KEANE v. McMULLEN Case No. C 07-4894 SBA.
898 F.Supp.2d 1157 (2012)
Robert Carl Patrick KEANE, individually; and Chieko Strange, individually, Plaintiffs, v. Seth M. McMULLEN, Paul Accornero, and John Silva, Defendants.
United States District Court, N.D. California, Oakland Division.
August 13, 2012.
Abraham A. Simmons, U.S. Attorney's Office, James M. Wood, Reed Smith LLP, San Francisco, CA, Kimberly E. Colwell, Tricia L. Hynes, Meyers Nave Riback Silver & Wilson, Oakland, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Dkt. No. 160.
SAUNDRA BROWN ARMSTRONG, District Judge.
Plaintiffs Robert Carl Patrick Keane ("Keane") and his girlfriend, Chieko Strange ("Strange"), bring the instant Bivens
The parties are presently before the Court on Defendants McMullen and Silva's motion for summary judgment. Dkt. 160. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS the motion with respect to Plaintiffs' claim for judicial deception against Silva, and DENIES the motion in all other respects. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
A. FACTUAL SUMMARY
1. Discovery of Package Containing Marijuana
At around 10:30 a.m. on November 29, 2006, a man entered the Mail Depot in Petaluma, California, to ship a package. McGuigan Decl. ¶ 2, Dkt. 66. The customer informed Maureen McGuigan, the owner of Mail Depot, that the delivery address was 36 Sandy Point, Brick, NJ 08723, which she then entered into the store computer. Id. ¶¶ 1-2. The package listed the following return address: "C. Keane, 307 N. Ferndale Ave., Mill Valley, CA 94941. Id. ¶ 4. Ms. McGuigan asked the man for his telephone number; but citing privacy concerns, he refused to provide the requested information. Id. ¶ 5. At this point, Ms. McGuigan became suspicious and asked the customer whether his package contained marijuana. Id. He stated that it did not, and claimed that the package contained clothes for his niece. Id. ¶¶ 6-7. After the customer left the store, Ms. McGuigan placed the package in a bin for shipments to be sent out that day. Id. ¶ 7.
Within an hour of his departure from the store, the customer called Ms. McGuigan and asked her to change the shipping address from 36 Sandy Point Road to 39 Sandy Point Road. Id. ¶ 9. When Ms. McGuigan entered the new address into the store computer, she noticed that on or about May 31, 2006, a prior shipment had been made to an address on Sandy Point Road in New Jersey. Id. ¶ 10. The call reminded Ms. McGuigan of her earlier suspicions, prompting her to open the package. Id. ¶ 12. Upon doing so, she discovered what she believed were bags containing marijuana. Id. Ms. McGuigan
At around 2:00 p.m., Ms. McGuigan took the package to the Petaluma Police Department where she met with Officer Jim Stephenson. Id. ¶ 14. She spoke with Officer Stephenson for around forty-five minutes to an hour recounting the events summarized above, and provided a physical description of the customer. Id. ¶¶ 15-16. Officer Stephenson took custody of the package and Ms. McGuigan returned to her store. Id. ¶ 17. Later in the day, Officer Stephenson and another officer arrived at Mail Depot and showed Ms. McGuigan an 8 1/2" x 11" photo array of six individuals and asked her whether any of them was the customer. Id. ¶ 19. She responded that none of them was the person she encountered earlier. Id. ¶ 20.
Officer Stephenson then called Defendant McMullen and relayed the information provided by Ms. McGuigan. McMullen Decl. ¶ 2, Dkt. 16. The next day, November 30, 2006, McMullen and SA Jeff Hoyt took custody of the package. Id. McMullen verified that the return address on the package was an actual, physical address, and that Plaintiff Keane resided there. Id. ¶ 4. Later in the day, McMullen and SA Hoyt travelled to Mail Depot and showed Ms. McGuigan a 3" x 5" enlargement of Plaintiff Keane's California Identification Card; the card was unredacted and displayed Keane's picture, name and address. McGuigan Decl. ¶ 25. McMullen asked whether the person on the identification card was the customer who attempted to mail the package containing marijuana. Id. ¶ 26. After looking at the photograph for about thirty seconds, she responded that it "looked like" the person who had attempted to mail the package the day before. Id. ¶ 27. Ms. McGuigan has no recollection of having been asked how certain she was that the person pictured in the card was, in fact, the sender of the package. Id. ¶ 28.
McMullen subsequently sent the package to Brick Township Police in New Jersey for a "controlled delivery," which resulted in the arrest of Brian and Susan Keane on December 1, 2006. McMullen Decl. ¶ 4. Brian Keane denied ownership of the package. Foster Decl. Ex. C at 4, Dkt. 122-11. When asked whether he had any relatives with the first initial "C.," Brian Keane responded that he had a brother named "Chris." Id. The ensuing investigation following the arrest, however, did not reveal and familial connection between the Keanes in New Jersey and Plaintiff Keane in California. Id. In addition, no one involved in the Brink Township investigation identified Plaintiff Keane as the sender of the package. Foster Decl. Ex. 1 ("McMullen Depo.") at 105:4-7, Dkt. 122-1.
2. McMullen Obtains Search and Arrest Warrants
At some point during the investigation, McMullen decided to obtain a search warrant for Plaintiff Keane's home at 307 N. Ferndale Ave., Mill Valley, CA 94941, as well as an arrest warrant for Keane. McMullen Decl. ¶ 6. On December 15, 2006, McMullen submitted applications for a search warrant and arrest warrant to the Sonoma County Superior Court, which issued the requested warrants. Id.
In his affidavit supporting the search warrant application, McMullen expressly represented that "McGuigan positively identified the individual in the photo as the person who dropped the package off a day earlier for shipment to the New Jersey address." Foster Decl. Ex. 2 ("Search Warrant Aff.") ¶ 7 (emphasis added), Dkt. 122-3. He further asserted that Ms.
3. Execution of the Warrants
The search warrant obtained by McMullen was for Plaintiffs' residence at 307 N. Ferndale Ave., Mill Valley, CA 94941. The residence at that address is a small, split level, two-bedroom A-frame house, located in a quiet residential area, which Keane and Strange have owned since 2002. Keane Decl. ¶¶ 3-4, Dkt. 68. The front door opens into a common open area with a kitchen and family room area. Id. & Exs. A, B. Above the common area is a loft which is adjacent to the bedrooms. Id. ¶ 4. The loft is visible from outside the front glass door. Id.
At around 7:30 a.m. on December 19, 2006, Plaintiffs, both of whom were employed as sale representatives at Saks Fifth Avenue, were upstairs in their home, preparing for work. Keane Decl. ¶ 6; Strange Decl. ¶ 4, Dkt. 69.
As they entered Plaintiffs' home, the officers pointed their weapons at Plaintiffs and repeatedly shouted, "Where are your weapons?" and demanded that they "[g]et down on the floor." Keane Decl. ¶¶ 13, 17; Strange Decl. ¶ 9. Plaintiffs do not own any weapons, were unarmed and did not take any action to challenge the officers' entry into their home. Keane Decl. ¶ 16; Strange Decl. ¶ 7. Still unaware of the apparent intruders' identity or the reason for their presence, Keane and Strange, fearing for their safety, complied with the order to lie down. Keane Decl. ¶ 18. Keane asked "Who are you?" at least three times, as McMullen and the others continued to point their weapons at Plaintiffs. Id. ¶¶ 19-20. McMullen responded, "You know why we're here." Id. ¶ 21; Strange Decl. ¶ 12. Once on the floor, Plaintiffs were handcuffed. Keane Decl. ¶ 22. The handcuffs were applied tightly, causing Keane pain. Id. ¶ 23. In addition, McMullen or one of the other officers stepped on Strange's head with what was believed to be his boot. Id. ¶ 24; Strange Decl. ¶ 13. While on the floor, Keane observed a patch on one of the uniforms which read "DEA Santa Rosa Drug Task Force." Keane Decl. ¶ 22.
Following completion of the bathroom interrogations, McMullen and Silva led Plaintiffs to the living room and sat them across from each other. Strange Decl. ¶ 27. Strange attempted to ask Keane what was happening, prompting one of the officers, believed to be McMullen, to yell, "Shut up or I will put your face against the wall." Id. ¶ 28. McMullen, Silva and the others continued to rifle through Plaintiffs' personal belongings for over an hour, but found nothing incriminating, much to their visible frustration. Id. ¶ 26; McMullen Depo. at 325:22-327:15.
McMullen and Silva placed Keane under arrest. Keane Decl. ¶ 40. As Keane was being escorted out, Silva uncuffed Strange so that she could sign an inventory of items being taken from her home. Strange Decl. ¶ 32. She asked where Keane was being taken, prompting McMullen to shout back in an agitated voice, "He's going to jail!" Id. ¶ 33. At this point, Silva produced what turned out to be the search warrant which he left on the table without explanation. Id. ¶ 34. The raid left Plaintiffs' home damaged and in disarray. Id. ¶ 36. Among other things, Plaintiffs found that the officers had broken their front gate, damaged their hardwood floors, tore a kitchen cabinet door off its hinges, tore their couch, scratched an antique chest, and damaged their front yard fence. Keane Decl. ¶ 46.
4. Post Raid Events
McMullen and Silva brought Keane to the Sonoma County Main Detention Center, where he was physically searched by a female officer in the presence of both McMullen and Silva. Keane Decl. ¶ 43. During the search, Keane's buttocks became exposed, to the apparent amusement of both Defendants. Id. The female officer apologized to Keane for the manner in which he was being treated. Id. Keane spent the day in jail until Strange was able to post $20,000 bail. Id. ¶ 44.
The Sonoma County District Attorney's Office conducted its own investigation. An investigator with the office showed Ms. McGuigan a six-person photo array and she identified a person other than Plaintiff Keane. Foster Decl. Ex. 9, Dkt. 122-10. Ultimately, the District Attorney's Office concluded that Keane was not involved in the attempted shipment of marijuana to the Keanes in New Jersey, and dismissed the case in the interest of justice on March 31, 2007.
B. PROCEDURAL HISTORY
On September 20, 2007, Plaintiffs Keane and Strange filed a Complaint in this Court against McMullen, Silva and Accornero. Dkt. 1. By stipulation of the parties, Plaintiffs filed a First Amended Complaint ("FAC") on February 19, 2008. Dkt. 18, 20. The FAC, which is the operative pleading, alleges two claims; the first under 42 U.S.C. § 1983 and the second pursuant to Bivens. Both claims are predicated on the same conduct, namely: (1) submitting a search warrant affidavit in reckless disregard for the truth; (2) entering Plaintiffs' home in violation of the "knock and announce" rule; (3) illegally entering Plaintiffs' home and arresting Keane without probable cause; and (4) using excessive force in the course of executing the search warrant and arresting Keane. See FAC ¶ 43, 48.
Defendants filed motions for summary judgment with respect to all claims alleged in the FAC. Dkt. 104, 107, 108. On February 2, 2009, the Court stayed the action and denied the pending motions without prejudice due to McMullen having been recalled to active military duty. Dkt. 134. Upon McMullen's return, the Court lifted the stay on August 17, 2011, and referred the matter for a mandatory settlement conference. Dkt. 139, 141. The parties participated in a settlement conference before Magistrate Judge Elizabeth D. Laporte and reached a settlement as to Accornero only. Dkt. 145, 148.
On April 17, 2012, Defendants McMullen and Silva renewed their motions for summary judgment. Dkt. 151, 152. Because the motions failed to comply with the Court's Standing Orders, the Court struck Defendants' briefs. Dkt. 159. In accordance with the Court's directions, Defendants filed a single, renewed summary judgment motion on May 29, 2012. Defs.' Mot. for Summ. J. ("Defs.' Mot."), Dkt. 160.
In their renewed summary judgment motion, Defendants contend that Silva is entitled to summary judgment on the ground that he was not involved in the investigation leading to the issuance of the search warrant or the initial entry into Plaintiffs' home. Id. at 2. As to McMullen, Defendants contend Plaintiffs' "investigation-related claims" fail on the basis of qualified immunity. Id. at 3. Defendants further argue that McMullen is entitled to summary judgment on Plaintiffs' excessive force claim on the grounds that Plaintiffs have not specifically identified him as the person who handcuffed Keane or restrained Strange with his boot or other object. Id. The motion has been fully briefed and is ripe for adjudication. Dkt. 162, 163.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment on some or all of the claims or defenses presented in an action. Fed. R.Civ.P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.; see Anderson v. Liberty Lobby, Inc.,
"On a motion for summary judgment, `facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 586,
A. CLAIMS UNDER 42 U.S.C. § 1983
The threshold question presented is whether Plaintiffs' claims against Defendants McMullen and Silva should be construed as Bivens claims or claims under 42 U.S.C. § 1983. The FAC alleges claims under Bivens and § 1983 as to both McMullen and Silva, based on the same conduct. See FAC ¶¶ 43, 48. Under Bivens, a plaintiff may bring a civil action for constitutional violations committed by federal employees or their agents. See Western Radio Servs. Co. v. U.S. Forest Serv.,
Defendants contend that Plaintiffs' claims are Bivens claims, and therefore, all claims under § 1983 must be dismissed. Defs.' Mot. at 19-20. Specifically, Defendants argue that 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." Id. at 2 n. 1. Perhaps so, but Defendants fail to provide any citation to the record in support of this assertion. As such, the Court is unable to determine the veracity of this contention. See Indep. Towers of Wash. v. Wash.,
B. INVALID SEARCH WARRANT
The Fourth Amendment protects individuals against unreasonable searches
A claim based on an invalid search warrant may be based on a claim of judicial deception; that is, the defendant misled the magistrate when applying for the warrant, and had the magistrate considered all of the facts, she would not have found probable cause. Chism v. Wash. State,
Defendants contend that McMullen is insulated from liability under the doctrine of qualified immunity. Defs.' Mot. at 15-16. "Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Haugen,
a) Constitutional Violation
Defendants argue that Plaintiffs have failed to make a substantial showing that McMullen misled the state court which issued the search warrant, and a fortiori, there was no constitutional violation as a matter of law. See Defs.' Mot. at 17. This contention is uncompelling. The record shows that there was a dearth of evidence linking the marijuana to Plaintiff or his residence. Though Plaintiff Keane's first initial and surname, along with his home address, were listed as the return
No doubt aware of the lack of facts to establish a nexus between the package and Plaintiff, McMullen attempted to forge such a connection by affirmatively representing that Ms. McGuigan — the owner of Mail Depot and the only person to actually have seen the sender — "positively identified the individual in the photo [i.e., Keane] as the person who dropped the package off a day earlier for shipment to the New Jersey address." Search Warrant Aff. ¶ 7 (emphasis added). In fact, Ms. McGuigan made no such positive identification. To the contrary, Ms. McGuigan merely thought, after pondering the photograph for thirty seconds, that it "looked like" the person who attempted to send the package of marijuana to the Keanes in New Jersey. McGuigan Decl. ¶¶ 27-28 (emphasis added). Notably, Ms. McGuigan offered her tentative and equivocal statement of resemblance only upon being shown a photocopy of Keane's California Identification Card, which displayed his photograph, full name and address — which matched the return address on the package. Id. Ms. McGuigan's highly suggestive identification is hardly the type of "positive identification" which McMullen represented in his affidavit. Given that McMullen was the individual who solicited the identification from Ms. McGuigan, a reasonable trier of fact could conclude that his mischaracterization that she "positively identified" Keane as the sender was deliberately false or, at a minimum, in reckless disregard for the truth.
Similarly, McMullen misstated that, "McGuigan also said that on May 31, 2006, another package with an unknown sending address, was sent to 39 Sandy Point Drive, Brick, New Jersey 08723." Search Warrant Aff. ¶ 7 (emphasis added). In fact, the earlier package was sent to 36 Sandy Point Drive, not 39 Sandy Point Drive. McGuigan Decl. Ex. B. In addition, McMullen omitted the fact that Mail Depot's database showed that the sender was "Bob Hart" and contained his telephone number. Id. Had McMullen contacted that telephone number, he could have confirmed that said number was for Bob Hart, and that Mr. Hart would have denied having ever shipped any packages from Mail Depot in Petaluma. Keane Decl. ¶ 48.
Finally, McMullen omitted exculpatory information from the Brick Township investigation that would have further undermined any nexus between the illicit package and Plaintiffs. When asked whether he had any relatives with the first initial "C.," Brian Keane, the recipient of the
b) Clearly Established
Defendants do not address the second prong of the qualified immunity inquiry, which concerns whether Plaintiffs' constitutional rights were clearly established at the time of the incidence. Chism, 661 F.3d at 392. Nonetheless, the Court's determination that Plaintiffs have made an adequate showing of judicial deception to avoid summary judgment is dispositive of the qualified immunity inquiry. Id. at 393 (holding that "[i]n judicial deception cases, [the] qualified immunity analysis at the summary judgment stage is swallowed by the question of reckless or intentional disregard for the truth.").
Accordingly, the Court finds that McMullen is not entitled to qualified immunity on Plaintiffs' claim for judicial deception and therefore DENIES summary judgment as to McMullen on said claim.
Defendants contend that they are entitled to summary judgment as to Plaintiffs' invalid search warrant claim against Silva on the ground that he was not involved in the investigation of Plaintiffs or the procurement of the search and arrest warrants. Pls.' Mot. at 13. Plaintiffs do not address, let alone dispute, Defendants' argument. Accordingly, the Court GRANTS summary judgment in favor of Silva on Plaintiffs' claim for judicial deception.
C. EXCESSIVE FORCE
Plaintiffs allege that Defendant used excessive force in the course of executing the search and arrest warrants and in arresting Keane. The Fourth Amendment requires law enforcement officers "to use only an amount of force that is objectively reasonable in light of the circumstances facing them." Blankenhorn v. City of Orange,
As will be set forth below, the Court finds that there are genuine disputes of material fact as to whether McMullen and Silva used excessive force which preclude summary judgment on this claim.
Defendants argue that Silva is entitled to summary judgment on the ground that Plaintiffs have failed to attribute specific instances of excessive force to him. Defs.' Mot. at 13-15. As a general matter, liability may be imposed on an individual defendant under § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right: See Leer v. Murphy,
An officer is an integral participant where she "participated in some meaningful way" in the actions which gave rise to the constitutional violation. Id. Thus, for instance, "an officer who does not enter an apartment, but stands at the door, armed with his gun, while other officers conduct the search, can nevertheless be a `full, active participant' in the search." Id. (citing James ex rel. James v. Sadler,
Here, Defendants argue that Silva was nothing more than a bystander, and that it was McMullen who was responsible for executing the search warrant, entering Plaintiffs' home and arresting Keane. Defendants' attempt to minimize Silva's role is unavailing. Silva was part of the law enforcement team whose purpose it was to enter and search the residence and ultimately arrest Keane. McMullen Depo. 215:10-219:4. At the outset of the raid, Silva guarded the perimeter of Plaintiffs' residence with his weapon drawn to intercept anyone trying to escape the house. Foster Decl. Ex. 11 ("Silva Depo.") at 83:19-84:3; 97:11-17, 103:2-6, Dkt. 122-12. This alone is sufficient to render him an integral participant potentially liable for excessive force. See Boyd, 374 F.3d at 780.
In addition, Silva acknowledges that he entered Plaintiffs' home, was involved in the search of the premises, and interrogated Plaintiffs. Silva Depo. at 129:18-23, 149:19-24, 152:11-13. Far from being a mere bystander, Silva was integrally involved in the raid upon Plaintiffs' home, the alleged mistreatment of Plaintiffs and Keane's arrest. See Liston v. County of Riverside,
Defendants next contend that McMullen is entitled to summary judgment on Plaintiffs' excessive force claim on the grounds that they have failed to specifically identify him as the individual responsible for applying unreasonable force. Defs.' Mot. at 18-19. However, the evidence shows that McMullen, among others, had his weapon pointed at Plaintiffs from the time of entry into their home until they were placed on the floor face down. McMullen Depo. at 264:21-266:11; Keane Decl. ¶ 19, 22; Strange Decl. ¶¶ 9, 11. Plaintiffs were unarmed, did not challenge the officers' authority and ostensibly posed no particular danger to them. Id. Under controlling Ninth Circuit authority ignored by Defendants, such conduct may give rise to a claim for excessive force. See Robinson v. Solano County,
In addition, there is a question of fact regarding whether Defendants' handcuffing of Plaintiffs violated their Fourth Amendment rights. "[D]etaining a person in handcuffs during the execution of a warrant to search for evidence is permissible, but only when justified by the totality of the circumstances." Meredith v. Erath,
Defendants attempt to make much of Plaintiffs' confusion over which Defendant was responsible for each alleged constitutional violation. According to Defendants, Plaintiffs initially identified McMullen as the person was responsible for stepping on Strange's head with his boot and pulling Keane up with the chain on the handcuffs, but that when deposed, they equivocated regarding which officer was responsible. Defs.' Mot. at 10. Defendants also contend that Plaintiffs have confused McMullen for Silva and vice-versa. Id. at 11. However, any uncertainties in Plaintiffs' identification of McMullen and Silva are pertinent to Plaintiffs' credibility, which cannot be resolved on summary judgment.
Moreover, there is ample, consistent testimony and evidence to support Plaintiffs' excessive force claim against McMullen. McMullen obtained the search and arrest warrants, planned the raid, and was "in charge" of the operation. McMullen Depo. at 215:10-217:22, 219:1-4, 242:1-4. At his deposition, McMullen admitted that he was stationed at Plaintiffs' front door, and that he was the first to enter the residence with his weapon drawn as soon as he observed Keane. Id. at 221:2-9, 243:7-10, 251:6-18, 264:21-24, 266:6-11. McMullen also conceded that both he and Silva interrogated Plaintiffs while they were handcuffed and seated on the toilet, id. at 283:25-284:2, 285:3, 291:11-18, 299:2-4, and that one of them arrested Keane, id. at 320:13-17. Although Plaintiffs may have exhibited some confusion regarding which of the remaining Defendants was responsible for each specific act, Defendants' contention that they had no involvement in any of the acts giving rise to this lawsuit will also be within the province of the finder of fact to consider. At trial, Defendants will have the opportunity to examine Plaintiffs regarding their allegedly inconsistent identifications. Defendants' motion for summary judgment on Plaintiffs' claim of excessive force against McMullen is therefore DENIED.
D. KNOCK AND ANNOUNCE
Plaintiffs allege that Defendants violated Plaintiffs' constitutional rights by entering their home without complying with the "knock and announce" rule. Absent exigent circumstances, the law requires that "officers entering a dwelling pursuant to a search warrant announce their purpose and authority and either wait a reasonable amount of time or be refused admittance before forcibly entering the residence." United States v. Bynum,
Defendants do not address Plaintiffs' knock and announce claim in their moving papers, but in their reply, contend that Plaintiffs have "insufficient evidence" to support such a claim. Defs.' Reply at 9. The Court typically does not consider arguments that are "not specifically and distinctly argued in [the] opening brief[.]" Dream Games of Ariz., Inc. v. PC Onsite,
For the reasons set forth above,
IT IS HEREBY ORDERED THAT
1. Defendants' Motion for Summary Judgment is GRANTED IN PART and
2. This matter is REFERRED to Magistrate Judge Elizabeth Laporte for a mandatory settlement conference to take place within sixty (60) days of the date this Order is filed.
3. This Order terminates Docket 160.
IT IS SO ORDERED.
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