Bergquist v. County of Cochise
| Citation | 806 F.2d 1364 |
| Decision Date | 23 December 1986 |
| Docket Number | 85-1531 and 85-1532,Nos. 85-1505,s. 85-1505 |
| Parties | Richard BERGQUIST, husband/Guardian Ad Litem; Susan Nagoda Bergquist, wife/Guardian Ad Litem; A. Taara Bergquist; N. Torbin Bergquist, Plaintiffs/Appellants, v. COUNTY OF COCHISE, David Joshua Bossak, Jesse Vaughn Brazel, Jr., Mary Margaret Brazel, et al., Defendants/Appellees. Robert J. Eyman and Karen Eyman, David Kunz, Travis Brotherton Kuykendall & Daniel O'Brien, Defendants-Appellants. Richard BERGQUIST, husband/Guardian Ad Litem; Susan Nagoda Bergquist, wife/Guardian Ad Litem; A. Taara Bergquist; N. Torbin Bergquist, Plaintiffs-Appellees, v. COCHISE COUNTY, David Joshua Bossak, Jesse Vaughn Brazel, Jr., Mary Margaret Brazel, Larry Albert Dever, Nancy Jean Dever, Bert A. Goodman, Frances D. Goodman, Paul Robert Gruen, David Lloyd Jark, Victoria S. Jark, David Lynn Jones, Jimmy Vance Judd, Edna R. Judd, Dale Lehman, Mary Louise Lehman, Ruben Leon, Sylvia Sue Leon, Kenneth Allen Shutley, Susan G. Shutley, Raymond Russel Thatcher, Albert James Tomlinson, Cheryl Diane Tomlinson, William Arthur Townsend, et al., Defendants-Appellants. Richard BERGQUIST, husband/Guardian Ad Litem; Susan Nagoda Bergquist, wife/Guardian Ad Litem; A. Taara Bergquist; N. Torbin Bergquist, Plaintiffs-Appellees, v. COCHISE COUNTY, et al., Defendants, and Robert J. Eyman and Karen Eyman, David Kunz, Travis Brotherton Kuykendall and Daniel O'Brien, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Tony K. Behrens, Centry, Desens, Behrens & Roll, Bisbee, Ariz., for plaintiffs/appellants.
William Smitherman, Smitherman, Hubert & Sacks, James D. Whitney, Asst. U.S. Atty., Tucson, Ariz., for defendants/appellees.
Appeal from the United States District Court for the District of Arizona.
Before BROWNING, Chief Judge, TANG and BEEZER, Circuit Judges.
The Bergquists appeal the district court's dismissal of their suit against Cochise County officials under 42 U.S.C. Sec. 1983 (1982), and their suit against federal Drug Enforcement Administration (DEA) officials directly under the constitution, as authorized by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Their suit stems from a marijuana raid of their rural property in May of 1983. The Bergquists assert three grounds for liability for fourth and fourteenth amendment violations, and they request an injunction to require adequate training of magistrates. The County and federal defendants cross appeal for costs and attorney fees. We reverse in part.
On May 3, 1983 DEA agents contacted the Cochise County Sheriff's Office with information about a sighting of marijuana plants in a greenhouse by a confidential informant who also indicated he had encountered vicious Doberman pinscher dogs on the property. Based on this information a joint raid was planned by the DEA and the Cochise County Special Response Team (SRT). Efforts to corroborate the marijuana sighting through aerial and ground surveillance were unsuccessful. Deputy Sheriff On May 4, 1983 thirteen officers--members of the SRT, dressed in military-style uniforms and armed with military-style weapons--arrived at the Bergquist residence to execute a search actually authorized for the Burwell Hatch Farm. The two minor children of the Bergquist family were at home alone. The officers failed to discover any Doberman pinschers, but threatened to shoot the children's pet dogs. They searched the greenhouse but found no marijuana plants. They then searched other buildings on the property and in the process damaged or destroyed photographic equipment and ceramic art works in the Bergquists' studio.
Thatcher obtained a search warrant for the Burwell Hatch Farm based on the information supplied by the confidential informant.
The Bergquists complained in the district court that the search warrant was issued without probable cause and was mistakenly executed at their residence and carried out in an unreasonable and excessive manner. They also alleged that the DEA and Cochise County had failed to properly train and instruct their officers in the necessity to corroborate informant data, and that Cochise County had failed to adequately train its magistrates. The district court granted the defendants' motion to dismiss. It held: (1) the plaintiffs lacked standing to challenge the validity of the search warrant, since it was directed at a third party; (2) the officers were shielded from liability by the magistrate's decision to issue a warrant; (3) the plaintiffs' claims of unreasonable execution were not of constitutional magnitude because the officers reasonably relied on the warrant in conducting the search, and their mistaken execution upon the wrong residence did not rise to the level of a constitutional violation; (4) there is no liability for failure to supervise or train officers unless it rises to a level of gross negligence or leads to a violation of plaintiffs' constitutional rights; and (5) there is no duty of a county to train judicial officers.
The federal and county defendants insist that we should review a Sec. 1983 dismissal under a stricter standard than other dismissals and require alleged constitutional violations to be pleaded with greater particularity than in other civil cases. See, e.g., Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir.1985). That, however, is not the law in this circuit. We review a dismissal of a Sec. 1983 action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) de novo, under the controlling standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957): dismissal is appropriate only when the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986). Our review of the complaint and controlling legal principles leads to the conclusion that dismissal of the Bergquists' claim was unwarranted.
The district court held the Bergquists lacked standing to challenge the warrant because it was directed at a third party. Neither the Government nor Cochise County presses this point on appeal, but we note that the Bergquists have standing to challenge the execution of a warrant upon their property because they meet the test of having a "legitimate expectation of privacy in the premises" of their rural residence. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978).
The district court dismissed the claim of fourth amendment violation, holding the officers were shielded from liability by the magistrate's issuance of a warrant. The recent decision of Malley v. Briggs, --- U.S. ----, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986), requires that we reverse and remand on this question. The Supreme Court there decided that the "objective The appellees argue that this court should not apply the Briggs standard retroactively because under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) a government official can be liable only for violation of "clearly established statutory or constitutional rights." This argument is misplaced. Neither the case at bar nor Briggs involves a substantive constitutional right whose newly emerging status raises the question of when officials may properly be charged with knowledge of its existence. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (); Capoeman v. Reed, 754 F.2d 1512 (9th Cir.1985) (); Ward v. San Diego County, 791 F.2d 1329 (9th Cir.1986) ().
reasonableness" standard applicable in a suppression hearing under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) also defines the qualified immunity available in a Sec. 1983 damages action. Briggs, 106 S.Ct. at 1098. The Court expressly rejected the view that a police officer's reliance on a warrant is per se objectively reasonable merely because a judicial officer has found probable cause exists. Id. The question for the district court to decide on remand is "whether a reasonably well-trained officer in [appellee's] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Id
This case and Briggs involve the fundamental, and long-established, rights protected by the fourth amendment. Briggs, 106 S.Ct. at 1098, addressed an allegedly unconstitutional arrest and the instant case implicates the fourth amendment's core "right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961). See also United States v. United States District Court, 407 U.S. at 313, 92 S.Ct. at 2134 ().
Briggs in no way alters the substantive law governing searches, it merely establishes that the qualified immunity from damage suits is no broader than the good faith exception to the exclusionary rule. The search at issue here took place in May of 1984, some two months before the Supreme Court first created a good faith exception to the exclusionary rule in Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and thus the involved officers had no...
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