Broussard v. Violet, 89-56207
| Decision Date | 21 June 1991 |
| Docket Number | No. 89-56207,89-56207 |
| Citation | 936 F.2d 576 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Thomas R. BROUSSARD, Mollie E., Broussard, Paige R. Parrish, Plaintiffs-Appellees, v. Arlene VIOLET, Defendant, and Leon A. Blais, et al, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before FERGUSON, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.
Blais appeals the district court's denial of his motion for summary judgment, asserting that he is immune from Broussard's section 1983 action by operation of both qualified and absolute immunity. Blais also asserts that Broussard's section 1983 claim against him is barred by a previously executed claim-waiver agreement in which Broussard gave up his potential claims. We affirm in part, and dismiss in part for lack of jurisdiction.
Broussard alleges that Blais acted improperly both in requesting and in executing a search warrant.
Blais' claim that he is entitled to absolute immunity for activities relating to his request for a search warrant fails. Malley v. Briggs, 475 U.S. 335, 341-44 & n. 6 (1986) (); Bergquist v. County of Cochise, 806 F.2d 1364, 1367-68 (9th Cir.1986) ().
Blais also claims that he is entitled to qualified immunity as a matter of law on Broussard's claim that he unreasonably sought a warrant. The defendant-officer's immunity is lost if a reasonably well-trained officer in his position would have known that he should not apply for the warrant because he lacked probable cause. Malley, 475 U.S. at 344-45; Bergquist, 806 F.2d at 1367-68. Malley establishes an objective standard, not a subjective "good faith" standard. Id.
Blais argues that he satisfies Malley's reasonableness standard as a matter of law because he was entitled to rely on the competence of the judge who issued the search warrant. However, this argument has been rejected by both the Supreme Court and this court. Malley, 475 U.S. at 345, 346 n. 9; Bergquist, 806 F.2d at 1367-68.
Blais alternatively argues that he is entitled to summary judgment under Malley's "reasonable officer" standard. Malley, 475 U.S. at 344-45; see also Anderson v. Creighton, 483 U.S. 635, 641 (1987). There are two types of factual questions that have been given to juries in qualified immunity cases. First, when there is conflicting testimony as to the events that occurred, and the conflicts go to the heart of the inquiry into the actions of the official, the jury resolves the conflicting evidence. See Hansen v. Black, 885 F.2d 642 (9th Cir.1989).
It is clear that such a "what happened" question is raised by Broussard's claim that Blais acted unreasonably in requesting the warrant. First, there is testimony that would support an inference that insufficient information was disclosed to the judge who issued the search warrant. Further, there is testimony from a knowledgeable Rhode Island official that the key statements in the warrant, that Broussard had violated Rhode Island tax laws, were misleading and without foundation. And these conflicts go to the core of the question whether Blais is liable under Sec. 1983.
The second type of case that goes to the jury requires the jury to evaluate whether a reasonable official in the circumstances of the case would have thought that he acted in conformity with applicable law. See Malley, 475 U.S. at 345-46; Merriman v. Walton, 856 F.2d 1333 (9th Cir.1988), cert. denied, 491 U.S. 905 (1989). Broussard created a jury question as to whether a reasonable law-enforcement official in Blais' position would have thought that he possessed probable cause to seek a warrant for a wide-ranging search of Broussard's home and office. First, Blais failed to disclose to the issuing court a fact that related to his credibility as a declarant--that a Rhode Island grand jury was considering whether to indict him. Further, two of the factors that led the Merriman court to conclude that the officer in Merriman acted unreasonably have considerable force in the instant case. The Merriman court thought it relevant whether the plaintiff was a "responsible member of the community," and Blais knew that Broussard was a lawyer. Moreover, just as the officer in Merriman knew that no crime had been committed, Blais knew Rhode Island had not yet decided whether any crime had been committed, for the very purpose of Blais' preliminary investigation was to determine whether any crime had been committed.
Thus, the district court appropriately denied summary judgment on Broussard's claim that Blais acted unreasonably in seeking the search warrant.
The Ninth Circuit has held that if a warrant is executed in an unreasonable manner, then the executing officers may be liable. Bergquist, 806 F.2d at 1369 (applying the Malley standard). Thus, the question is whether a reasonable official in Blais' position would have known that he acted unlawfully in executing the search warrant as he did. See Malley, 475 U.S. at 345-46.
The execution of the warrant cannot support section 1983 liability if Blais is found to have done no more than to have accidentally seized non-warrant documents that were intermingled with warrant documents. For the law governing how to deal with intermingled documents does not seem to have been "clearly established" at the time of the search, February 18, 1986. See United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir.1985) (); United States v. Tamura, 694 F.2d 591, 595 (9th Cir.1982) (...
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