Decl."), ¶¶ 14-18. This is true because the government interests at stake; namely, to prevent escapes, destruction of evidence, and most importantly, injury to innocent third parties, the officers and the targets. Eliopolous Decl. at ¶¶ 10-13. On December 19, 2006, McMullen led the team that executed the warrants. See Suppl.

10 McMullen Decl. at ¶ 8. At approximately 7:35 a.m., Special Agent McMullen knocked and 11 announced the presence of law enforcement. McMullen Decl. at ¶ 9. The front door was unlocked 12 and he entered without using force. McMullen Decl. at ¶ 9. He wore DEA-issued clothes and 13 announced "DEA." He entered with the other DEA Special Agents. McMullen Decl. at ¶ 9. The 14 Marin Officers, the K-9 unit, and Task Officer Silva waited outside while the DEA officers entered 15 and secured the home. See Supp. Silva Decl. ¶ 4. Special Agent McMullen found plaintiffs in the 16 upstairs loft and was involved in their initial detention while the house was being secured. 17 McMullen Decl. at ¶ 9. Special Agent McMullen denies that he put his boot on anyone's head, 18 denies that he put on Keane's handcuffs too tight and denies that he lifted Keane from his wrists or 19 in any way to cause Keane physical harm. McMullen Decl. at ¶ 9. 20 Special Agent McMullen and Task Officer Silva interviewed Keane and Strange.

21 McMullen Decl. at ¶ 11. Special Agent McMullen does not recall being present when the K-9 22 officer admonished Keane regarding the K-9 unit. Nevertheless, the admonitions were audio taped 23 and forwarded to Special Agent McMullen. Simmons Decl., Exh 3 (Audiotape recording and 24 transcript). 25 Special Agent McMullen completed the search, finding no controlled substances.

26 Amended Complaint at ¶ 30. He seized a Wells Fargo deposit slip and a telephone bill. 27 McMullen Decl., Exh. 1. Special Agent McMullen arrested Keane and transported him to the 28 Sonoma County Detention Facility. Amended Complaint at ¶ 30. The Intake documents from the

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facility contain no complaints that Keane was physically injured or emotionally traumatized. Simmons Decl., Exh. 5. On March 13, 2007, the criminal prosecution against Keane was dismissed. Simmons Decl., Exh. 3(a) (Notice of Motion/ Petition and Motion/ Petition of Factual Innocence). On April 25, 2007, Keane filed a motion in the Superior Court of Sonoma County to be declared factually innocent. Simmons Decl., Exh. 3(a). The District Attorney of Sonoma County filed an opposition to the motion. Simmons Decl., Exh. 3(b) (Opposition to Motion (hereinafter, "Opposition")). In the opposition to the motion, the Sonoma County District Attorney stated, "[i]n the matter at bar, an arrest was made based upon probable cause." Opposition at 4:7. In the opposition, the District

10 Attorney further stated, "at the time of Defendant's arrest, there was a clear showing of probable 11 cause." Opposition at 4:11-12. The District Attorney also informed the Superior Court that "[a]s 12 far as law enforcement is aware, the available evidence does not conclusively establish that 13 Defendant was not the individual who successfully shipped a package on May 31, 2006, and 14 attempted to ship a package of marijuana from the Mail Depot on November 29, 2006." 15 Opposition at 3:9-12. 16 C. 17 Plaintiffs filed their original complaint on September 20, 2007 and their First Amended 18 Complaint ("FAC") on February 19, 2008. [Docket Nos. 1, 20.] In their FAC, Plaintiffs allege two 19 types of wrongdoing. First, Plaintiffs complain that McMullen's investigation was improper. 20 FAC at ¶¶ 43 (c)-(d); 48 (c)-(d). Plaintiffs acknowledge in the complaint that a search warrant was 21 obtained prior to the search of Keane's home. FAC at ¶¶ 24, 30. Nevertheless, Plaintiffs allege 22 that substantial exculpatory information was ignored or left out of the affidavit in support of the 23 warrant. FAC at ¶ 43 (c). Plaintiffs also allege that any reference to the McGuigan identification 24 was improper because the identification was not made pursuant to a traditional line up. See FAC 25 at ¶ 20. Plaintiffs further allege Defendants lacked probable cause and permission to search the 26 home and to seize any items therein. FAC at ¶ 43(b),(c). 27 Second, Plaintiffs allege excessive physical force was used during the execution of the 28 search and arrest warrants. Specifically, they allege handcuffs were applied improperly, Keane
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PLAINTIFFS FILED THE CURRENT LAWSUIT ALLEGING VIOLATIONS OF 42 U.S.C. § 1983 AND BIVENS VIOLATIONS.

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was lifted improperly, McMullen put his boot on Strange's head, weapons were brandished improperly, and that defendants "ransacked Plaintiffs' personal belongings, leaving the home violated and in disarray." FAC at ¶¶ 16-17. Plaintiffs further allege excessive psychological force was used. Plaintiffs claim they were traumatized unnecessarily because (1) defendants did not knock and announce their presence before entering, (2) defendants would not respond to questions regarding why the search was conducted until after the house was secured, (3) defendants yelled, "Where are your weapons," (4) defendants signaled to the toilet and said, "isn't this ironic," and (5) intimidated Plaintiffs with "accounts" of an ultra-sensitive drug-sniffing dog." FAC at ¶¶ 13-15. With respect to the specific constitutional rights plaintiffs allege have been violated,

11 plaintiffs allege as follows: 12 13 14 a. 15 16 b. 17 18 19 20 c. The right to be free from the use of excessive force by law enforcement agents, which is guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; and The right to be free from interference within the zone of privacy, as protected by the Fourth and Fourteenth Amendments to the United States Constitution. The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution; While acting under color of state law, DEFENDANTS unlawfully entered Plaintiffs' home, conducted an illegal and unreasonable search, seized Plaintiffs' property and arrested KEANE without probable cause or justification, depriving Plaintiffs of certain constitutionally protected rights, including, but not limited to:

21 FAC at ¶ 45; see also FAC ¶ 50. Plaintiffs allege Federal Defendants violated their constitutional 22 rights while acting under color of state law. FAC at ¶ 44. 23 24 A. 25 SUMMARY OF ARGUMENT Special Agent McMullen's affidavit in support of arrest and search warrants is supported III. ANALYSIS

26 by ample probable cause. Moreover, abundant Ninth Circuit authority establishes Plaintiffs are 27 precluded from asserting Special Agent McMullen is liable regarding his decision to search and 28 arrest because (1) the decision of Sonoma County District Attorney Jamar to file a criminal

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complaint operates to break the chain of causation to Plaintiffs' damages and (2) the decision Superior Court Judge Boyd to issue the warrants operates as a bar to liability in this case. Agent McMullen also is entitled to summary judgment with respect to Plaintiffs' excessive force claims. He acted reasonably in preparing and executing the search plan. Similarly, there is no evidence to substantiate Plaintiffs' claims of excessive force in the physical application of the handcuffs, the use of his boot to restrain Plaintiff Strange's head and the alleged lifting of Keane by his handcuffed wrists. These allegations, while sensational, will not establish a triable issue of fact unless substantiated by evidence. Additionally, if Plaintiffs are able to submit sufficient evidence to move forward with one

10 or more of their claims, this Court still should, at a minimum, summarily adjudicate that Plaintiffs 11 may not pursue their claims based upon 42 U.S.C. § 1983. Such claims are the Plaintiffs' only 12 legal basis to assert a claim for attorneys fees. That statute, however, does not apply because there 13 is insufficient basis upon which to assert the federal officers acted in concert with substantially 14 involved state actors. 15 B. 16 17 STANDARD OF REVIEW 1. The Summary Judgment Standard

Summary judgment is proper where there is no genuine issue as to any material fact.

18 Fed.R.Civ.P. 56. Material facts are those which can effect the outcome of the case. Anderson v. 19 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20 The party moving for summary judgment has no burden to produce any evidence on

21 elements of a claim on which the non-moving party will bear the burden of trial, but can merely 22 point out an absence of evidence to support any such element. Celotex v. Catrett, 477 U.S. 317, 23 322-23 (1986); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) 24 cert. denied, 516 U.S. 869 (1995); Maffei v. Northern Insurance Co. of New York, 12 F.3d 892, 25 899 (9th Cir. 1993). Once the moving party points out the absence of evidence, then the non26 moving party must come forward with specific evidence to show there is a genuine issue for trial. 27 Id. If the non-moving party fails to make this showing, then the moving party is entitled to 28 judgment as a matter of law. Celotex, 477 U.S. at 323 (1986).

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Summary judgment is not only proper if Plaintiff fails to produce any evidence on an element of his case, but summary judgment is also proper if Plaintiff fails to produce sufficient evidence on an element of his case. The Supreme Court has specifically held that summary judgment is proper against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322 (1986). The mere existence of a "scintilla" of evidence in support of the non-moving party's position is not sufficient. The non-moving party has the burden of establishing sufficient evidence on each element of his case so that a jury could return a verdict for him. Anderson, 477 U.S. at 249 (1986). Stated in another way, the standard for

10 summary judgment mirrors the standard for a directed verdict. Anderson, 477 U.S. at 252 (1986); 11 Triton Energy Corp. v. Square D Co, 68 F.3d 1216, 1221 (9th Cir. 1995). The standard is whether 12 the evidence presents a sufficient disagreement as to require jury consideration, or whether the 13 evidence is so one-sided that one party must prevail as a matter of law. Id. 14 In ruling on a motion for summary judgment, the court need not accept legal conclusions

15 "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th 16 Cir.1981). "No valid interest is served by withholding summary judgment on a complaint that 17 wraps nonactionable conduct in a jacket woven of legal conclusions and hyperbole." Vigliotto v. 18 Terry, 873 F.2d 1201, 1203 (9th Cir.1989); see also Nelson v. Pima Community College, 83 F.3d 19 1075, 1081-82 (9th Cir.1996) (stating that "mere allegation and speculation do not create a factual 20 dispute for purposes of summary judgment"); Johnson v. Hornung 358 F.Supp.2d 910, 921 21 (C.D.Cal.,2005). 22 23 Seizing on this Court's admonition that Federal Defendants should not file a motion for 24 summary judgment that would amount to a waste of time, Plaintiffs have argued during the meet 25 and confer proceedings that Defendants should not file a motion at all. Plaintiffs' position is 26 squarely at odds with the Ninth Circuit law requiring early resolution of issues, especially 27 qualified immunity issues, in civil rights cases brought against law enforcement officers. 28 The Supreme Court has cautioned that a ruling on a qualified immunity defense "should be
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The obligation to hear summary judgment motions in cases brought against law enforcement officers for civil rights violations.

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made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200 (2001). Qualified immunity shields Bivens defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir.2005); Galvin v. Hay, 374 F.3d 739, 757 (9th Cir.2004) (applying qualified immunity to Bivens claims). The purpose of qualified immunity is to protect officials from undue interference with their duties and from potentially disabling threats of

10 liability. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1098 (9th Cir.1994). The 11 Supreme Court has therefore stated that qualified immunity is an entitlement not to stand trial or 12 face the other burdens of litigation. Saucier, 533 U.S. 200. 13 C. 14 1. 15 16 Defendant McMullen Is Entitled To Qualified Immunity With Respect To The Investigation-Related Allegations In The Amended Complaint FEDERAL DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT REGARDING PLAINTIFFS' INVESTIGATION-RELATED CLAIMS

The qualified immunity doctrine protects government officials from their exercise of poor

17 judgment and fails to protect only those who are "plainly incompetent or those who knowingly 18 violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court defined the 19 qualified immunity analysis as a two-step process. First, a court examines whether the facts 20 alleged, taken in the light most favorable to the party asserting the injury, show that the 21 defendant's conduct violated a constitutional right. If no constitutional right would have been 22 violated by the alleged actions, a defendant has qualified immunity. On the other hand, if a 23 violation could be made out when the facts are interpreted in the light most favorable to the injured 24 party, the next step is to ask whether the right was clearly established. If the law did not put the 25 defendant on notice that his or her conduct would clearly be unlawful, the official has qualified 26 immunity from the claim. Saucier, 533 U.S. at 201; see also San Jose Charter of the Hells Angels 27 Motorcycle Club, 402 F.3d at 971; Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir.2004). 28 The threshold determination of whether the law governing the conduct at issue is clearly

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established is a question of law for the court. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Applying this standard in the context of alleged Fourth Amendment violations, the analysis has two parts: "(1) Was the law governing the official's conduct clearly established? (2) Under the law, could a reasonable officer have believed the conduct was lawful?" Act Up!/Portland, 988 F.2d at 871. The second part of this test is an objective inquiry; the subjective belief of the official as to the lawfulness of his or her conduct is not relevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987). An official is entitled to qualified immunity even where reasonable officers could disagree as to the lawfulness of the official's conduct, so long as that conclusion is objectively reasonable. Act Up!/Portland, 988 F.2d at 872. a. This Court Should Find That The Arrest And Search Warrants In This Case Were Properly Supported By Probable Cause (1) The facts known to McMullen establish probable cause

12 Plaintiffs' first and most fundamental argument in this litigation is that no probable cause 13 ever existed for the search of Keane's residence and for Keane's arrest. This argument is 14 meritless. 15 Probable cause requires only a fair probability or substantial chance of criminal activity, as 16 determined by the totality of the circumstances known to the officers at the time. United States v. 17 Alaimalo, 313 F.3d 1188, 1193 (9th Cir.2002). In Act Up!/Portland the Ninth Circuit held that 18 under the Supreme Court's decision in Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam), 19 "the question of whether a reasonable officer could have believed probable cause (or reasonable 20 suspicion) existed to justify a search or an arrest is an essentially legal question" to be resolved by 21 the court. 988 F.2d at 873 (internal citation and quotation marks omitted). Put another way, the 22 Ninth Circuit held that "[w]hether or not a reasonable officer would have known that his or her 23 conduct violated clearly established law 'is not in itself a factual issue that can preclude summary 24 judgment."' Alexander, 29 F.3d at 1364 (quoting Act Up!/Portland, 988 F.2d at 873). Instead, it is 25 only when there is a dispute either as to the facts and circumstances within an officer's knowledge, 26 or as to the conduct underlying the alleged violation that those factual issues must be decided by a 27 jury before the district court can make any determination as to qualified immunity. Alexander, 29 28 F.3d at 1364; Act Up!/Portland, 988 F.2d at 873.
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Here, Plaintiffs there was no probable cause for a search warrant. They are wrong. McGuigan, the owner of the Mail Depot in Petaluma, produced the package containing three pounds of marijuana. The package identified the residence that McMullen sought to search, 307 North Ferndale Avenue, Mill Valley, California, 94941. Further, the address was in sufficient proximity with the Petaluma Mail Depot that there was a fair probability or substantial chance the sender may have traveled from Mill Valley to Petaluma in order to deliver the package. McGuigan also confirmed that this was not the first package transported from the exact address to the New Jersey address. Simmons Decl., Exh 3. Further, the address was linked to C. Keane and Robert Keane who, as explained below, was properly suspected of being engaged in the

10 transportation of marijuana. These facts establish sufficient probable cause to suspect the 11 residence may have contained evidence of a crime; i.e., the production or distribution of 12 marijuana. 13 Similarly, there was probable cause for an arrest warrant. Even though Keane continues to

14 insist he did not send the package, the facts known to McMullen at the time suggested, and still do 15 suggest, that there is a fair probability Keane was involved. The Constitution does not guarantee 16 that only the guilty will be arrested; "if it did, § 1983 would provide a cause of action for every 17 defendant acquitted-indeed, for every suspect released." Baker v. McCollan 443 U.S. 137, 145, 18 99 S.Ct. 2689, 2695 (U.S.Tex.,1979). The Supreme Court expressly rejected this notion. See id. 19 Here, McGuigan identified the person who attempted to mail the package as a white male adult, 20 approximately forty years old, 5'6" tall, 150 pounds, with brown hair and wearing sunglasses. 21 McMullen Decl. at ¶ 2. This description does not exclude Keane. The package did in fact bear the 22 name "C. Keane," and the address "307 North Ferndale Avenue, Mill Valley, California, 94941." 23 McMullen Decl. at ¶ 3. These facts increased the likelihood that Keane was involved. Moreover, 24 McGuigan's identification of Keane from the photograph suggested that if a person randomly 25 picked C. Keane's name from a phone book and happened to know he went by Carl rather than 26 Robert Keane, the person also happened by some coincidence to look something like Robert 27 Keane. This is, by any estimation, an extraordinary confluence of facts suggesting Keane was 28 involved in the attempted delivery of the marijuana. Moreover, after Brian Keane was arrested in

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New Jersey, McMullen obtained a picture of the New Jersey resident. Brian Keane and Robert Keane resembled each other enough that they could have been related. Taken together, these facts undoubtedly provide probable cause. For all these reasons, the facts established that probable cause existed to arrest Keane at the time McMullen completed his affidavit. Keane may or may not now be able to demonstrate that he did not deliver the package. This, however, is irrelevant. This Court must employ an objective analysis of the facts known to Special Agent McMullen at the time. Alexander, 29 F.3d at 1364. Keane was, at a minimum, extraordinarily unlucky to have numerous facts suggesting that he was the culprit. No fact adduced at the time, however, precluded a finding of probable cause. In

10 addition, there is no clearly established right to be excluded from further investigation under these 11 circumstances. Plaintiffs' argument that there was no probable cause therefore is meritless. 12 13 Plaintiffs suggest Special Agent McMullen must have been or should have been aware of 14 additional facts prior to issuance of the search warrant. 15 First, Plaintiffs claim Brian Keane had made allegedly exculpatory statements at the time 16 of his arrest in New Jersey and that these statements should have either convinced the Special 17 Agent he should not seek a warrant or that the statements should have been in the application for a 18 warrant. See FAC at ¶ 24. This argument fails for several reasons. Generally, Plaintiffs would 19 have to show deliberate or reckless false statements or omissions of relevant facts to negate the 20 21 Plaintiffs, however, cannot establish that such facts exist in this case. None of Brian Keane's 22 statements at the time of his arrest were the least bit credible­ indeed, they tended only to 23 incriminate him further. Specifically, at the time of his arrest, Brian Keane explained he suspected 24 the package contained a bomb, not marijuana. He nevertheless put the package in his car beside 25 his daughter. See Simmons Decl., Exh. 1(d). In addition, Brian Keane claimed he was taking the 26 27 28 An officer who submits an affidavit which he knows to be false cannot be said to have acted in a reasonable manner. Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005). Plaintiffs have not specifically alleged knowingly false statements in this case.
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(2)

The additional facts identified by plaintiffs do not establish a lack of probable cause.

facial showing of probable cause. See Franks v. Delaware, 438 U.S. 154, 155-156 (1978).3

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package to the Federal Express building. He nevertheless was driving in the wrong direction to get to the building. See Simmons Decl., Exh. 1(d). Brian Keane also claimed he did not know a C. Keane in California; nevertheless, after both denying and admitting he had a brother, he stated his brother's name was Chris. See Simmons Decl., Exh. 1(d). In light of this, the very premise of Plaintiff's argument­ that Brian Keane made credible exculpatory statements­ is simply untenable. More fundamentally, even if Brian Keane did give sensible statements, the DEA would no have been required to believe him. Crowe v County of San Diego, 359 F. Supp. 2d, 994, 1013-1014 (S.D. Cal.) (collecting cases). Also, there is no rule requiring every fact to be included in the affidavit. Instead, only material statements are relevant and only if the affidavit lacks probable

10 cause but for the omission of the statement. Here, the statements from Brian Keane were not 11 material, not believable and not a necessary part of Special Agent McMullen's probable cause 12 analysis. 13 Second, Plaintiffs allege that it is relevant that Brian Keane and Maureen McGuigan both

14 made statements at a later time (i.e., after the warrants were procured) that tend to exculpate 15 Robert Keane. See FAC at ¶¶ 21-24. This argument, too, lacks merit. Plaintiffs do not explain 16 how McMullen is supposed to have known the additional statements were going to be made. 17 Neither of the statements were made before Special Agent McMullen completed his affidavit­ a 18 document created under time constraints. See McMullen Decl., Exh. 2; Simmons Decl., Exhs. 19 1(f), 3(b). After Brian Keane was arrested, he obtained a lawyer and did not give a formal 20 statement until May 2, 2007­ several weeks after Special Agent McMullen completed his 21 affidavit. Simmons Decl., Exh. 1(f). Similarly, McGuigan apparently did not give an additional 22 statement tending to raise questions about her identification of Keane until months later. See 23 Simmons Decl., Exh. 3(a) (noting the case against Keane was not dismissed until about 4 months 24 after it was filed). Further, neither of the statements categorically exclude Robert Keane as the 25 person who sent the package. Brian Keane again claimed he did not have a brother in California 26 but declined to state who sent him the marijuana. Simmons Decl., Exh. Similarly, McGuigan 27 subsequently failed to identify Robert Keane in a line-up, but this must have been weeks or 28 months after she properly identified Robert Keane to Special Agent McMullen. See Simmons

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Decl., Exh. It is entirely reasonable that McGuigan would more easily identify the suspect one day after the attempted mailing of the package and still have trouble making the identification later. For all these reasons, Plaintiffs' claim that Special Agent McMullen should have considered these facts is meritless. Third, Plaintiffs allege Special Agent McMullen was reckless because he failed to establish that McGuigan was able to identify Keane in a lineup. This allegation is meritless. There is no obligation to conduct an eye witness line up as a prerequisite to obtaining a warrant. There is no authority that warrants cannot contain information that witnesses identified persons from a photograph. Further, there is no suggestion that Special Agent McMullen suggested in any way in

10 his affidavit that he conducted a photo lineup. This argument lacks any legal grounding at all and 11 should not be considered by the Court. 12 Fourth, Plaintiffs argue the birthdates of Robert and Brian Keane are too close that it was

13 reckless to suspect them of being brothers. This argument is odd. First, the birthdays do not 14 preclude the possibility that the two persons are brothers. See FAC ¶ 23 (the birthdays are more 15 than nine months apart). Second, Special Agent McMullen did not speculate in his affidavit that 16 Robert and Brian were brothers, only that they were related. Third, and more importantly, taken as 17 a whole, there would be probable cause to believe Robert Keane was involved in a crime even 18 without the possibility that the two were related. Accordingly, even if Plaintiffs were right that the 19 two were not related, this would not meet the test of demonstrating that "but for" the statement in 20 the affidavit, there was no probable cause. 21 In sum, none of the facts that Plaintiffs point to remotely suggest recklessness on the part

22 of Special Agent McMullen. Indeed, Plaintiffs' analysis of the evidence is far from credible. 23 Special Agent McMullen is entitled to summary judgment on Plaintiffs' investigation-related 24 claims. The undisputed facts demonstrate that there is no basis for opposing the entry of judgment 25 on these claims. 26 27 Even if this Court were to conclude that the warrants in this case are not supported by 28 probable cause or that additional facts should have been considered by Special Agent McMullen,
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b.

In Any Event, The Decision of the Prosecutor To File A Criminal Complaint Breaks The Chain of Causation.

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the law still precludes liability under the facts of this case. This case should be analyzed under the Ninth Circuit's decisions in Beck v. City of Upland, 2008 WL 2186300 (9th Cir. May 28, 2008). Pursuant to Beck, the Federal Defendants are entitled to summary judgment because the decision of the Sonoma County prosecutor to charge Keane with a crime operates to preclude liability for an alleged absence of probable cause. In Beck, the Ninth Circuit reaffirmed its previous holding that a prosecutor's independent judgment generally breaks the chain of causation between the unconstitutional actions of other officials and the harm suffered by a constitutional tort plaintiff. Beck, 2008 WL 2186300 *8 citing Hartman, 547 U.S. 250, 262-63, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Smiddy v. Varney, 665 F.2d 261, 266-68

10 ("Smiddy I ") (9th Cir.1981). "Put in traditional tort terms, the prosecutor's independent decision 11 can be a superseding or intervening cause of a constitutional tort plaintiff's injury, precluding suit 12 against the officials who made an arrest or procured a prosecution." Id. (citations omitted). It is 13 well-established under the Ninth Circuit law that the prosecutor's decision to file a criminal 14 complaint demonstrates the exercise of independent judgment "in determining that probable cause 15 for an accused's arrest exist[ed], thereby breaking the chain of causation between an arrest and 16 prosecution and immunizing investigating officers from damages suffered after the complaint was 17 filed." Id. at *8-9 (citations and internal quotations omitted). 18 Here, the chain of causation identified in Beck undoubtedly has been broken. The People

19 of the State of California, through Assistant Prosecutor Scott Jamar, decided to charge Keane with 20 two felony counts of violating the California Health and Safety Code. This is sufficient to 21 demonstrate that Plaintiffs' allegations regarding a lack of probable cause are precluded in this 22 lawsuit. Moreover, there are no facts to suggest that the prosecutor did not exercise independent 23 judgment. To the contrary, in the face of Keane's protestations of innocence, the prosecutor made 24 clear its position that probable cause existed for the warrants to issue. Accordingly, there is no 25 basis for Plaintiffs to pursue their investigation-related claims. 26 27 28 c. The Superior Court Judge Issued The Arrest and Search Warrants; This Is An Independent Basis For The Federal Defendants To Assert Their Qualified Immunity Defense.

The Ninth Circuit exercises a deferential review of the initial probable cause determination

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by a magistrate and will uphold it so long as the magistrate had a "substantial basis" for concluding probable cause existed based on the totality of circumstances. Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9thCir. 1994); compare United States v. Clark, 31 F.3d 813, 834 (9th Cir. 1994). In Where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. Malley v. Briggs, 475 U.S. 335, 345, fn. 9, 106 S. Ct. 1092 (1986). If a reviewing court, in giving deference to a magistrate's approval of the Search Warrant, finds the magistrate clearly erred and that there was not a substantial basis for the magistrate to believe that probable cause existed to issue the warrant based on the totality of the circumstances, the officer applying

10 for the warrant is still entitled to qualified immunity unless the warrant is so lacking in indicia of 11 probable cause that a reasonable officer would have known that his affidavit failed to establish 12 probable cause and that he should not have applied for the warrant. Greenstreet, 41 F.3d at 1309. 13 Specifically, the United States Supreme Court held that "only where the warrant application is so 14 lacking in indicia of probable cause as to render official belief in its existence unreasonable will 15 the shield of immunity be lost." Malley v. Briggs, 475 U.S. at 345; Mills, supra, 930 F.2d at 731. 16 Similarly, in KRL v. Estate of Moore, 512 F.3d 1184 (9th Cir. 1991), the Ninth Circuit

17 reiterated that reasonable minds frequently may differ regarding whether a particular affidavit 18 establishes probable cause, and that inadequate probable cause for a warrant does not necessarily 19 render an officer's belief in probable cause unreasonable. Id. at 1189 Thus, an officer who prepared 20 a warrant that lacked probable cause is entitled to qualified immunity unless the warrant is so 21 lacking in indicia of probable cause that "no officer of reasonable competence would have 22 requested the warrant." Id. 23 Here, the application of these authorities is clear. For all the reasons stated above, there

24 was probable cause for the arrest and search warrants in this case. But even if there were not, the 25 decision of Superior Court Judge Boyd was not so bereft of a reasonable basis that Special Agent 26 McMullen should never have pursued the warrant. Any argument to the contrary would strain 27 credulity. Special Agent McMullen is