Mendocino Envt'l Center v. Mendocino County

Decision Date15 April 1999
Docket NumberNo. 97-17375,97-17375
Parties(9th Cir. 1999) MENDOCINO ENVIRONMENTAL CENTER; BETTY BALL; GARY BALL, Plaintiffs, DARRYL CHERNEY; DARLENE COMINGORE, executor of the estate of Judi Bari, Plaintiffs-Appellees Cross-Appellants, v. MENDOCINO COUNTY, MENDOCINO COUNTY SHERIFF; TIM SHEA; BURL MURRAY, County of Mendocino Deputy Sheriff; DEPUTY SATTER WHITE; HUMBOLDT COUNTY;HUMBOLDT COUNTY SHERIFF'S DEPT; FRANK VULICH; CIARABELLINI; DAVID R. WILLIAMS; JOHN RIKES; CITY OF OAKLAND; OAKLAND POLICE DEPT; JAMES HAHN; RAMON PANIAGUA; CITY OF UKIAH; UKIAH POLICE DEPARTMENT; FRED KEPLINGER; FRANK DOYLE; RICHARD WALLACE HELD; PHIL SENA; STOCKTON BUCK; PATRICK J. WEBB; HORACE MEWBORN; WALT HEMJE; JOHN CONWAY; TIMOTHY MCKINLEY; EDWARD D. APPEL, Defendants, C. MICHAEL SIMS; ROBERT CHENAULT; MICHAEL SITTERUD, Defendants-Appellants Cross-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

Karen A. Rodrigue, Office of the City Attorney, Oakland, California, for the defendants-appellants.

Dennis Cunningham, San Francisco, California, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding

Before: Mary M. Schroeder, Stephen Reinhardt, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Reinhardt;Concurrence by Judge Schroeder

REINHARDT, Circuit Judge:

Shortly before noon on May 24, 1990, a bomb went off underneath Judi Bari's car seat as she drove through Oakland, California. The explosion severely injured Bari, a prominent leader of the environmental organization Earth First!, shattering her pelvis and causing other serious internal injuries that left her in constant pain for the rest of her life. The explosion also caused lacerations and other injuries to Darryl Cherney, another Earth First! activist and a passenger in Bari's car. Within twenty-four hours of the explosion, Oakland police officers placed Bari and Cherney under arrest. Along with the FBI agents assigned to the investigation, the Oakland police concluded that the two injured individuals had been transporting the bomb and that an explosion had accidently been triggered.

Shortly after Bari's arrest and immediately prior to Cherney's, the police obtained a warrant and searched Bari's residence; they later secured a second warrant for the same purpose. Law enforcement officials announced to the press their conclusion that Bari and Cherney were responsible for the explosion and released incriminating information about the two activists, much of which later turned out to be false. Less than two months after the explosion, the Alameda County District Attorney's Office having failed to find evidence of Bari and Cherney's culpability, announced that it declined to file charges against either of them.

In 1991, Bari and Cherney filed an action in federal court. The amended complaint included among the defendants several members of the Oakland police department and a number of FBI agents; it alleged that the arrests and the two searches violated Bari and Cherney's Fourth Amendment rights, and that federal and local law enforcement officers had entered into a conspiracy to accuse them falsely of responsibility for the explosion and thereby inhibit their political activities, all in violation of the First Amendment. The appellants on this interlocutory appeal are three Oakland police officer defendants. They assert that the district court erred in denying them summary judgment on their qualified immunity defense to the Fourth Amendment claims; at the same time, Bari and Cherney seek to cross-appeal and ask us to vacate the district court's grant of summary judgment in favor of appellants on the First Amendment and conspiracy counts.

This case is now before this court on interlocutory appeal for the second time.1 Although the action was filed over eight years ago, it has not yet reached trial. In the interim Bari has died from cancer.2 In January 1997, when she was informed by her doctor that she did not have long to live, Bari gave a deposition in this case and then died a little over a month later.

We affirm the district court's denial of appellant's motion for summary judgment on qualified immunity. We also exercise our discretion to decide the cross-appeal and hold that the plaintiffs have raised genuine issues of material fact as to whether the appellants participated in an illegal conspiracy and violated the plaintiffs' First Amendment rights. Accordingly, we vacate the part of the summary judgment order that granted judgment to appellants on those claims. 3

I. FACTUAL BACKGROUND

At the time the bomb exploded in her car, Bari, along with Cherney, was in Oakland, California, taking part in a speaking and concert tour to promote the upcoming Redwood Summer and to attract young people from all over the country to Northern California to protest logging practices. This organizing campaign had "generated considerable opposition and animus among individuals in the logging and timber industry," animus that the plaintiffs contend was shared by local and federal law enforcement officials. Mendocino Env'l Ctr., 14 F.3d at 459. As a prominent leader of Earth First!, Bari had led aggressive demonstrations and organizing campaigns against clear cutting practices, particularly those targeting old growth redwoods. In response to this very public and controversial environmental activism, she had received a number of death threats, which she had reported to the police in the county in which she resided.

The criminal investigation began at the scene of the explosion, where FBI agents were joined by local law enforcement officials, including the three appellants, Lieutenant C. Michael Sims, Sergeant Robert Chenault and Sergeant Michael Sitterud, of the Oakland Police Department. Although the FBI apparently took the lead in investigating the physical evidence, the appellants were present at the crime scene and examined that evidence, in particular Bari's car and the effect the explosion had on it. They directly observed the most obvious damage: a large hole below the place where the driver's seat was located -a hole that extended backward into the area between the front and back seats and forward almost to the gas and brake pedals.

The Arrests of Bari and Cherney and the First Search Warrant

Most of the events out of which this lawsuit arises occurred during the twenty-four hour period immediately following the explosion. At 3:00 p.m., just a few hours after the bomb went off, Bari was arrested in her hospital bed.4 Later that evening, FBI Special Agents (SAs) Reikes and Doyle briefed a group of Oakland police officers, including Lieutenant Sims, Sergeant Chenault and Sergeant Sitterud, about the progress of their investigation, reporting the preliminary conclusions that they had drawn from the physical evidence and recounting their suspicions that in the past Earth First! had been involved in incidents of environmental sabotage. The district court identified a number of factual disputes regarding the content of this briefing, disputes that are relevant because of the appellants' contention that the first search warrant affidavit (and, indeed, the second) was based largely on the information provided at that time.5 Lieutenant Sims also purports to have relied on the same general information, allegedly provided by the FBI both at the briefing and in less formal conversations, as the basis for his decisions to arrest both individuals.6

The search warrant affidavit, prepared and signed by Sergeant Chenault, identified the following as factors supporting probable cause to search Bari's residence: the FBI agents' conclusion that the bomb had been located on the floor behind the driver's seat, making it visible to the car's occupants -a conclusion based principally on SA Doyle's observation that the hole caused by the bomb was "immediately behind the driver's seat;" SA Doyle's report that the nails used in the bomb were "identical" to nails found in a bag in Bari's car; the affiant's belief (which he subsequently testified was based on statements by FBI agents) that Earth First! was a "violent terrorist group;" interviews that Sergeants Chenault and Sims had conducted with two Seeds of Peace activists who had told them that Earth First! had a violent reputation; and statements made by Bari and Cherney shortly after the explosion demonstrating that they knew that a bomb had exploded.

On the basis of the Chenault affidavit, at 2:21 a.m. on May 25, the Oakland municipal court issued a warrant to search Bari's residence. At 3:00 a.m., Sergeant Sitterud formally arrested Cherney. Before his arrest, Cherney had consented to an FBI search of his van, which led to the discovery of what Sergeant Sitterud characterized as "a road spiking kit."7 That was the only information that supported Cherney's arrest other than that contained in the affidavit.

The Anonymous Letter and the Second Search Warrant

On May 29, an anonymous letter was sent to a local reporter by someone calling himself "the Lord's Avenger." This letter claimed responsibility for, and included detailed accurate information about, both the bomb that exploded in Bari's car and a pipe bomb explosion near a lumber company office building that had taken place two weeks earlier.

In part on the basis of an alleged need to look for evidence that Bari was the author of the "Lord's Avenger " letter, the police sought and obtained a second warrant to search her home. Sergeant Sitterud prepared the affidavit in support of this warrant, which attached the affidavit used to obtain the first search warrant and added a new piece of information: The new affidavit said that SA David Williams, a member of the FBI's Explosives Unit, had found that the tool marks on nails...

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