665 F.3d 1076 (9th Cir. 2011), 09-55898, Bravo v. City of Santa Maria

Docket Nº:09-55898.
Citation:665 F.3d 1076
Opinion Judge:HAWKINS, Senior Circuit Judge:
Party Name:Javier BRAVO, Sr.; Hope Bravo; E.B., a minor by her Guardian ad Litem Sara Gonzales, Plaintiffs-Appellants, v. CITY OF SANTA MARIA; Danny R. Macagni, Santa Maria Police Chief; Louis Tanore, Santa Maria Police Detective; Larry Ralston, Santa Maria Police Lieutenant; County of Santa Barbara; Santa Barbara County Sheriff's Department; Jim Anderson, Sa
Attorney:Donald W. Cook (argued), and Robert Mann (briefed), Los Angeles, CA, for the plaintiffs-appellants. Richard R. Terzian (argued and briefed), Burke, Williams and Sorensen, Los Angeles, CA, for defendants-appellees City of Santa Maria, Danny R. Macagni, Santa Maria Police Chief, Louis Tanore, Santa...
Judge Panel:Before: STEPHEN REINHARDT and MICHAEL DALY HAWKINS, Circuit Judges, and BRIAN M. COGAN, District Judge.[*]
Case Date:December 09, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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665 F.3d 1076 (9th Cir. 2011)

Javier BRAVO, Sr.; Hope Bravo; E.B., a minor by her Guardian ad Litem Sara Gonzales, Plaintiffs-Appellants,

v.

CITY OF SANTA MARIA; Danny R. Macagni, Santa Maria Police Chief; Louis Tanore, Santa Maria Police Detective; Larry Ralston, Santa Maria Police Lieutenant; County of Santa Barbara; Santa Barbara County Sheriff's Department; Jim Anderson, Santa Barbara County Sheriff; Don Patterson, Santa Barbara County Commander, Defendants-Appellees.

No. 09-55898.

United States Court of Appeals, Ninth Circuit.

December 9, 2011

Argued and Submitted May 5, 2011.

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Donald W. Cook (argued), and Robert Mann (briefed), Los Angeles, CA, for the plaintiffs-appellants.

Richard R. Terzian (argued and briefed), Burke, Williams and Sorensen, Los Angeles, CA, for defendants-appellees City of Santa Maria, Danny R. Macagni, Santa Maria Police Chief, Louis Tanore, Santa Maria Police Detective, and Larry Ralston, Santa Maria Police Lieutenant.

Jake Stoddard, Chief Deputy, and Jordan Sheinbaum, Deputy County Counsel, Santa Barbara, CA, (both briefed) for defendants-respondents the County of Santa Barbara, the Santa Barbara Sheriff's Department, Sheriff Jim Anderson and Commander Don Patterson.

Appeal from the United States District Court for the Central District of California, Florence-Marie Cooper, District Judge, Presiding. D.C. No. 2:06-cv-06851-FMC-SH.

Before: STEPHEN REINHARDT and MICHAEL DALY HAWKINS, Circuit Judges, and BRIAN M. COGAN, District Judge.[*]

OPINION

HAWKINS, Senior Circuit Judge:

Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively

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" the Bravos" ), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (" Javier Jr." ). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (" SMPD" ) Detective Louis Tanore's (" Tanore" ) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.

BACKGROUND FACTS AND PRIOR PROCEEDINGS

I. Background1

A. Obtaining the Warrant

The series of events that culminated in the search of the Bravo home began with the SMPD's investigation of an April 21, 2006 drive-by shooting in the unincorporated Tanglewood area of Santa Maria, California. Shots were fired from a vehicle into an occupied home, striking and injuring a young boy. SMPD Gang Suppression Team (" GST" ) Detectives Tanore and Eligil Lara (" Lara" ) were among those responsible for crime scene investigation and witness interviews. Together, they interviewed the victim and other occupants of the targeted home, learning from the witnesses that they were formerly associated with the Tangas gang and believed the shooting was, in part, a reaction to their disassociation from the gang.

Two of the witnesses recognized the car from which the shots were fired as belonging to a Tangas member and recognized a man's voice calling out from the car as that of another member. The witnesses suggested that fellow Tangas members not directly involved in the shooting would likely be storing the weapons used, as was the Tangas' customary practice. The witnesses then provided Tanore and Lara with a list of between twelve and fifteen names, including Javier Jr.'s, of alleged Tangas members believed to be closely associated with the suspected shooters.

Based on this and other information, Tanore prepared an affidavit in support of a " multiple location gang association warrant," which SMPD obtained four days later from a Santa Barbara County Superior Court Judge. The warrant was sealed for the informants' protection and authorized search of seven individuals suspected of harboring weapons and evidence relating to the drive-by shooting, as well as search of those persons' residences and vehicles, and search of any persons or vehicles present at the time of the warrant's execution. The warrant authorized the seizure of guns of the caliber used at the shooting, all other firearms, ammunition, and casings, and any indicia of gang membership. In addition, the issuing judge granted Tanore's request that the search warrant be endorsed for nighttime service " due to the severity of this investigation and the fact that the subjects involved in this investigation are all Tangas (Tanglewood) gang members," and based on Tanore's belief that " the ability to obtain

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the element of surprise with gang members will lessen the chance for injury to the Officers, community, and the subjects we are searching."

Tanore's affidavit listed Javier Jr.'s address as the Bravo residence and contained a brief summary of Javier Jr.'s criminal history report, commonly known as a " rap sheet." The affidavit specifically noted Javier Jr.'s recent conviction for violation of California Penal Code § 496(A), receiving stolen property, but failed to mention that Javier Jr. had been sentenced and was over six months into serving a two-year sentence in state prison for that crime. Deposed in this litigation, Tanore admits he obtained Javier Jr.'s criminal history from his rap sheet and may have seen the two-year sentence entry, which appeared just two lines below the conviction entry, but does not recall with certainty whether he observed it or not. He further testified that, in any event, even if he had seen the sentence on Javier Jr.'s rap sheet, ordinarily it " wouldn't be something [he] would check into."

Detective Lara testified that he called the Santa Barbara County Sheriff's Office (" SBSO" ) substation, consistent with standard SMPD practice, to ascertain the custody status of the individuals named in the warrant application and was told by an unidentified substation employee that Javier Jr. was not in custody. Upon learning that James Franklin, another suspect originally named in the warrant application, was in custody, the officers removed his name from the application. No substation employee, however, recalls receiving such a call from Lara. Furthermore, several SBSO employees explained that their database contains only information on persons in county jail, not those in state prison, and that the only way to determine a person's state custody status is to call the state prison system's Inmate Locator number. No SMPD officer claims to have taken any other action to determine whether Javier Jr. or any of the other named individuals was in state custody at the time.

B. Executing the Warrant

The search warrant covered seven homes, several of which were located in Tanglewood, an unincorporated area just outside the Santa Maria city limits and patrolled by the SBSO. In order to execute the search warrant on all seven locations simultaneously, the SMPD asked the SBSO to assist with SWAT execution on two of the Tanglewood homes, including the Bravo residence. SBSO agreed to use its Special Enforcement Team, but ultimately determined it could not adequately execute the warrant simultaneously on both Tanglewood residences. SBSO therefore asked the Santa Barbara Police Department (" SBPD" ) SWAT team to serve the warrant on the Bravo residence and turned over all materials it had gathered in the course of scouting the mission, which included Javier Jr.'s criminal history, a record of his former encounters with SBSO, and photographs of the Bravo residence.

The SBPD SWAT team participated in final briefings the evening of April 25, 2006 and early in the morning of April 26, 2006 prior to serving the warrant on the Bravo residence. Several SBPD officers testified that they were given a detailed briefing during which they learned that Javier Jr. kept a machete, had violently resisted arrest on a previous occasion, and that thirty to forty individuals might be present in the home. No mention was made of Javier Jr.'s custody status.

After the briefing, at approximately 5:30 am, the SBPD SWAT team served the warrant. Allowing but a few seconds between announcing their presence and

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breaching the door, the SWAT team entered the Bravos' home by shooting off the front door locks and deploying two " flashbang" grenades, or light-sound diversionary devices, outside the back door. Mr. Bravo was sleeping in the living room and awoke to find three masked officers dressed in black, pointing their guns at him. Mrs. Bravo and then-eight-year-old E.B. awoke to the sounds of people running and screaming and ran into the bathroom for safety. An officer kicked the bathroom door open and pointed a gun at them, shouting at them to lie flat with their stomachs on the ground. After a few minutes, an officer told Mrs. Bravo and E.B. they could get up and sit on the bed, at which point Mrs. Bravo told them her son was in jail and that they would find a recent letter from him on the dining room table. The officers then instructed Mrs. Bravo and E.B. to join Mr. Bravo in the living room.

After the SBPD SWAT team looked at Javier Jr.'s letter from prison and realized he was not present, they stopped asking for...

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