641 F.2d 711 (9th Cir. 1981), 78-3134, Canlis v. San Joaquin Sheriff's Posse Comitatus

Docket Nº:78-3134.
Citation:641 F.2d 711
Party Name:Michael N. CANLIS, Sheriff-Coroner, County of San Joaquin; et al., Plaintiffs- Appellants, v. SAN JOAQUIN SHERIFF'S POSSE COMITATUS; Francis Gillings; Norman Brown; George Hill; Steven Gillings; Ernest Perry; Michael Eugene Brown; Lewis Daniel Elam; Frank Ray; Rufus Shackleford; Western Tomato Growers and Shippers, Inc.; Stockton Tomato Company, In
Case Date:April 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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641 F.2d 711 (9th Cir. 1981)

Michael N. CANLIS, Sheriff-Coroner, County of San Joaquin;

et al., Plaintiffs- Appellants,



Norman Brown; George Hill; Steven Gillings; Ernest Perry;

Michael Eugene Brown; Lewis Daniel Elam; Frank Ray; Rufus

Shackleford; Western Tomato Growers and Shippers, Inc.;

Stockton Tomato Company, Inc.; and Southern Pacific Company,


No. 78-3134.

United States Court of Appeals, Ninth Circuit

April 6, 1981

Argued and Submitted Sept. 11, 1980.

Rehearing and Rehearing En Banc Denied May 28, 1981.

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Gary M. Messing, Carroll, Burdick & McDonough, San Francisco, Cal., for plaintiffs-appellants.

George J. Tichy, II, San Francisco, Cal., for defendants-appellees; J. Michael Phelps, Littler, Mendelson, Fastiff & Tichy, P.C., San Francisco, Cal., Suzanne Trimble, Memering & DeMers, Sacramento, Cal., on brief.

Appeal from a Judgment of the United States District Court for the Eastern District of California.

Before WRIGHT and TANG, Circuit Judges, and GRANT [*], Senior District Judge.

GRANT, Senior District Judge:

This is an appeal from an Order of the United States District Court for the Eastern District of California dismissing a civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985. 1 The question before this court is whether the district court erred in dismissing the complaint for failure to state a claim upon which relief could be granted. 2

Appellants' complaint, filed August 30, 1976, is founded upon various incidents which occurred during the late summer and early fall of 1975 when the United Farm Workers of America (UFW) were seeking to organize farm workers in the County of San Joaquin, California. The named individual appellant-plaintiffs are members of varying rank of the San Joaquin County Sheriff's Office. Appellant San Joaquin

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Sheriff's Benefit Association, an employee organization which is the recognized employee organization for employees of the San Joaquin County Sheriff's Office, brings this action on behalf of itself and its members. The named individual appellee-defendants are members of appellee-defendant "San Joaquin Sheriff's Posse Comitatus," an unincorporated association of private citizens, which is a local chapter of a nationwide organization titled "Posse Comitatus" which operates in many California counties. The named corporate appellee-defendants are all entities incorporated under the laws of the State of California with their principal place of business in San Joaquin County.


The material allegations of the complaint, taken as true and liberally construed in the light most favorable to the appellants, Ernest W. Hahm, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir. 1980); Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 430 (9th Cir. 1978); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977), present the following facts:

A. Events Preceding the Confrontation of September 2, 1975

On August 30, 1975, several members of the United Farm Workers of America sought entrance to a field owned and operated by the Lathrop Farm Labor Center in the County of San Joaquin. Their purpose was to solicit authorization cards from the employees to determine their possible allegiance to the UFW in the event of a union election. The UFW representatives were advised by Ernest Perry and Leonard Loduco, co-owners of the Center, that the field was their property and that the UFW representatives were trespassing and would be forcibly removed if necessary. During this confrontation, Loduco reported the incident by telephone to the San Joaquin County Sheriff's Office. Several deputy sheriffs responded to the call. A "shouting match" then ensued between one of the UFW representatives and Perry, with one of the representatives being pushed to the ground. Shortly thereafter, additional sheriff deputies arrived at the scene and witnessed Perry and a UFW representative attempting to place each other under citizen's arrest. The deputies separated the two men and after speaking with both parties, asked the UFW members to leave the property. 3

One day later on August 31, 1975, Perry contacted deputy LaFave and told him that he and other growers and farm owners in the San Joaquin County area were "expecting trouble" from UFW representatives. He also told LaFave that armed and prepared members of Posse Comitatus would be present in the fields to insure that any UFW representatives would be prevented from entering and, further, that the Posse Comitatus members would arrest any sheriff deputies who failed to carry out their constitutional duties. Perry later went to the residence of District Attorney Joseph Baker and stated that he had just joined the Posse Comitatus, and that its members would arrest sheriff deputies who failed to perform their duties in a manner acceptable to the Posse Comitatus.

On the morning of September 1, 1975, deputy McGaughey was contacted by Herman Garza, a UFW organizer. Garza stated that a member of the Posse Comitatus threatened to shoot Garza or any other UFW representative who set foot on the property he was protecting. 4 James Drake, another UFW representative, informed

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McGaughey that Francis Gillings had made a similar threat to him. Gillings later confirmed to McGaughey that he had in fact made the threat.

During the evening of September 1, 1975, a meeting was held at the Lathrop Farm Labor Center. Those in attendance included property owners, tomato growers and members of the Posse Comitatus. 5 Discussions focused upon the expected visit from UFW representatives the following morning on their property in another attempt to organize the farm workers. In response, the Posse Comitatus was authorized to act on behalf of the owners and growers in the defense of their respective properties. The owners and growers additionally advised the Posse Comitatus that no one, including police officers, were to be permitted to enter their respective properties, and that any who attempted to do so were to be prevented by any means necessary. All those present expressly agreed that the Posse Comitatus would protect the properties beginning the next day.

B. The Confrontation of September 2, 1975

At daybreak the next morning, ten to fifteen sheriff deputies were patrolling various properties in the San Joaquin area. The Sheriff's Office had been forewarned about potential labor disputes and possible violence that might erupt between UFW representatives and various property owners, growers, and members of the Posse Comitatus. At the same time, approximately fifteen members of the Posse Comitatus were patrolling the borders of one of the fields. All appeared to be armed with guns and clubs. All were wearing badges on their shirts bearing the legend "Sheriff's Posse Comitatus" which were substantially identical in design and appearance to the official badges issued to deputies of the San Joaquin County Sheriff's Office. Upon arrival of the UFW representatives, a confrontation soon ensued. 6 The UFW representatives stated to both the members of the Posse Comitatus and the sheriff deputies that they had a legal right of access to the field pursuant to an order by the California Agricultural Relations Board, dated September 29, 1975, allowing access for union organizing.

At approximately 7:15 a. m., Deputy District Attorney Joseph DaSilva arrived at the field at the request of the Sheriff's Office to render a legal opinion concerning the access order. DaSilva concluded that the UFW representatives had a legal right to enter but recommended that if they were refused entrance by the Posse Comitatus, the deputies should not escort them into the field by force. DaSilva advised the UFW representatives and the deputies that arrests should only be made in the event of any criminal violations. DaSilva further advised that if the Posse Comitatus continued in the denial of access to the UFW representatives, the remedy would be to have the representatives seek judicial enforcement of the order of the Agricultural Relations Board. The representatives of the UFW were then asked to leave the area

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of the road leading up to the field. They complied with the request. During this tense confrontation, no violence erupted despite frequent "shouting matches" between the UFW representatives who were positioned outside the gates to the field and the Posse Comitatus members who were positioned inside the gates to the field and defending it.

Shortly after the departure of the UFW members, Francis Gillings arrived, entered the field, and immediately took charge of the Posse Comitatus members. Information from a record check conducted by the Sheriff's Office upon Gillings 7 revealed that the City of Tracy, located within San Joaquin County, was holding a warrant for Gillings' arrest for his failure to appear at a hearing relating to a speeding ticket.

At approximately 9:00 a. m., Inspector Daniel Delfatti of the Sheriff's Office decided to arrest Gillings pursuant to that outstanding warrant. He was accompanied by three fellow deputies, with four others serving as backup, to observe the approximately forty members of the Posse Comitatus who at this time were spread throughout the field and to insure that none of them would attempt to interfere with the arrest. Delfatti led the arrest team to the edge of the field and called out to Gillings that he had a warrant for his arrest. As the arrest team drew closer, they were confronted by Posse member George Hill who threatened to shoot the officers if they proceeded any further. Hill began to push and shove Delfatti. Despite being warned that he was unlawfully interfering with the...

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