Opinion
Civil No. 00-580-HA.
November 3, 2000
Paul Loney, Portland, OR., Attorney for Plaintiff.
Ronald K. Silver, Assistant United States Attorney, Portland, OR., Attorney for Defendants Sparrow, Howell, Shepard, and MacPherson.
OPINION AND ORDER
I. INTRODUCTION AND BACKGROUND
Pursuant to 28 U.S.C. § 1983, plaintiff brings this civil action against the City of Portland, Portland police officers, and federal law-enforcement officials. He alleges that the defendants obtained through false statements a warrant to search his residence and place of business for materials depicting or used to depict child pornography. (Complaint at ¶ 18.)In addition, he alleges that the defendants who were not involved in procuring the warrant failed to investigate the information given them concerning plaintiff. (Id.) During the search, media were present outside his house, and the officers confiscated video-production equipment. (Id. at ¶¶ 22-23.) Plaintiff alleges that the search was conducted because he has consistently advocated changes in local law enforcement and in the laws criminalizing marijuana. (Id. at ¶¶ 17 and 24-25.) He also alleges that the video equipment confiscated by the officer was used "to direct and produce cable access shows for the United States Atheists and the Campaign for the Restoration and Regulation of Hemp, (CRRH), a cannabis law reform group. "(Id. at ¶ 24.)
As a result, plaintiff claims that the officers violated his constitutional rights:(1) "when they interfered and stopped his ability to communicate his political message in seizing his property"; and (2) "when they caused the search to be issued and in executing the warrants, knowing they had no reason for the search warrant and its execution. "(Id. at ¶¶ 33 and 37.) The complaint also appears to contain an additional claim regarding the presence of media at the search. (Id. at ¶ 22.)
Plaintiff's complaint contains only two "claims," but his factual allegations also contains allegations which he may or may not intend to act as additional claims. Because of the way in which the complaint has been drafted, the court is uncertain whether plaintiff is attempting to allege multiple violations of his constitutional rights under each "claim." In his amended complaint, plaintiff shall separately delineate each and every claim he intends to bring against the defendants. See F.R.C.P. 8.
The federal defendants (Adriene Sparrow, Masayo Howell, John Shepard, and Donald MacPherson) have moved for dismissal of plaintiff's complaint on a number of bases discussed in turn below.
Plaintiff's response appears on the back of a pleading apparently filed in another case. Plaintiff is advised that further submissions which fail to comply with this court's local rules shall be stricken.
II. DISCUSSION
A. Bivens Action .
The federal defendants correctly note that plaintiff's complaint alleges only that the officers violated the Fourteenth and Fourth Amendments. As an initial matter, the Fourteenth Amendment applies to state, not federal conduct. The only basis for plaintiff's warrant misconduct claims against the federal defendants is an action brought under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which plaintiff has not alleged. Additionally, a Bivens action can be maintained only against the officers in their individual capacity, not their official capacity. Daly-Murphy v. Winston, 837 F.2d 348, 356 (9th Cir. 1988). In his response, plaintiff acknowledges that his complaint fails to allege a proper basis for his claims against the federal defendants. He requests that he be allowed to correct this defect in an amended complaint. That request is granted.
B. Presence of Media .
Plaintiff alleges that members of the local media accompanied the defendants during the searches. The defendants, however, have filed declarations averring that the media did not enter his property during the searches. In addition, the Supreme Court decisions restricting media access during searches were predicated upon the media's entrance into the suspect's home. Wilson v. Layne, 526 U.S. 603 (1999); Berger v. Hanlon, 526 U.S. 808 (1999). In his response, plaintiff acknowledges that there is no basis for this claim. Therefore, it shall be dismissed.
C. Supplying False Information to Obtain the Search Warrant .
Plaintiff alleges that the search warrant was obtained on false information that he possessed child pornography and that the federal defendants knew the affidavit supporting the search warrant was false. This claim is subject to a heightened pleading standard:
A plaintiff's complaint must contain non-conclusory allegations that the defendant knowingly included false statements in the affidavit or did so with reckless disregard. That is, he must (1) point out specifically the portion of the warrant affidavit that is claimed to be false, and (2) allege some facts tending to show that the defendant was aware or should have been aware of the falsity of those statements. (3)He must also allege that the false statements were necessary to the finding of probable cause, but without the particularity required of his allegations regarding the defendant's state of mind.Mendocino Environmental Center v. Mendocino County I, 14 F.3d 457, 463 (9th Cir. 1994). Plaintiff's allegations are no more than naked conclusions without a supporting factual basis; however, he notes that the warrant affidavit is still under seal and, therefore, he cannot point out the specific portions of the affidavit that were false. Defendant cites Tenth Circuit authority for the proposition that plaintiff must meet the heightened pleading requirements even when the affidavit is under seal. In Breidenbach v. Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997), the Tenth Circuit stated, "While we recognize that the plaintiffs have not had access to the warrant affidavit — which the issuing judge sealed in an unrelated criminal proceedings — we cannot subject a government official to discovery based on a complaint which is supported only by conclusory allegations and speculation of a constitutional violation. "Id. Although the Tenth Circuit recognized that its ruling left plaintiffs in a "Catch 22" situation, it reasoned that before filing the complaint, the plaintiffs should have attempted to obtain the affidavit, for instance, by seeking an order unsealing the affidavit from the judge who authorized the warrant. Id. at 1294. This court is persuaded, however, that the Ninth Circuit would not follow Breidenbach.
Breidenbach rests on the questionable assumption that before a complaint has been filed, a civil-rights plaintiff could obtain the necessary information to meet the heightened pleading requirements. Without the aid of civil discovery techniques, this court doubts that potential civil-rights plaintiffs could obtain the sealed affidavit or discover information about the officers conduct in making the false statements. Thus, the rule announced in Breidenbach would only serve to insulate sealed false affidavits from legitimate challenges to their veracity. As a result, this court concludes that the Ninth Circuit would not follow Breidenbach, and plaintiff is excused from meeting the heightened pleading requirements until he is able to review the affidavit. Consequently, the motion to dismiss this claim is denied.
Ironically, when an affidavit is sealed, the plaintiff is put in a position of having to allege that the affidavit is false without ever having seen the affidavit. Rule 11 does require, however, that a plaintiff in civil cases have a good-faith basis for his allegations. In this situation the court reads Rule 11 as requiring that before the complaint is filed, the plaintiff must have a good-faith basis for believing that the affidavit, when reviewed, will contain falsehoods, and that if, after reviewing the affidavit and related discovery, his allegations prove unfounded, he must dismiss the complaint.
D. Execution of the Search Warrant .
Defendants read plaintiff's complaint as alleging a claim that the defendants violated his rights by executing a defective search warrant. Although a police officer generally has qualified immunity for conducting an unconstitutional search if he is acting on the basis of a facially valid warrant, qualified immunity does not exist if no reasonably competent officer would have concluded that the warrant should have been issued. Barlow v. Ground, 943 F.2d 1132, 1139-40 (9th Cir. 1991). Plaintiff alleges that the federal defendants knew the affidavit supporting the warrant was false. As discussed above, because the affidavit is sealed, plaintiff is unable to provide a more detailed factual basis for this claim. As a result, defendant's motion to dismiss this claim is denied.
Although the complaint itself is vague in this regard, plaintiff's response suggests that he does intend to present such a claim. If so, in his amended complaint, plaintiff shall properly plead the claim as a separate ground for recovery.
E. Failure to Investigate .
Plaintiff also appears to allege a claim that in executing the warrant, the federal defendants failed to investigate information given to them by Portland police officers. "Although a police officer is entitled to rely on information obtained from a fellow law enforcement officer, this in no way negates a police officer's duty to reasonably inquire or investigate these reported facts." Mendocino Environmental Center v. Mendocino County II, 192 F.3d 1283, 1293 (9th Cir. 1999). While plaintiff's allegations are conclusory, as noted above, the affidavit supporting the warrant has been sealed, and plaintiff has not been able to conduct discovery. Therefore, the motion to dismiss shall be denied.
Again, if plaintiff intends to make this claim, it should be alleged separately in the complaint.
F. First Amendment .
Finally, plaintiff alleges that the defendants searched his property and confiscated his video equipment in order to interfere with plaintiff's cable-access television show criticizing the nation's drug laws as well as local law-enforcement agencies. See Mendocino I, 14 F.3d at 465 (recognizing a claim against law-enforcement for conspiring to interfere with free-speech rights, in the context of a warrant obtained on allegedly false grounds). Obviously, plaintiff's claim relies on his premise that the defendants engaged in misconduct in order to obtain the warrant authorizing the search and seizure of his property. Therefore, the federal defendants' challenge to plaintiff's First Amendment claim is premature, and the motion to dismiss shall be denied.
III. Conclusion.
The motion to dismiss and for summary judgment, (doc. 9), is granted in part and denied in part as follows: Plaintiff's claim that the defendants violated his constitutional rights by allowing the media to accompany them on the search is dismissed with prejudice. The remainder of the motion to dismiss is denied. Furthermore, plaintiff's motion to amend, (doc. 18), is granted. On or before December 1, 2000, plaintiff shall file an amended complaint alleging a proper basis for a Bivens action and correcting the other deficiencies in his complaint.
IT IS SO ORDERED.