781 F.2d 1334 (9th Cir. 1986), 83-6118, Gibson v. United States

Docket Nº:83-6118.
Citation:781 F.2d 1334
Party Name:Emily Fuller GIBSON, Michelle Gibson and Melanie Gibson, Plaintiffs-Appellants, v. UNITED STATES of America, William French Smith, Attorney General of the United States; William Webster, Director, Federal Bureau of Investigation (FBI); Will Heaton, Special Agent, FBI; Brandon Cleary, Special Agent, FBI; Darthard Perry aka Ed Riggs; the City of Los
Case Date:January 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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781 F.2d 1334 (9th Cir. 1986)

Emily Fuller GIBSON, Michelle Gibson and Melanie Gibson,



UNITED STATES of America, William French Smith, Attorney

General of the United States; William Webster, Director,

Federal Bureau of Investigation (FBI); Will Heaton, Special

Agent, FBI; Brandon Cleary, Special Agent, FBI; Darthard

Perry aka Ed Riggs; the City of Los Angeles; Daryl Gates,

Chief, Los Angeles Police Department (LAPD), Defendants-Appellees.

No. 83-6118.

United States Court of Appeals, Ninth Circuit

January 30, 1986

Submission Vacated May 9, 1985. Argued and Submitted Sept. 4, 1984.

Submission Vacated May 9, 1985.

Resubmitted May 30, 1985.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Lawrence Teeter, Los Angeles, Cal., for defendants-appellees.

Stephen D. Petersen, Asst. U.S. Atty., Katherine Hamilton, Los Angeles, Cal., for plaintiffs-appellants.

Appeal from the United States District Court for the Central District of California; A. Andrew Hauk, District Judge, Presiding.

Before NORRIS and BEEZER, Circuit Judges; and MUECKE, [*] District Judge.

NORRIS, Circuit Judge:

Plaintiffs Emily Gibson and her daughters, Michelle and Melanie, commenced this litigation on July 1, 1980, seeking compensatory and punitive damages for an alleged long-lasting conspiracy to violate their civil rights. The initial complaint joined as defendants the United States of America, the City of Los Angeles, two named FBI agents, and several unknown agents of the Los Angeles Police Department (LAPD) and the FBI. Detailed in this complaint is a farrago of allegations, the common theme of which is that from the late 1960's through the eve of this lawsuit federal and municipal agents sought to penalize and discourage Emily Gibson's controversial political activities through an unremitting campaign of terror and harassment. The Gibsons claim that this campaign violated their constitutional rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments and, in addition, seek relief under a variety of overlapping statutory theories.

After twice dismissing plaintiffs' complaint with leave to amend, the District Court finally dismissed their Second Amended Complaint with prejudice for failing "to specifically allege facts, not barred by the statute of limitations, sufficient to state a claim upon which relief can be granted." Plaintiffs brought a timely appeal from this final order of dismissal. We exercise jurisdiction over this appeal under 28 U.S.C. Sec. 1291. Conerly v. Westinghouse Electric Corp., 623 F.2d 117, 119 (9th Cir.1980). Moreover, we review the District Court's dismissal de novo, mindful that the "controlling standard, first enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), is that an action may be dismissed for failure to state a claim only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977), quoting Conley, supra 355 U.S. at 45-46, 78 S.Ct. at 101-02.


Plaintiffs seek to recover damages from the City of Los Angeles as well as several unnamed city agents under section 1983. Preliminarily, we uphold the dismissal of the City on the ground that Gibson failed to attribute the alleged tortious acts of city agents to an established city policy or procedure. It is settled law that "a municipality cannot be held liable under Sec. 1983 on a respondeat superior theory." Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Instead, plaintiff must allege that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized city policy. Monell at 690-91, 98 S.Ct. at 2035-36; Harris v. City of Roseburg, 664 F.2d 1121, 1130 (9th Cir.1981)

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(" 'Official policy' within the meaning of Monell [encompasses situations] where a municipality 'impliedly or tacitly authorized, approved, or encouraged' illegal conduct by its police officers.") (quoting Turpin v. Mailet, 619 F.2d 196, 201 (2nd Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980)). Because plaintiffs do not allege facts sufficient to satisfy the Monell predicate for municipal liability, we affirm the dismissal of the City of Los Angeles and its Chief of Police.


The section 1983 claim against the individual city defendants is less easily resolved. To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes. See Smith v. Cremins, 308 F.2d 187, 190 (9th Cir.1962). Giving the Second Amended Complaint the sympathetic construction required at the motion to dismiss stage, we believe that the Gibsons have alleged facts sufficient to state a claim that city agents, acting under color of state law, caused the deprivation of their constitutional rights. If we assume the truth of plaintiffs' adequately pleaded allegations, unknown members of the LAPD engaged in frequent low-altitude helicopter flights over their residence in order to inhibit Gibson's confrontational yet non-violent political activities. State action designed to retaliate against and chill political expression strikes at the heart of the First Amendment. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also McKinley v. City of Eloy, 705 F.2d 1110, 1113 (9th Cir.1983), Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2nd Cir.1978). Accordingly, the victim of such action is entitled to sue the responsible state agents under section 1983. See Anderson v. Central Point School District, 746 F.2d 505 (9th Cir.1984) (coach suspended for corresponding directly with School Board on matters of public concern); McKinley, 705 F.2d at 1113 (probationary employee laid off for airing public criticism of city policies); see also Burnett v. Gratton, --- U.S. ----, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (assuming availability of section 1983 remedy for infringement of constitutionally protected speech); Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (same). Although plaintiffs may not recover merely on the basis of a speculative "chill" due to generalized and legitimate law enforcement initiatives, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154, reh'g denied 409 U.S. 901, 93 S.Ct. 94, 34 L.Ed.2d 165 (1972), they have alleged discrete acts of police surveillance and intimidation directed solely at silencing them. Hence, we conclude that they have stated a judicially cognizable claim of "specific ... objective harm" arising from the violation of their First Amendment rights. Id. at 14, 92 S.Ct. at 2326.

To identify those acts which remained actionable at the time plaintiffs tolled the statute of limitations on July 1, 1980, we must determine (1) the statute of limitations applicable to section 1983 claims arising in California at the time of this action and (2) the principles governing the accrual of actions alleging federal civil rights conspiracies. We conclude that plaintiffs have stated a claim that is not time barred based on the retaliatory helicopter overflights allegedly occurring after July 1, 1977.

  1. The applicable statute of limitations

    The first question--the applicable statute of limitations--depends on the retroactivity of Wilson v. Garcia, --- U.S. ----, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Wilson, the Supreme Court held that section 1983 claims should be invariably characterized as personal injury actions for the purpose of identifying which state period of limitation should be borrowed under section 1988. The parties agree that after Wilson the statute of limitations for section 1983 actions brought in California will be one year. Until Wilson, this Circuit

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    applied a longer three-year statute of limitations. Smith v. Cremins, 308 F.2d 187 (9th Cir.1962). Therefore, if Wilson retroactively governs plaintiffs' section 1983 claim, a significant portion of their complaint concededly timely when filed will be time-barred.

    In Rivera v. Green, 775 F.2d 1381 (9th Cir.1985), this court granted Wilson retroactive application when it had the effect of lengthening, rather than abbreviating, the limitations period. The case before us is not controlled by Rivera, because Rivera expressly limited its holding to cases in which retroactive application "would advance the litigant's ability to pursue section 1983 remedies at the expense of a [disfavored] statute of limitations defense." Rivera at 1384. In this case, retroactive application would thwart, rather than enhance, the remedial purposes underlying section 1983. Thus, we undertake an independent retroactivity analysis on the facts of this case, and we conclude that, when retroactive application would shorten the statute of limitations, Wilson merits only prospective effect. 1 We thereby join the Tenth Circuit in rejecting retroactive application that would bar "plaintiffs' right to their day in court when their action was timely under the law in effect at the time their suit was commenced." Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir.1984), (quoted with approval in Wilson, 105 S.Ct. at 1941 n. 10).

    In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court laid down three factors which courts must weigh in determining whether to apply a...

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