Bruce Dougherty, et al v. City of Covina, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, N. RANDY SMITH and RUDI M. BREWSTER) AFFIRMED. Judge: NRS Authoring, Judge: RB Concurring. FILED AND ENTERED JUDGMENT. [7858856]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE DOUGHERTY and JONATHAN
DOUGHERTY,
Plaintiffs-Appellants,
v.
CITY OF COVINA; ROBERT
BOBKIEWICZ; KIM RANEY,
Defendants-Appellees.





No. 09-56395
D.C. No.
2:08-cv-07114-PACT
OPINION

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
June 9, 2011—Pasadena, California
Filed August 16, 2011
Before: Betty B. Fletcher and N. Randy Smith,
Circuit Judges, and Rudi M. Brewster,
District Judge.*
Opinion by Judge N.R. Smith;
Concurrence by Judge Brewster

*The Honorable Rudi M. Brewster, Senior District Judge for the U.S.
District Court for Southern California, San Diego, sitting by designation.

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DOUGHERTY v. CITY OF COVINA

COUNSEL
Danielle L. Casselman and Gary S. Casselman (argued), Law
Offices of Gary S. Casselman, Los Angeles, California, for
the plaintiff-appellant.
Mary A. Pendergrass, Christopher M. Pisano (argued), and
George Roscoe Trindle, III, Best Best & Krieger, Los Angeles, California, for the defendants-appellees.

OPINION
N.R.SMITH, Circuit Judge:
Under the totality of the circumstances, a search warrant
issued to search a suspect’s home computer and electronic
equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submit-

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ted to the issuing magistrate; (2) no evidence was submitted
to the magistrate regarding computer or electronics use by the
suspect; and (3) the only evidence linking the suspect’s
attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no
further explanation. Our circuit, however, has not previously
addressed this question. Therefore, the officers involved in the
search are entitled to qualified immunity.
BACKGROUND
On October 12, 2006, Officer Robert Bobkiewicz, of the
City of Covina Police Department, and four other police officers (three from the City of Covina and one from the City of
Glendora) searched Appellant Bruce Dougherty’s1 home pursuant to a warrant issued by a magistrate on October 11, 2006.2
The search warrant authorized the officers to search for child
pornography on Dougherty’s computer and electronic media.
To obtain the search warrant, Officer Bobkiewicz submitted an affidavit reciting that he was involved in the investigation of Dougherty’s inappropriate touching of one of his sixth
grade students at Royal Oak Elementary School. The student
reported that Dougherty had lifted her up in front of the class
after she told him that she had won a cross-country meet. She
reported that Dougherty’s hands were touching her breasts
when he lifted her up to a level where he could look at her
buttocks. The student told Bobkiewicz that she had seen Dougherty look up the skirts and down the tops of other girls in
the class. In interviews, other students confirmed the lifting
1

Both Bruce Dougherty and his son, Jonathan, appealed the district
court’s ruling, but Jonathan abandoned his appeal. See infra Section V.
Consequently, for simplicity, all references in this opinion to “Dougherty”
refer only to the father, Bruce Doughtery.
2
For purposes of this Opinion, the facts in the Complaint are taken as
true. We reference the search warrant affidavit, upon which the Complaint
necessarily relies, for these facts. See Van Buskirk v. Cable News Network,
Inc., 284 F.3d 977, 980 (9th Cir. 2002).

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incident to Bobkiewicz and also reported that Dougherty
looked up the skirts and down the shirts of girls in the class.
Officer Bobkiewicz also discussed the investigation with the
Assistant Superintendent for the School District, Gloria Cortez. Cortez told Officer Bobkiewicz that she had conducted an
investigation after the incident with the student described
above. Her investigation turned up multiple reports of Dougherty touching girls’ backs and appearing to search for bra
straps with his hands (this information was corroborated by
the former vice-principal at Royal Oak). Cortez’s investigation also turned up a 2003 report of a student, who said that
Dougherty pulled her shirt down to her waist while they were
alone in the classroom. The investigation of that incident was
not pursued, after it was determined the student made inconsistent statements. The mother of the student in that incident,
however, later believed she made a mistake not believing her
daughter. When police contacted that student (then in high
school) to discuss the previous allegation, she recounted that
Dougherty touched her bare breast and told her she was “a
special girl.”
In the affidavit, Officer Bobkiewicz also recounts that he
had fourteen years of experience on the police force and had
worked as a School Resource Officer. He had over 100 hours
of training involving juvenile and sex crimes, had conducted
hundreds of investigations related to sexual assaults and juveniles, and was the designated “Sex Crimes/Juvenile Detective” for the police department. The affidavit concludes with
Officer Bobkiewicz stating that “based upon my training and
experience . . . I know subjects involved in this type of criminal behavior have in their possession child pornography . . . .”
The affidavit then requests the ability to seize Dougherty’s
computer, cameras, and electronic media and have them
searched for child pornography. A magistrate signed the warrant on October 11, 2006.
When officers arrived at Dougherty’s house, he allowed the
officers to enter and search. However, when Dougherty asked

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to see a warrant, Officer Bobkiewicz stated that he had forgotten it at the police station. During the search, the officers
entered and moved about the house with their guns drawn.
They awakened Dougherty’s adult son, Jonathan, at gun point
and gave him the option of leaving the house or sitting on the
couch in the living room during the search. Jonathan chose to
remain on the couch. The officers seized computers and “related items” from Dougherty’s home. The computers and
other items were not returned until December 27, 2007. No
charges were filed against Dougherty.
After the search of Dougherty’s house, Dougherty sued
Officer Bobkiewicz, the City of Covina, and Kim Raney, the
Chief of Police, for violating his constitutional rights.3 Dougherty claimed (1) the City and the officers violated his and
his son’s Fourth Amendment right to be free from unreasonable search and seizure, (2) the City inadequately trained and
inadequately investigated complaints about its officers (a
Monell claim4), and (3) the City, Raney, and Bobkiewicz
inadequately supervised and trained their subordinates with
respect to the incidents alleged.
The district court dismissed Dougherty’s complaint with
prejudice on August 4, 2009. The court reviewed the complaint, the search warrant, and the affidavit. The court found
the warrant was supported by probable cause, and that the
detention of Dougherty and his son was reasonable. The district court further held Bobkiewicz was entitled to qualified
immunity. Finally, the court dismissed the Monell claim on
3

The Complaint names Does 1-10, at least some of whom represent officers involved in the search. The Does, however, have not been identified
or served. Dougherty does not appeal the only issue that could implicate
police officers other than Bobkiewicz — that the search was executed
unreasonably. See infra Section V. Dougherty also does not allege or
argue that any officers other than Bobkiewicz were involved in preparing
the affidavit for the search warrant.
4
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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the ground that Monell liability cannot be found if no constitutional violations occurred.
STANDARD OF REVIEW
Dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) is reviewed de novo. Thompson v. Davis, 295 F.3d
890, 895 (9th Cir. 2002). The facts alleged in a complaint are
to be taken as true and must “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009). Mere legal conclusions “are not entitled to the
assumption of truth.” Id. The complaint must contain more
than “a formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). It must plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570.
Denial of leave to amend is reviewed for an abuse of discretion. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999).
DISCUSSION
I.

Probable Cause

[1] “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his
action cannot be a mere ratification of the bare conclusions of
others.” Illinois v. Gates, 462 U.S. 213, 239 (1983). When an
affidavit moves “beyond the ‘bare bones,’ ” however, a “totality of the circumstances test” is employed. Id. at 238-39.
Under the totality of the circumstances test, a neutral magistrate must “make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Id. at 238. The magistrate is free to

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draw “reasonable inferences . . . from the material supplied to
him by applicants for a warrant.” Id. at 240.
[2] The “standards for determining probable cause for a
search warrant” apply to a search for child pornography on a
computer. United States v. Kelley, 482 F.3d 1047, 1050 (9th
Cir. 2007). Neither “certainty nor a preponderance of the evidence is required,” but rather a “fair probability” that the evidence will be found. Id. The magistrate’s determination of
probable cause “should be paid great deference.” Id. (internal
citation and quotation marks omitted). “‘Although in a particular case it may not be easy to determine when an affidavit
demonstrates the existence of probable cause, resolution of
doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.’ ” Id. at
1050-51 (quoting Gates, 462 U.S. at 237 n.10) (alteration
omitted).
[3] Although there does not need to be direct evidence of
solicitation of child pornography to create probable cause,
Kelley, 482 F.3d at 1051-52, the reviewing court must make
certain there was a “substantial basis” for the finding, United
States v. Weber, 923 F.2d 1338, 1343 (9th Cir. 1990) (citing
Gates, 462 U.S. at 238). In Weber, we held that probable
cause did not exist to search a house for child pornography
when an affidavit recited only that a suspect had two years
previously received a catalog of child pornography and had
ordered four images of possible child pornography.5 Id. at
1345. The affidavit in Weber included a statement from a
police detective stating that he knew “the habits of ‘child
molesters,’ ‘pedophiles,’ and ‘child pornography collectors’
and that from his knowledge of these classes of persons he
could expect certain things to be at their houses, from diaries
to sexual aids to photo developing equipment.” Id. The affida5

Probable cause did exist to search for the four images that Weber actually ordered from a fake catalog sent by the government. Weber, 923 F.3d
at 1346.

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vit did not, however, have a “whit of evidence” that Weber
was a child molester, and it did not describe how many magazines or photographs it would take to qualify as a “collector.”
Id. We noted that “[i]t goes without saying that the government could not search Weber’s house for evidence to prove
Weber was a collector merely by alleging he was a collector.”
Id. We distinguished the probable cause demonstrated in the
affidavit in Weber from the affidavit in United States v. Rabe,
848 F.2d 994 (9th Cir. 1988). We noted that, in Rabe, there
was direct evidence that the defendant had child pornography
in his home. Id. We also noted that the expert in Rabe specifically concluded that the defendant was a pedophile, and the
expert and magistrate knew that the defendant admitted to
owning child pornography and desired to take nude photos of
children before the warrant was issued. Weber, 923 F.2d at
1345-46 (citing Rabe, 848 F.2d at 995-96).
If probable cause did not exist in Weber, it cannot exist
here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog
containing child pornography, an order from a fake catalog
with image names suggesting child pornography, and general
information regarding collectors, pedophiles, and molesters.
Weber, 923 F.3d at 1345. Here, by contrast, the affidavit
includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate
touching of and looking at students.
[4] The affidavit contains no facts tying the acts of Dougherty as a possible child molester to his possession of child
pornography. The affidavit provides no evidence of receipt of
child pornography. No expert “specifically concludes” Dougherty is a pedophile. In the affidavit, Officer Bobkiewicz
states only that “[b]ased upon [his] training and experience
. . . subjects in this type of criminal behavior have in their
possession child pornography . . . .” The affidavit provides no
indication that Dougherty was interested in viewing images of

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naked children or of children performing sex acts. There is no
evidence of conversations with students about sex acts, discussions with children about pictures or video, or other possible indications of interest in child pornography. Officer
Bobkiewicz either did not search Dougherty’s work computer
or email account for indications of pedophilia or child pornography, or did so and did not find any. Indeed, the affidavit
does not even verify that Dougherty owned a computer or the
other targets of the search or had internet service or another
means of receiving child pornography at his home.
Other circuits have split on the question of whether evidence of child molestation, alone, creates probable cause for
a search warrant for child pornography. The Second Circuit
has stated that a “crime allegedly involv[ing] the sexual abuse
of a minor, [does] not relate to child pornography. . . . That
the law criminalizes both child pornography and the sexual
abuse (or endangerment) of children cannot be enough.”6
United States v. Falso, 544 F.3d 110, 123 (2d Cir. 2008). The
Sixth Circuit agrees that, when probable cause is established
“for one crime (child molestation) but [the warrant is]
designed and requested [to] search for evidence of an entirely
different crime (child pornography),” it is “beyond dispute
that the warrant [i]s defective.” United States v. Hodson, 543
F.3d 286, 292 (6th Cir. 2008). In fact, in Hodson, the evidence was much more related to viewing children in sex acts
and to computers than the evidence in the affidavit here.
There, in an internet chatroom, Hodson “confided that he . . .
favored young boys, liked looking at his nine-and elevenyear-old sons naked, and had even had sex with his sevenyear-old nephew. [Hodson] also expressed his desire to per6

The Second Circuit also noted, however, that “nothing in the affidavit
draws a correlation between a person’s propensity to commit both types
of crimes.” Falso, 544 F.3d at 123. The Falso court did not consider
whether a conclusory statement tying persons involved with sexual abuse
of a minor to possession of child pornography would suffice to create
probable cause in absence of more direct evidence or a more detailed
explanation of why such a connection exists.

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form oral sex on the presumptive twelve-year-old boy . . . and
his willingness to travel . . . to do so.” Id. at 287. Nonetheless,
the Sixth Circuit firmly held that the warrant was “so lacking
in indicia of probable cause that” not even the good-faith
exception to unlawfully executed warrants could apply. Id. at
292-93.
The Eighth Circuit, however, has rejected the reasoning of
Falso and Hodson, stating “[t]here is an intuitive relationship
between acts such as child molestation or enticement and possession of child pornography.” United States v. Colbert, 605
F.3d 573, 578 (8th Cir. 2010). The affidavit in Colbert, however, did include evidence that the accused had enticed a child
to come to his apartment. Id. at 577.
[5] Ultimately, the question of probable cause is “not readily, or even usefully, reduced to a neat set of legal rules.”
Gates, 462 U.S. at 232. Thus, while the “totality of circumstances” could, in some instances, allow us to find probable
cause to search for child pornography, Officer Bobkiewicz’s
conclusory statement tying this “subject,” alleged to have
molested two children and looked inappropriately at others, to
“having in [his] possession child pornography” is insufficient
to create probable cause here.
II.

Qualified Immunity

[6] “A police officer is not entitled to qualified immunity
if: (1) the facts show that the officers conduct violated a plaintiff’s constitutional rights; and (2) those rights were clearly
established at the time of the alleged violation.” Millender v.
Cnty. of Los Angeles, 620 F.3d 1016, 1023-24 (9th Cir. 2010)
(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)), cert.
granted, 79 U.S.L.W. 3344 (U.S. June 27, 2011). The law in
this circuit had not been clearly established regarding whether
allegations of sexual misconduct or molestation at a place of
work provide probable cause to search a residence for child
pornography in the absence of an explanation tying together

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the two crimes. Neither this court nor the Supreme Court has
addressed this question. Further, as discussed supra, other
Circuit Courts of Appeal have split on similar questions.
Compare Colbert, 605 F.3d at 578, with Falso, 544 F.3d at
123, and Hodson, 543 F.3d at 292. Therefore, because the law
was not clearly established at the time of the alleged events,
the district court did not err in holding Bobkiewicz and the
other police officers are entitled to qualified immunity. See
Pearson, 555 U.S. at 243.
III.

The Monell and Supervisory Liability Claims

Qualified immunity does not shield municipalities from liability. Owen v. City of Independence, 445 U.S. 622, 657
(1980)). However, we “may affirm the district court’s dismissal on any ground supported by the record.” Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Under Twombly, the Complaint does not state a plausible cause of action
for either municipal or supervisory liability.
[7] A government entity may not be held liable under 42
U.S.C. § 1983, unless a policy, practice, or custom of the
entity can be shown to be a moving force behind a violation
of constitutional rights. Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 694 (1978). In order to establish liability for governmental entities under Monell, a plaintiff must prove “(1) that [the plaintiff] possessed a
constitutional right of which [s]he was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to
deliberate indifference to the plaintiff’s constitutional right;
and, (4) that the policy is the moving force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cnty. of
Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation
marks and citation omitted; alterations in original).
Failure to train may amount to a policy of “deliberate indifference,” if the need to train was obvious and the failure to do
so made a violation of constitutional rights likely. City of

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Canton v. Harris, 489 U.S. 378, 390 (1989). Similarly, a failure to supervise that is “sufficiently inadequate” may amount
to “deliberate indifference.” Davis v. City of Ellensburg, 869
F.2d 1230, 1235 (9th Cir. 1989). Mere negligence in training
or supervision, however, does not give rise to a Monell claim.
Id.
[8] Here, Dougherty’s Monell and supervisory liability
claims lack any factual allegations that would separate them
from the “formulaic recitation of a cause of action’s elements” deemed insufficient by Twombly. See 550 U.S. at 555.
Regarding the Monell claim, Dougherty alleged only that (1)
“Defendant CITY’s policies and/or customs caused the specific violations of Plaintiff’s constitutional rights at issue in
this case[ ]” and (2) “Defendant CITY’s polices and/or customs were the moving force and/or affirmative link behind the
violation of the Plaintiff’s constitutional rights and injury,
damage and/or harm caused thereby.” The Complaint lacked
any factual allegations regarding key elements of the Monell
claims, or, more specifically, any facts demonstrating that his
constitutional deprivation was the result of a custom or practice of the City of Covina or that the custom or practice was
the “moving force” behind his constitutional deprivation.
Regarding supervisory liability, Dougherty alleged only “negligent” hiring and training and pointed to no instances of
deliberate indifference. Dougherty failed to plead “enough
facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Therefore, we affirm the district
court’s dismissal of these claims.
IV.

Leave to Amend

[9] Dougherty briefly argues that he should have been
allowed leave to amend. As we stated in Albrecht v. Lund:
A party may amend the party’s pleading once as a
matter of course at any time before a responsive
pleading is served. . . . Nevertheless, if a complaint

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is dismissed for failure to state a claim upon which
relief can be granted, leave to amend may be denied,
even if prior to a responsive pleading, if amendment
of the complaint would be futile.
845 F.2d 193, 195 (9th Cir.), modified, 856 F.2d 111 (9th Cir.
1988) (internal citations and quotation marks omitted). In
Albrecht we determined that amendment would be futile,
because “Albrecht’s claim of undue influence as an alternative basis for these counts is groundless. For example,
Albrecht does not allege that Lund exercised excessive
strength or that he was a dominant subject and Albrecht was
a servient subject.” Id. at 196 n.1. Just as in Albrecht, Dougherty failed to allege any facts demonstrating that his constitutional deprivation was the result of a custom or practice of
the City of Covina or that the custom or practice was the
“moving force” behind his constitutional deprivation. Dougherty could have identified any such fact in his briefing or
argument before us, but he did not. Thus, because we must
conclude that amendment would be futile, we affirm the district court’s dismissal with prejudice of the Monell and supervisory liability claims, because amendment would be futile.
Id. at 195.
V.

Lawfulness of the Search and Seizure

Dougherty apparently does not appeal the district court’s
ruling on whether the search was executed lawfully. He does
not include this issue in his statement of issues and makes no
argument as to this issue in his Opening Brief. Accordingly,
it is not before us.
AFFIRMED.

BREWSTER, Judge, concurring in the judgment:
I conclude the search warrant was supported by probable
cause. United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006)

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(en banc). I accord more deference to the independent judgment of the magistrate judge and to the experience and training of the investigating officer. Based upon Officer
Bobkiewicz’s specific training and experience in the field of
sex crimes against children, the facts presented led him to
conclude that an individual who molests children probably
possesses child pornography. I agree with the Eighth Circuit’s
analysis in United States v. Colbert, 605 F.3d 573, 578 (8th
Cir. 2010), that it is a common sense leap that an adult male,
who teaches sixth graders, engaged in this type of inappropriate conduct would likely possess child pornography. Accord
United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir. 1994);
United States v. Houston, 754 F. Supp. 2d 1059, 1062-64 &
n.1 (D. S.D. 2010); see also Osborne v. Ohio, 495 U.S. 103,
111 n.7 (1990). Dougherty’s pattern of affirmative misconduct with several sixth grade students is closely related to an
interest in looking at sexual images of minors. The facts suggested to Officer Bobkiewicz, a highly trained and experienced “Sex Crimes/Juvenile Detective,” that a potential child
predator has moved along the continuum of looking and into
the realm of touching. Dougherty’s active misconduct distinguishes his case from the cases involving defendants who
may have passively received unsolicited child pornography.
E.g., United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir.
2007); United States v. Weber, 923 F.3d 1338, 1345 (9th Cir.
1990). More importantly, the magistrate judge reviewed the
affidavit and signed the search warrant. The magistrate
judge’s determination “should be paid great deference.”
Gourde, 440 F.3d at 1069 (quoting Illinois v. Gates, 462 U.S.
213, 236 (1983)).
Although I disagree with the probable cause analysis, I concur that the police officers are entitled to qualified immunity.
Accordingly, my position would not alter the outcome of this
case.