903 F.2d 717 (9th Cir. 1990), 88-5889, Bryant v. United States Treasury Dept., Secret Service

Docket Nº:88-5889.
Citation:903 F.2d 717
Party Name:James V. BRYANT, Jr., Plaintiff-Appellee, v. UNITED STATES TREASURY DEPARTMENT, SECRET SERVICE, Defendant, and Jeff Jordan; Brian V. Hunter, Defendants-Appellants.
Case Date:May 18, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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903 F.2d 717 (9th Cir. 1990)

James V. BRYANT, Jr., Plaintiff-Appellee,




Jeff Jordan; Brian V. Hunter, Defendants-Appellants.

No. 88-5889.

United States Court of Appeals, Ninth Circuit

May 18, 1990

        Argued and Submitted March 10, 1989.

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        Robert A. Pallemon, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellants.

        Richard Eiden, Los Angeles, Cal., for plaintiff-appellee.

        Appeal from the United States District Court for the Central District of California.

        Before SCHROEDER, FLETCHER and TROTT, Circuit Judges.

        FLETCHER, Circuit Judge:

        Plaintiff-appellee James V. Bryant brought a Bivens action after his arrest by two agents of the United States Secret Service. The agents, Jeff Jordan and Brian V. Hunter ("defendants"), bring an interlocutory appeal from the district court's denial in part of their summary judgment motion seeking dismissal based on qualified immunity. 1 Bryant does not cross-appeal other decisions of the district court granting partial summary judgment to these defendants and dismissing other defendants.


        On May 3, 1985, a sergeant from the University of Southern California (USC) campus security telephoned defendant Hunter. The sergeant told Hunter that Bryant had, earlier that day, delivered two photocopies of a handwritten letter to two USC administrative offices. 2 The sergeant told Hunter that the letter contained references to a plot to murder President Reagan.

        The letter describes a large-scale conspiracy by "Communist white men within the National Council of Churches," whom Bryant refers to collectively as "Mr. Image." In a rambling discourse the letter describes in general terms and with tangential references a conspiracy directed against black males; it condemns Mr. Image, who is viewed as a destructive influence on black males. (Bryant is black.) The letter ends by warning that Mr. Image intended to assassinate Mr. Reagan during his upcoming tour of Germany. (Mr. Image hoped to install then Vice-President Bush in the White House.)

        Hunter read the letter and interviewed the two USC employees who had received the photocopies. One employee told Hunter that a black man gave her the letter on May 3, 1985, and told her to give it to the

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director of the USC Budget Office. She said the man made statements about "bloody coups" and "assassination," and also said something about "across the throat" while simultaneously moving his hand horizontally across his throat. A second employee told Hunter that she had been given a photocopy of the letter by a man who told her to forward it to the President of USC. She told Hunter that the man told her "he should have been assassinated in Bonn." She also told Hunter that the man identified himself as James V. Bryant on a piece of paper he left with her.

        Hunter determined that the matter warranted further investigation. Secret Service agent Jordan was assigned to assist Hunter. That evening, May 3, 1985, Hunter and Jordan went to a Los Angeles address provided on the letter. They knocked on the door and announced themselves as law enforcement officers. Bryant answered the door. The agents asked if they could enter the residence to speak with Bryant. Bryant gave the agents permission to enter.

        Hunter told Bryant that the agents had come because of the photocopied letters. Bryant admitted writing the letter and leaving the photocopies at USC. Hunter asked Bryant to identify "Mr. Image," but Bryant responded in a manner Hunter characterized as "rambling and confused," and, according to Hunter "refus[ed]" to identify Mr. Image. Jordan's declaration is consistent with Hunter's, but neither agent in his declaration quotes Bryant directly.

        Hunter asked Bryant for permission to search the residence. Bryant gave permission. Hunter found the original letter but no other relevant evidence. Jordan continued to talk with Bryant, who, according to Jordan, refused to answer questions concerning his attitudes and feelings about the President and refused to state whether he intended to harm the President.

        The agents decided to read Bryant his Miranda rights. Bryant waived his right to remain silent. The agents again asked him about the identity of Mr. Image. According to Jordan, "Bryant responded in a rambling and confused fashion, such that I could not discern the identity of Mr. Image or whether there was actually a person known as Mr. Image." The agents then told Bryant he was under arrest for threatening to take the life of the President, in violation of 18 U.S.C. Sec. 871.

        Bryant was arraigned on May 6, 1985, and ordered held without bail pending a detention hearing. He was held for approximately fourteen days, until the criminal complaint was dismissed on motion by the government on May 17, 1985.

        Bryant initiated his suit in May 1986, and filed an amended complaint on January 27, 1987, alleging causes of action under the Federal Tort Claims Act (FTCA) and a Bivens theory. On the government's motion, the district court dismissed the FTCA causes of action for lack of jurisdiction and dismissed in its entirety the action against the Secret Service, its director and the Doe defendants. The only remaining defendants were Hunter and Jordan. They moved for summary judgment on the ground of qualified immunity. The district court granted the motion as to some of Bryant's claims, but ruled that defendants were not entitled to qualified immunity on Bryant's Fourth Amendment claims for arrest without probable cause and without a warrant. The court denied the motion for summary judgment because it decided further fact-finding was necessary. Defendants appeal from that denial.


        We review a defendant's motion for summary judgment, seeking dismissal on the basis of qualified immunity, de novo applying the same standard as did the trial court. Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989). The question before the district court was whether a secret service officer, in light of clearly established law at the time of Bryant's arrest on May 3, 1985, reasonably could have believed that the information possessed by the arresting agents constituted probable cause to support an arrest under 18 U.S.C. Sec. 871 for threatening the life of the President. Anderson v. Creighton, 483 U.S. 635, 107

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S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court denied the defendants' motion for summary judgment holding that there were genuine issues of material fact. Because the relevant legal rule was clearly established at the time of Bryant's arrest, and the district court properly concluded more factfinding was necessary to determine whether a reasonable secret service agent could have believed that the information he possessed constituted probable cause for that arrest, we affirm the denial of summary judgment. 3

        Ordinarily a denial of summary judgment is not appealable because it is purely interlocutory. However, the Court held in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) that qualified immunity should operate to protect government officials from needlessly defending against suits as well as from liability, and that to prohibit appeals from a denial of qualified immunity until after trial would mean that the immunity effectively would be lost. Appellate review of denial of summary judgment under Mitchell is narrow and purely legal. This case requires us to decide two issues: first, were the rights clearly established, and if so, is there any genuine issue of material fact as to whether a reasonable officer could believe they were violated.

        Qualified immunity is an affirmative defense for which the government official bears the burden of proof. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982), Benigni v. City of Hemet, 853 F.2d 1519, 1525 (9th Cir.1988). As with all summary judgment motions, the evidence should be viewed in the light most favorable to Bryant as the nonmoving party; to prevail on their motion for summary judgment, the defendants must show that they were reasonable in their belief that they had probable cause. Bryant, however, bears the burden of proving that the right which the defendants allegedly violated was clearly established at the time of their conduct. Baker, 887 F.2d at 185, 186.


        Federal law enforcement officials cannot be held liable for damages under a Bivens theory unless their conduct violates a clearly established constitutional right. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As the Supreme Court instructed in Anderson v. Creighton, 107 S.Ct. at 3044, the operation of the "clearly established law" standard very much depends upon the level of abstraction at which the relevant legal rule is articulated. The right allegedly violated must not be defined at the level of generality as, for instance, the right to due process of law, for this would "convert the rule of qualified immunity ... into a rule of virtually unqualified liability." The right the official is alleged to have violated must have been clearly established "in a more particularized, and hence more relevant sense: the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 3039.

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        18 U.S.C. Sec. 871(a), the statute under which Bryant was arrested, provides:

Whoever knowingly and...

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