Estate of Kevin Brown et al v. City of San Diego et al

Filing 72

Order (1) Denying Defendants' Motion for Summary Judgment and (2) Granting In Part and Denying In Part Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Dana M. Sabraw on 5/25/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THE ESTATE OF KEVIN BROWN by its successor in interest Rebecca Brown, and REBECCA BROWN, an individual, 13 14 15 16 17 18 Case No.: 15-cv-1583-DMS (WVG) ORDER (1) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs, v. MICHAEL LAMBERT, an individual, MAURA MEKENAS-PARGA, an individual, and DOES 2-50, Defendants. 19 20 This case stems from the 1984 murder of 14 year old Claire Hough. Claire’s body 21 was found in the early morning hours at Torrey Pines State Beach. She had been brutally 22 beaten, strangled to death, and mutilated with a knife. The case was reopened after having 23 gone unsolved for decades. Through advancement in DNA technology the San Diego 24 Police Department (“SDPD”) Crime Lab was able to perform further tests in 2012. DNA 25 from a convicted rapist, Ronald Tatro, was found in blood from the victim’s clothing. In 26 addition, a combined sperm fraction taken from a vaginal swab from the victim’s body 27 revealed trace amounts of semen from a second individual, Kevin Brown, who was a 28 1 15-cv-1583-DMS (WVG) 1 former longtime employee of the Crime Lab and employed by the Lab at the time of 2 Claire’s murder. 3 Plaintiffs claim Brown’s DNA was present through an obvious case of cross 4 contamination, likely due to now-outdated standards used in the Lab in the 1980s when 5 swabs were air dried in the open and DNA science was not developed. Plaintiffs point 6 out that it was common practice at that time for Lab employees to use their own semen 7 samples or samples from their coworkers for testing reagents in the Lab and, as a result, 8 several Lab employees believed the positive hit on Brown’s DNA was due to cross 9 contamination. Plaintiffs contend Defendant Lambert obtained a warrant to search 10 Brown’s residence by misrepresenting and omitting these and other material facts in an 11 affidavit submitted to a state judge in support of their application for a search warrant. 12 Plaintiffs allege that after Defendants obtained the warrant, they engaged in a dragnet 13 search of Brown’s home and put extreme pressure on an emotionally fragile Brown, 14 ultimately resulting in a number of constitutional violations and Brown’s death by suicide. 15 Before the Court are Defendants’ motion for summary judgment and Plaintiffs’ 16 motion for partial summary judgment. Defendants seek summary judgment on each of 17 Plaintiffs’ claims, while Plaintiffs seek partial summary judgment on two of their claims. 18 The motions came on for hearing on April 21, 2017. Eugene Iredale appeared and argued 19 for Plaintiffs, and Catherine Richardson appeared and argued for Defendants.1 Having 20 considered the parties’ briefs and the record before the Court, it is apparent numerous 21 triable questions of fact exist. Accordingly, Defendants’ motion is denied and Plaintiffs’ 22 motion is granted in part and denied in part for the reasons set out below. 23 24 25 26 27 28 1 After the motion was submitted, Defendants filed a Notice of Supplemental Authority in support of their motion. (See Docket No. 71.) The Court is aware of the authority cited, and has considered it, but finds it does not affect the issues in this case for two primary reasons. First, unlike S.B. v. County of San Diego, No. 15-56848, 2017 U.S. App. LEXIS 8452 (9th Cir. May 12, 2017), this case does not allege or involve a claim for excessive force. Second, and also unlike S.B., the constitutional rights asserted here are clearly established, as explained below. 2 15-cv-1583-DMS (WVG) 1 I. 2 BACKGROUND 3 Following the discovery of Claire’s body, an autopsy was conducted by a 4 pathologist from the San Diego County Coroner’s Office. The pathologist concluded the 5 cause of death was manual strangulation, and noted a deep laceration to Claire’s throat, 6 blunt force injuries to her face, and stab wounds to her chest and genitalia. Her entire left 7 breast had been amputated, and her mouth was filled with sand. Numerous items of 8 evidence were collected from the scene, many of which were stained with blood. (Pls.’ 9 Opp’n to Defs.’ Mot., Ex. 15, Evidence Screen at 3-4, 6-9.2) Other items of evidence 10 were swabbed to detect the presence of semen. (Id. at 3, 6.) Vaginal, anal and oral swabs 11 were also taken from the victim.3 (Id. at 1.) The autopsy, which was performed the day 12 after Claire’s body was discovered, found “[n]o spermatozoa” on the oral, anal and 13 vaginal smears taken from the victim. (Pls.’ Opp’n to Defs.’ Mot., Ex. 12 at 4.) 14 Following the initial investigation, no eyewitnesses were identified, few leads were 15 developed, and Claire’s case went cold for nearly two decades. The case was revisited 16 several times by the SDPD Cold Case Team. Finally, in 2012 a Detective from the Cold 17 Case Team submitted a lab request to reexamine the physical evidence in the case with 18 the hope that new DNA technology would yield positive results. 19 specifically requested the SDPD Crime Lab reexamine the vaginal swabs, a towel 20 recovered from the scene and Claire’s clothing. The Detective 21 Criminalist David Cornacchia conducted the DNA analysis of this evidence, along 22 with other items of evidence from the case. (Pls.’ Opp’n to Defs.’ Mot, Ex. 25.) Non- 23 sperm fractions of blood stains on Claire’s jeans identified Ronald Clyde Tatro as a match. 24 (Id. at 4.) Tatro was also identified as a possible contributor to non-sperm fraction stains 25 26 27 28 2 The page number cited refers to the page number of the exhibit. There is a dispute about the number of vaginal swabs that were taken from the victim. In one report, Evidence Technician Randy Gibson reported receiving only one swab, but other reports document the presence of “swabs.” 3 3 15-cv-1583-DMS (WVG) 1 on Claire’s underwear. (Id. at 6.) In addition, DNA analysis of a sperm fraction of the 2 combined vaginal swab extracts returned a hit to Kevin Brown.4 3 At the time of Claire’s murder, Kevin Brown was thirty-two (32) years old, single, 4 and worked as a criminalist in the SDPD Crime Lab. At that time, it was common practice 5 for male criminalists working in the Lab to use their own semen samples or samples from 6 their male coworkers to test the reliability of reagents used in detecting the presence of 7 acid phosphatase, an enzyme present at high levels in sperm, and in microscopic 8 examinations to identify sperm. (Pls.’ Opp’n to Defs.’ Mot., Ex. 14 at 27; Ex. 18 at 15; 9 Ex. 19 at 19; Ex. 20 at 14.) 10 Around the time Cornacchia reported the results of his DNA analysis, Defendant 11 Michael Lambert, a detective with the SDPD, began investigating Claire’s murder. In the 12 course of that investigation, Defendant Lambert read Claire’s case file and discussed the 13 case with numerous witnesses, including Cornacchia, John Simms, James Stam, Jennifer 14 Shen and a number of other individuals who previously worked with Brown in the Crime 15 Lab. Brown left the Crime Lab in 2002, after many years of service. (Defs.’ Mot., Ex. T 16 at 24.) 17 Simms tested some of the evidence from Claire’s case shortly after the murder. At 18 his deposition in this case, Simms testified he told Defendant Lambert there was a 19 possibility he “could have done” something while “working on the evidence that might 20 have resulted in possible contamination” of the evidence with Brown’s semen sample, 21 “that there was a possibility.” (Pls.’ Opp’n to Defs.’ Mot., Ex. 14 at 76.) (See also id. at 22 87 (stating Simms told Lambert he had “concerns about a breach of protocol that [he] 23 may have committed that might have led to possible contamination.”)) 24 25 4 26 27 28 A third individual, Mark Wilkinson, also was identified from a sperm fraction on Claire’s underwear. Wilkinson was Claire’s boyfriend but was eliminated as a suspect as he was not in San Diego at the time of the murder. He lived in Rhode Island. Claire also lived in Rhode Island, and was visiting her grandparents in San Diego at the time of her murder. 4 15-cv-1583-DMS (WVG) 1 Stam, one of Brown’s former supervisors in the Crime Lab, also testified in his 2 deposition in this case that he told Defendant Lambert he believed “contamination” was 3 a more likely explanation as to why Brown’s DNA was found on the evidence from the 4 Hough case. (Pls.’ Opp’n to Defs.’ Mot., Ex 18 at 26.) He tried “to convince Detective 5 Lambert that you need to look at the contamination first. That needs to be the No. 1 thing. 6 You need to eliminate that 100 percent and then maybe go on with the rest of it.” (Id. at 7 30.) 8 It is unclear when Defendant Lambert had these conversations with Simms and 9 Stam. However, Cornacchia testified at his deposition in this case that he informed 10 Defendant Lambert about the male criminologists’ practice of using their own semen 11 samples no later than November 2013, before Lambert applied for the search warrant in 12 this case. (Pls.’ Opp’n to Defs.’ Mot., Ex. 24 at 59) (stating no later than November 2013, 13 Cornacchia “discussed with Detective Lambert issues concerning the presence of semen 14 samples from analysts in the lab being something that happens.”) 15 On January 3, 2014, Defendant Lambert applied for a search warrant for Brown’s 16 home, which Brown then shared with his wife Rebecca Brown and Rebecca’s mother and 17 brother. In the search warrant affidavit, Lambert recounted the facts surrounding Claire’s 18 murder and the initial investigation. (Defs.’ Mot., Ex. C.) He also recounted the cold 19 case investigations that began in 1996. He also went over DNA evidence and analysis, 20 in general. Absent from the affidavit, however, was any discussion of the now-outdated 21 lab practices in 1984, which were considerably different from 2012 practices when the 22 DNA analysis in this case was conducted. 23 The affidavit then turned to the DNA analysis of the evidence in Claire’s case, and 24 explained that through that analysis, two suspects were identified. The first was Ronald 25 Tatro. Lambert set out Tatro’s criminal history prior to Claire’s murder, which included 26 convictions for rape and battery, and stated after Claire’s murder, Tatro was also 27 convicted of the attempted rape of a teenage girl in La Mesa, California. Tatro was also 28 5 15-cv-1583-DMS (WVG) 1 a person of interest in the February 1984 murder of prostitute Carol Defleice.5 The second 2 suspect identified through the DNA analysis was Kevin Brown. As noted, Brown was 3 identified through analysis of a combined sperm fraction (where DNA is extracted from 4 sperm cells) from the vaginal swab taken from the victim. 5 In the affidavit, Lambert stated Brown was a former employee of the SDPD Crime 6 Lab, but he failed to inform the judge of the male lab employees’ practice of using their 7 own semen samples or samples from their coworkers in testing reagents in the Lab. 8 Rather than raising the possibility that the vaginal swab may have been contaminated in 9 the Lab by Brown’s semen sample, Lambert stated Jennifer Shen, then the manager of the 10 Lab, stated, “BROWN had no access to the evidence in the HOUGH murder” and “that 11 cross contamination is not possible.” (Defs.’ Mot., Ex. C at 17.) This statement was 12 made despite numerous documented instances of contamination in the Crime Lab. (Pls.’ 13 Opp’n to Defs.’ Mot. at 19-22) (listing twenty (20) instances of cross contamination)). 14 Lambert also failed to disclose to the judge that the autopsy analysis of the vaginal swab 15 in 1984 was negative for sperm. 16 Defendant Lambert then recounted in the affidavit his investigation into Kevin 17 Brown, which revealed that prior to getting married and while working in the Lab, Brown 18 talked about going to strip clubs. Lambert also recounted Brown’s nickname in the Lab 19 was “Kinky,” and other lurid stories about Brown from his coworkers. Lambert then 20 21 There is no dispute about Tatro’s criminal history, and it reflects a longstanding campaign of brutal violence against women. The 1974 rape involved Tatro luring a young woman into his car, placing her in the trunk and then raping her at knifepoint while threatening to kill her. (Pls.’ Opp’n to Defs.’ Mot., Ex. 26 at LAMBERT 004532-34.) The incident in La Mesa involved Mr. Tatro offering to help a 16 year old girl who was having car trouble, and once she was in his car, using a stun gun or some other electrical device to shock her. (Id. at LAMBERT 004310-11.) When Tatro was apprehended for that crime, (he was found naked in the back of his van with his wrists slit), the officers confiscated a pornographic magazine depicting photos, stories and devices relating to bondage and sadomasochism as well as a blood stained paring-type knife. (Id. at LAMBERT 004321.) 5 22 23 24 25 26 27 28 6 15-cv-1583-DMS (WVG) 1 concluded, based on the 2012 DNA analysis of the vaginal swab, that “Kevin BROWN 2 had sexual intercourse with 14 year old Claire HOUGH.” (Id. at 29.) Despite failing to 3 find any evidence linking Tatro and Brown, the affidavit identified Brown as a suspect in 4 Claire’s murder, together with Tatro.6 Lambert stated, “I believe the sexual intercourse 5 Brown had with Claire [] was not consensual and appears to be contemporaneous to the 6 murder.” 7 perpetrators, acting in concert, in the commission of the sexual assault, mutilation, and 8 murder of Claire HOUGH,” (id. at 4), and stated the search warrant was an “attempt to 9 obtain information to link” Brown and Tatro. (Id.) Lambert also sought the warrant “to 10 find evidence that Kevin Brown is following this case, and another similar 1978 murder 11 of a teenage girl Barbara NANTAIS.” (Id. at 3.) (Id. at 30-31). Lambert’s theory was that Brown and Tatro were “the 12 The search warrant affidavit requested permission to seize ten (10) categories of 13 evidence, including: (1) "Newspaper clippings or any other print news relating to the 14 murders of Claire HOUGH and/or Barbara NANTAIS[,]" (2) "Address books, 15 diaries/journals, hand written in nature[,]" (3) "San Diego Police Department Crime Case 16 Reports and/or Arrest Reports relating to Sexual Assaults[,]" (4) "Magazine, videos, … 17 books photographs or other written or photographic evidence depicting or related to 18 teenage or preteen pornography, rape, bondage, and sadomasochism[,]" (5) "Receipts for 19 storage facilities including offsite storage, safety deposit boxes and 'cloud' storage[,]" and 20 (6) "Photographs, disposable cameras, negatives, photographic film that relate to Claire 21 HOUGH, Ronald TATRO, James ALT, or Barbara NANTAIS." (Id. at 2-3.) Lambert 22 also requested permission to seize "Papers, documents and effects tending to show 23 dominion and control" over the premises, (id. at 2), though it was well known the Browns 24 lived in the home. (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 91.) Lambert presented his 25 affidavit in support of the warrant to a district attorney, who reviewed it and did not offer 26 /// 27 28 6 Tatro died in 2011, leaving Brown as the only suspect. 7 15-cv-1583-DMS (WVG) 1 any changes or corrections. (Defs.' Mot., Ex. G at 117.) Based on Lambert's affidavit, 2 the judge issued the warrant. 3 The warrant was executed six days later on January 9, 2014. On that day, prior to 4 executing the warrant, the officers scheduled to participate in the search attended a 5 meeting at police headquarters. (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 95.) During that 6 meeting, Lambert conducted a search warrant briefing during which he told the detectives 7 he wanted them to seize every videotape in the house. (Pls.' Mot., Ex. 5 at 96.) 8 9 It is unclear what time the search began and what time it ended. It is also unclear how many officers were involved in the search.7 However, the evidence reflects 10 Defendant Lambert participated in the search as did Defendant Maura Mekenas-Parga, 11 another SDPD Detective, (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 95), and that they both 12 made decisions about what items would be seized. (Pls.’ Opp’n to Defs.’ Mot., Ex. 29 at 13 44-45.) Defendant Mekenas-Parga testified at her deposition in this case that it was her 14 understanding the warrant allowed for the seizure of all photographs the officers deemed 15 as "possible evidence." (Id. at 53.) She also testified the warrant allowed the officers to 16 seize "all VCR tapes." (Pls.' Mot., Ex. 4 at 78-79.) Mekenas-Parga testified her reading 17 of the warrant allowed for seizure of "anything recording." (Id. at 80.) According to 18 Mekenas-Parga, "any cell phone in the house could be seized," "any thumb drive in the 19 house could be seized." (Id. at 84.) Mekenas-Parga also testified "any newspaper article, 20 regardless of what it said or the date … was legitimately subject to seizure[.]" (Id. at 113.) 21 Notably, Mekenas-Parga did not "review any of the items in” certain boxes “to see if they 22 could be removed and left because they had nothing to do with anything permitted to be 23 seized in the warrant[.]" (Id. at 89.) She also did not review any of the photo albums 24 before they were removed from the house. (Id. at 91.) 25 /// 26 27 28 At oral argument, Plaintiffs’ counsel represented thirteen (13) officers may have participated in the execution of the warrant, but there is no evidence to that effect. 7 8 15-cv-1583-DMS (WVG) 1 In all, the officers seized fourteen (14) boxes from the Browns’ home. (Defs.' Mot., 2 Ex. O.) The items seized included: (1) "Papers Christmas Letter w/cabin info folder[,]" 3 (2) "Binder 'chemical imbalance' mental health problems[,]" (3) Kevin Brown's SDPD 4 badge, (4) seven boxes of photos, journals, books, photo albums, paperwork, (5) other 5 loose photos and photo albums, (6) a "callback roster from June 1998 for" SDPD, (7) 6 handwritten cards, (8) notebooks, (9) a drama program from Mater Dei dated March 1, 7 2013,8 (10) a file folder titled, "Apple Products," (11) a file folder titled, "Business 8 Folder," and (12) a file folder titled "Divorce Annulments[.]" (Defs.' Mot., Ex. E.) (See 9 also Decl. of Rebecca Brown in Supp. of Pls.’ Mot., Exs. A-B.) 10 Detective Lambert testified he completed his review of the evidence seized from 11 the Browns’ home approximately three months after the seizure, or in April 2014. (Defs.’ 12 Mot., Ex. G at 127.) None of the evidence he reviewed “had any probative value to prove 13 that Kevin Brown had committed the” murder of Claire Hough. (Id.) Nevertheless, 14 Defendant Lambert did not return the property to the Browns at that time. (Id.) Instead, 15 Rebecca Brown began inquiring of Defendant Lambert about the return of their property. 16 She specifically asked about her computer, which was returned to her two weeks 17 thereafter. (Defs.’ Mot., Ex. H at 126.) Approximately three months after that, she 18 inquired of Defendant Lambert when the rest of their property would be returned. (Id. at 19 127.) Lambert’s response was, “it’s all coming back soon[.]” (Id.) 20 After another month passed without the return of their property, Rebecca Brown 21 again phoned Defendant Lambert to inquire. (Pls.’ Opp’n to Defs.’ Mot., Ex. 32 at 73.) 22 As before, Lambert told her they would “be getting it all back soon.” (Id.) The Browns 23 believed that once their property was returned, “that it would be over.” (Id. at 75.) Kevin 24 Brown, in particular, was “fixated on the issue of the return of the property.” (Id.) “He 25 started putting a calendar in his closet in June when the detective said, it’s coming back 26 soon. So he would mark off each date until it was going to happen.” (Id. at 76.) 27 28 8 Rebecca Brown is a high school teacher at Mater Dei High School. 9 15-cv-1583-DMS (WVG) 1 After the search was conducted, and while the Browns were waiting for the return 2 of their property, Kevin Brown began experiencing increased anxiety. (Id. at 43.) Brown 3 first began suffering from anxiety disorder in high school. (Id. at 36.) His insomnia 4 worsened. (Id.) Rebecca Brown testified that Kevin Brown was depressed. (Id. at 46.) 5 “He had difficulty getting out of bed. He lost 25 pounds. His hands started shaking. He 6 started looking older. He had me take him to Urgent Care a couple of times because he 7 was anxious.” (Id.) On September 26, 2014, Rebecca Brown came home from work and 8 found Kevin Brown in bed. (Id. at 62.) She said he “was groggy. There was a bullet on 9 the floor next to the bed, and he said he’d written me a letter.” (Id. at 62-63.) 10 After the September 26, 2014 incident, Rebecca Brown’s brother John Blakely 11 removed all the guns from the Brown household because “it was clear to [him] that 12 something bad was happening” with them. (Defs.’ Mot., Ex. Q at 16.) That was the 13 second time Mr. Blakely removed the guns from the house after the search warrant was 14 executed. (Id.) Mr. Blakely informed Defendant Lambert he had removed the guns from 15 the house, and did so again after the incident on September 26, 2014. (Id.) Later that 16 week, Lambert went to Rebecca Brown’s workplace to conduct a welfare check on her. 17 Brown testified that during that meeting, she told Lambert Kevin Brown “might kill 18 himself.” (Id. at 107.) Lambert denies Rebecca Brown shared that concern with him. 19 (Defs.’ Mot., Ex. G at 148.) Less than one month later, Kevin Brown committed suicide 20 by hanging himself from a tree at Cuyamaca State Park. (Third Am. Compl. (“TAC”) ¶ 21 244.) 22 On July 16, 2015, Rebecca Brown filed the present case on behalf of herself and 23 Kevin Brown’s Estate. A Second Amended Complaint (“SAC”) filed on October 5, 2015, 24 named only Lambert as a Defendant, and alleged claims for (1) execution of a warrant 25 obtained in violation of Franks v. Delaware, (2) execution of an overbroad warrant, (3) 26 seizure of property beyond the scope of the warrant, (4) wrongful detention of, and refusal 27 to return, seized property, (5) wrongful death under 42 U.S.C. § 1983, and (6) deprivation 28 10 15-cv-1583-DMS (WVG) 1 of right of familial association. On June 8, 2016, Plaintiffs filed the TAC, which realleges 2 the claims in the SAC and adds Maura Mekenas-Parga as a Defendant. 3 II. 4 DISCUSSION 5 As stated above, both sides move for summary judgment in this case. Plaintiffs 6 move for partial summary judgment on claims three and four only, and Defendants move 7 for summary judgment on all of Plaintiffs’ claims. 8 A. Legal Standard 9 Summary judgment is appropriate if there is no genuine issue as to any material 10 fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 11 The moving party has the initial burden of demonstrating that summary judgment is 12 proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must 13 identify the pleadings, depositions, affidavits, or other evidence that it "believes 14 demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 15 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the 16 litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. 17 v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 18 The burden then shifts to the opposing party to show that summary judgment is not 19 appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, 20 and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 21 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party 22 cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th 23 Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for 24 trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th 25 Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go 26 beyond pleadings, plaintiff must counter by producing evidence of his own). More than 27 a "metaphysical doubt" is required to establish a genuine issue of material fact. 28 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 11 15-cv-1583-DMS (WVG) 1 B. Franks Claim 2 In their first claim, Plaintiffs allege Defendant Lambert violated their Fourth 3 Amendment rights when he obtained the search warrant for the Brown home through the 4 use of “false statements, and deliberate material omissions.” (Third Am. Compl. ¶ 249.) 5 This claim is based on Franks v. Delaware, 438 U.S. 154 (1978), wherein the Court 6 “established a criminal defendant’s right to an evidentiary hearing when he made a 7 showing of deliberate or reckless disregard for the truth in a search warrant affidavit and 8 demonstrated that but for the dishonesty, the affidavit would not support a finding of 9 probable cause.” Liston v. County of Riverside, 120 F.3d 965, 972 (9th Cir. 1997). 10 Although this standard was established in a criminal context, it “‘also defines the scope 11 of qualified immunity in civil rights actions.’” Id. (quoting Branch v. Tunnell, 937 F.2d 12 1382, 1387 (9th Cir. 1991)) (quotation marks omitted). To survive summary judgment on 13 a Franks claim of judicial deception, a Section 1983 plaintiff must “(1) establish that the 14 warrant affidavit contained misrepresentations or omissions material to the finding of 15 probable cause, and (2) make a ‘substantial showing’ that the misrepresentations or 16 omissions were made intentionally or with reckless disregard for the truth.” Bravo v. City 17 of Santa Maria, 665 F.3d 1076, 1087 (9th Cir. 2011). “If these two requirements are met, 18 the matter must go to trial.” Id. (citing Liston, 120 F.3d at 973). See also Hervey v. Estes, 19 65 F.3d 784, 788-789 (9th Cir. 1995) (stating to survive motion for summary judgment 20 on the ground of qualified immunity plaintiff must make a substantial showing of 21 deliberate falsehood or reckless disregard for the truth and establish that, “but for the 22 dishonesty, the challenged action would not have occurred.”). Defendants argue these 23 elements are not met here, therefore they are entitled to summary judgment. 24 In support of this argument, Defendants address a number of alleged omissions and 25 misrepresentations in Lambert’s affidavit in support of the warrant. As for omissions, 26 Defendants admit Lambert omitted that despite a lengthy investigation, there was no 27 evidence of any connection between Kevin Brown and Ronald Tatro. Defendants also 28 admit Lambert omitted that the autopsy report concluded “No spermatazoa noted” in the 12 15-cv-1583-DMS (WVG) 1 oral, anal and vaginal smears taken from the victim. (Pls.’ Opp’n to Defs.’ Mot., Ex. 12 2 at 4.) Defendants also do not deny Lambert failed to disclose that a few days after the 3 autopsy, Simms analyzed vaginal swabs taken from the victim and, consistent with the 4 autopsy results, found no evidence of sperm. (Pls.’ Opp’n to Defs.’ Mot, Ex. 14 at 44- 5 52.) Defendants also do not deny that Lambert failed to disclose the information he 6 received from Cornacchia that male analysts working in the SDPD crime lab, like Brown, 7 used their own semen samples when testing reagents for acid phosphatase. (Pls.’ Opp’n 8 to Defs.’ Mot., Ex. 24 at 59.) Lambert also failed to disclose that Stam, Brown’s former 9 supervisor, told Lambert he believed “contamination” was a “more likely explanation” as 10 to why Kevin Brown’s DNA was found on the victim’s vaginal swab. (Pls.’ Opp’n to 11 Defs.’ Mot., Ex. 18 at 26.)9 Finally, Lambert failed to disclose that the pathologist 12 performing the autopsy did not find any physical trauma consistent with rape, or make 13 any findings that Claire was raped or engaged in sexual intercourse before her death. 14 On the issue of misrepresentations, Defendants deny Lambert made any, but in 15 light of the omissions set out above, as well as other evidence presented in this case, there 16 is a genuine issue of material fact on this point. Unlike omissions, which are easily 17 identifiable by reference to the affidavit itself, whether the affidavit contains 18 misrepresentations is a more difficult question. Here, there are at least three statements 19 in the affidavit that a reasonable jury could find were misrepresentations. The first is 20 Lambert’s statement that cross contamination was not possible. The second is the 21 statement that Brown had no access to the evidence in the Hough case. The third is the 22 statement that Kevin Brown had sexual intercourse with Claire Hough. 23 In the affidavit, Lambert stated that SDPD Lab Manager Jennifer Shen informed 24 him “that cross DNA contamination is not possible.” (Defs.’ Mot., Ex. C at 17) (emphasis 25 in original). Defendants assert this was not a misrepresentation, but the evidence raises a 26 27 28 9 As mentioned above, there is a dispute about when Lambert had this conversation with Stam, namely whether the conversation occurred before or after Lambert submitted the application for the search warrant. 13 15-cv-1583-DMS (WVG) 1 factual dispute on that issue. First, Shen testified she did not use “those words[,]” i.e., 2 say that cross contamination was not possible. (Pls.’ Opp’n to Defs.’ Mot., Ex. 22 at 136.) 3 Second, outside of this case, Plaintiffs presented evidence of several instances of cross 4 contamination documented by the Crime Lab. Third, Plaintiffs also presented evidence 5 of a significant discrepancy in the number of sperm cells found in the combined sperm 6 fractions that resulted in the identification of Kevin Brown. According to Plaintiffs’ 7 expert, those fractions “would be roughly equivalent to 158 sperm cells, assuming that all 8 of the DNA was from sperm cells and not from any residual epithelial cells. The average 9 number of sperm cells in a typical ejaculate, for comparison purposes, ranges from 10 200,000,000 – 600,000,000.” (Pls.’ Opp’n to Defs.’ Mot., Ex. 7 at 13.) Lambert detailed 11 in the affidavit how trace amounts of semen attributed to Brown could have resulted; e.g., 12 Brown could have failed to achieve a full ejaculation, (Defs.’ Mot., Ex. C at 17), or he 13 could have a low sperm count. (Id.) The affidavit, however, did not set out the other 14 plausible theory: cross contamination. 15 Lambert’s statement that Brown had no access to the evidence in this case also 16 creates the impression that cross contamination was not possible, but that statement could 17 also be misleading given the evidence that lab employees’ semen was present in the Lab 18 and available for testing reagents even if the employee was not otherwise involved or 19 participating in the particular investigation, which facts were omitted from the affidavit. 20 Some facts are “required to [be presented in an affidavit] to prevent technically true 21 statements in the affidavit from being misleading[,]” Liston, 120 F.3d at 973, and 22 Lambert’s statement that Brown had no access to the evidence in the Hough case may fall 23 into that category. 24 Another possible misrepresentation is Lambert’s statement that “Kevin BROWN 25 had sexual intercourse with 14 year old Claire HOUGH.” (Defs.’ Mot., Ex. C at 29.) 26 That statement may have been a misrepresentation in light of the autopsy report, which 27 “did not make any findings as to whether Hough was raped or engaged in sexual 28 intercourse before her death.” (Defs.’ Mot., Ex. I at 3.) As with the evidence of the lab 14 15-cv-1583-DMS (WVG) 1 employees’ practice of using their own semen or that of their coworkers in testing 2 reagents, this evidence from the autopsy report was also not included in the affidavit. The 3 categorical statement that Brown had sex with Claire, combined with the statements from 4 Brown’s prior co-workers that he used to frequent strip clubs and that his nickname was 5 “Kinky,” painted a picture of Brown as sexually deviant. It left out the possibility that 6 his DNA was linked to the case due to cross contamination. 7 Viewing the evidence as a whole in the light most favorable to Plaintiffs, which 8 this Court must do on the present motion, there are genuine issues of material fact as to 9 whether the affidavit contains any misrepresentations. Despite this factual dispute, the 10 parties urge the Court to address whether the affidavit, as corrected by each side, would 11 have provided probable cause for the issuance of the search warrant, for the answer to 12 that question may determine whether there was a violation of Plaintiffs’ constitutional 13 rights. The Ninth Circuit has taken this approach in other cases, see, e.g., Bravo, 665 F.3d 14 1076; Liston, 120 F.3d 965, but those cases involved undisputed omissions. This case, 15 by contrast, involves not only omissions, but allegations of misrepresentations, which are 16 clearly disputed and intertwined with the omissions. In light of those disputes, and the 17 dispute about whether any of the alleged misrepresentations or omissions were made 18 intentionally or with reckless disregard for the truth, this Court declines to address the 19 issue of probable cause here. Whether any misrepresentations were made, and whether 20 any omissions or misrepresentations were intentional and reckless, are matters for the 21 jury, and they must be resolved before addressing the issue of probable cause. 10 22 23 24 25 26 27 28 10 If the jury finds there were no intentional or reckless misrepresentations or omissions, there will be no need to reach the issue of probable cause. However, if the jury finds for Plaintiffs on this issue, then the probable cause determination will need to be addressed. The Court reserves for further briefing whether the probable cause determination is a matter of law for the Court after the jury answers special interrogatories regarding the alleged misrepresentations and omissions, or whether the matter should be submitted to the jury. See, e.g., Simms v. Village of Albion, 115 F.3d 1098, 1110 (2d Cir. 1997) (“[A] determination of what constitutes probable cause is a mixed question of fact and law. A mixed question of fact and law may be submitted to the jury only if the jury is instructed 15 15-cv-1583-DMS (WVG) For all of these reasons, Defendants’ motion for summary judgment on this claim 1 2 is denied. 3 C. Overbroad Warrant 4 Plaintiffs’ second claim alleges the search warrant was overbroad. In response to 5 Defendants’ motion, Plaintiffs identify Clauses 2, 5 and 7 as being overbroad. Clause 2 6 is the “dominion and control” clause, and it allowed for the seizure of “Papers, documents 7 and effects tending to show dominion and control over said premises ….” (Defs.’ Mot., 8 Ex. C at 2.) Clause 5 allowed for the seizure of “Address books, diaries/journals, hand 9 written in nature.” (Id. at 3.) Clause 7 allowed for the seizure of “Magazines, videos, 10 electronic files, books, photographs or other written or photographic evidence depicting 11 or related to teenage or preteen pornography, rape, bondage, and sadomasochism.” (Id.) 12 Defendants assert the warrant was not overbroad, and even if it was, they are entitled to 13 qualified immunity. 14 “A warrant must particularly describe ‘the place to be searched, and the person or 15 things to be seized.’” Ewing v. City of Stockton, 588 F.3d 1218, 1228 (9th Cir. 2009) 16 (quoting U.S. Const. amend. IV). This particularity “requirement is designed ‘to prevent 17 a general, exploratory rummaging in a person’s belongings.’” Id. (quoting United States 18 v. McClintock, 748 F.2d 1278, 1282 (9th Cir. 1984)) (internal quotation marks omitted). 19 The Ninth Circuit considers three factors in analyzing the breadth of a warrant: 20 21 22 23 (1) whether probable cause existed to seize all items of a category described in the warrant; (2) whether the warrant set forth objective standards by which executing officers could differentiate items subject to seizure from those which were not; and (3) whether the government could have described the items more particularly in light of the information available .... 24 25 26 27 28 as to the applicable legal standards.”). This mixed question is given to the jury in other contexts, see Manual of Model Civil Jury Instructions § 9.20 (9th Cir. 2010) (Unreasonable Seizure of Person—Probable Cause Arrest), but it is unclear whether that general practice applies to this claim or whether the issue is one for the Court. 16 15-cv-1583-DMS (WVG) 1 United States v. Flores, 802 F.3d 1028, 1044 (9th Cir. 2015), cert. denied, 137 S.Ct. 36 2 (2016), (quoting United States v. Lei Shi, 525 F.3d 709, 731-32 (9th Cir. 2008)). 3 Here, Defendants assert the warrant was not overbroad, but they fail to show the 4 Clauses identified above, particularly the open-ended Clause 5, were not overbroad as a 5 matter of law. Indeed, they do not address these specific clauses at all, instead arguing 6 generally that “[t]he warrant was specific as to the places to be searched and the items to 7 be seized.” (Mem. of O, & A. in Supp. of Defs.’ Mot. at 17.) This generalized argument 8 does not show Defendants are entitled to summary judgment on the ground the warrant 9 was not overbroad. 10 Nor are Defendants entitled to summary judgment on the ground of qualified 11 immunity. On this issue, Defendants raise two arguments. First, they suggest Lambert is 12 entitled to qualified immunity because he presented his affidavit to his supervisor and a 13 district attorney, and a judge then issued the warrant. (Mem. of P. & A. in Supp. of Defs.’ 14 Mot. at 16.) Given that there are questions of fact about whether Lambert made 15 misrepresentations and omissions in the affidavit, however, he is not entitled to qualified 16 immunity on the claim that the warrant was overbroad. See Groh v. Ramirez, 540 U.S. 17 551, 564 (2004) (“Moreover, because petitioner himself prepared the invalid warrant, he 18 may not argue that he reasonably relied on the Magistrate’s assurance that the warrant 19 contained an adequate description of the things to be seized and was therefore valid.”)11 20 Next, Defendants argue Defendant Mekenas-Parga is entitled to qualified 21 immunity because she did not personally participate in the efforts to obtain the warrant. 22 As an initial matter, this argument goes to Plaintiffs’ substantive claim, not to the issue of 23 qualified immunity. Nevertheless, the argument is not persuasive. There is no dispute 24 Mekenas-Parga did not assist in obtaining the warrant, but Plaintiffs’ claims against her 25 are not based on the request for and the subsequent issuance of the warrant. Rather, they 26 27 28 11 Defendants also raise this argument in support of their request for summary judgment on Plaintiffs’ third claim for relief. For the reasons stated above, the Court rejects the argument as against that claim, as well. 17 15-cv-1583-DMS (WVG) 1 are based on her execution of the warrant, namely executing a warrant that was overbroad 2 on its face and seizing documents that went beyond the scope of the warrant. Defendants 3 have not shown Defendant Mekenas-Parga did not personally participate in those tasks. 4 On the contrary, the evidence reflects she was involved in the execution of the warrant 5 and made decisions about which items would be seized. (Pls.’ Opp’n to Defs.’ Mot., Ex. 6 27 at 95; Pls.’ Opp’n to Defs.’ Mot., Ex. 29 at 44-45.) Thus, Defendants are not entitled 7 to summary judgment on Plaintiffs’ second claim. 8 D. Unlawful Seizure of Property Beyond the Scope of the Warrant 9 Plaintiffs’ third claim alleges Defendants seized property beyond the scope of the 10 warrant in violation of the Fourth Amendment. 12 Both Plaintiffs and Defendants move 11 for summary judgment on this claim, with Plaintiffs arguing Defendants seized property 12 beyond the scope of the warrant, and Defendants arguing to the contrary.13 13 “Because ‘indiscriminate searches and seizures conducted under the authority of 14 ‘general warrants’ were the immediate evils that motivated the framing and adopting of 15 the Fourth Amendment,’ that Amendment requires that the scope of every authorized 16 search be particularly described.” Walter v. United States, 447 U.S. 649, 657 (1980) 17 (internal citations omitted). “‘[I]f the scope of the search exceeds that permitted by the 18 terms of a validly issued warrant …, the subsequent seizure is unconstitutional without 19 more.’” Wilson v. Layne, 526 U.S. 603, 611 (1999) (quoting Horton v. California, 496 20 U.S. 128, 140 (1990)). See also United States v. Sedaghaty, 728 F.3d 885, 915 (9th Cir. 21 22 23 24 25 26 27 28 At oral argument, Plaintiffs’ counsel clarified this claim applies only to the seizure of physical items and objects, such as papers and photographs. It does not encompass the seizure of computers, cell phones or other types of electronic media and devices. 13 As an initial matter, Defendants assert in conclusory fashion that Plaintiffs lack standing to challenge the seizure and retention of items that did not belong to either Kevin or Rebecca Brown. (See Mem. of P. & A. in Supp. of Defs.’ Mot. at 19, 20.) Plaintiffs do not address this argument, and it warrants more attention than it was given by both sides. On the present record, the Court declines to decide the issue, but the parties should be prepared to address it more fully before the case is presented to the jury. 12 18 15-cv-1583-DMS (WVG) 1 2014) (stating government’s seizure of items beyond terms of warrant violates Fourth 2 Amendment.) 3 4 5 6 The Supreme Court has emphasized that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers” as opposed to physical objects, and that given the danger of coming across papers that are not authorized to be seized, “responsible officials, including judicial officials, must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.” 7 8 Sedaghaty, 728 F.3d at 914 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11 9 (1976)). See also United States v. Rettig, 589 F.2d 418, 422-23 (9th Cir. 1978) (“An 10 examination of the books, papers, and personal possessions in a suspect’s residence is an 11 especially sensitive matter, calling for careful exercise of the magistrate’s judicial 12 supervision and control.”) 13 Here, Defendants argue in their opposition to Plaintiffs’ motion that the seizure of 14 Plaintiffs’ property is subject to the test set out in Pacific Marine Center, Inc. v. Silva, 15 809 F.Supp.2d 1266 (E.D. Cal. 2011). That test states, “[w]hen considering ‘[w]hether a 16 search exceeds the scope of a search warrant,’ the court must engage in ‘an objective 17 assessment of the circumstances surrounding the issuance of the warrant, the contents of 18 the search warrant, and the circumstances of the search.’” Id. at 1280 (quoting United 19 States v. Hitchcock, 286 F.3d 1064, 1071 (9th Cir.), amended by 298 F.3d 1021 (9th Cir. 20 2001)). The claim in this case, however, is not addressed to the scope of the search. 21 Indeed, Plaintiffs do not appear to dispute that Defendants were authorized to search the 22 property that was ultimately seized in this case. Rather, the claim here concerns the actual 23 seizure of Plaintiffs’ property, and alleges the seizure went beyond the scope of the 24 warrant. The test set out in Pacific Marine, therefore, does not apply here. 25 The law applicable to the claim asserted here is found in United States v. Tamura, 26 694 F.2d 591 (9th Cir. 1982). In that case, as here, the defendants “challenge[d] only the 27 scope of the seizure.” Id. at 595. There, “[w]hen the agents seized all Marubeni’s records 28 for the relevant time periods, they took large quantities of documents that were not 19 15-cv-1583-DMS (WVG) 1 described in the search warrant.” Id. In response to the defendant’s challenge to the 2 seizure, “[t]he Government argue[d] that the seizure was reasonable because the 3 documents were intermingled and it was difficult to separate the described documents 4 from the irrelevant ones.” Id. The Ninth Circuit was not persuaded. It stated: “It is 5 highly doubtful whether the wholesale seizure by the Government of documents not 6 mentioned in the warrant comported with the requirements of the fourth amendment. As 7 a general rule, in searches made pursuant to warrants only the specifically enumerated 8 items may be seized.” Id. The court acknowledged “that all items in a set of files may 9 be inspected during a search, provided that sufficiently specific guidelines for identifying 10 the documents sought are provided in the search warrant and are followed by the officers 11 conducting the search.” Id. However, the court also stated, “the wholesale seizure for 12 later detailed examination of records not described in a warrant is significantly more 13 intrusive, and has been characterized as ‘the kind of investigatory dragnet that the fourth 14 amendment was designed to prevent.’” Id. (quoting United States v. Abrams, 615 F.2d 15 541, 543 (1st Cir. 1980)). The court went on to state: 16 17 18 19 20 21 22 23 24 25 26 In the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute’s Model Code of Pre-Arraignment Procedure. If the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists. See United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982). The essential safeguard required is that wholesale removal must be monitored by the judgment of a neutral, detached magistrate. In the absence of an exercise of such judgment prior to the seizure in the present case, it appears to us that the seizure, even though convenient under the circumstances, was unreasonable. 27 28 Id. at 595-96. 20 15-cv-1583-DMS (WVG) 1 Here, there is no dispute about what Defendants seized, namely 14 boxes of 2 documents, four large trash bags containing Plaintiffs’ property, and a suitcase. (Defs.’ 3 Opp’n to Pls.’ Mot. at 9.) 4 photographs and other items, including but not limited to: 5 international driving permit, (2) a music folder for students, (3) Kevin Brown’s mother’s 6 tax return from 2000, (4) a note from Ronald and Nancy Reagan, (5) a coaster from the 7 Black Angus in Wiesbaden, Germany, (6) a copy of the Magna Carta, (7) a steamship 8 ticket from 1932, (8) Rebecca Brown’s report cards, (9) 45 singles of Perry Como, Bing 9 Crosby and Barbara Streisand and (10) a recipe for fudge. (Pls.’ Mot., Ex. 5 at 124-27.) 10 There is no dispute these items were not subject to seizure pursuant to the warrant. (Id.) 11 Nevertheless, Defendants argue the seizure of any documents outside the scope of 12 the warrant was reasonable because it would have been too time-consuming for the 13 officers to “go through every paper, album, journal, videotape and photograph at the 14 home.” (Mem. of P. & A. in Supp. of Defs.’ Mot. at 18.) This argument is similar to that 15 made by the Government in Tamura, and like the Ninth Circuit in that case, this Court 16 rejects it. As indicated in Tamura and Hillyard, the instances in which documents are “so 17 intermingled that they cannot feasibly be sorted on site” are “comparatively rare” and 18 “exceptional.” Tamura, 694 F.2d at 595; Hillyard, 677 F.2d at 1340. Defendants have 19 not shown this is one of those cases. Within these boxes and trash bags were thousands of (1) Rebecca Brown’s 20 Indeed, the only evidence offered in support of Defendants’ argument is the 21 testimony of Rebecca Brown, who when asked if she had “any idea how long it would 22 have taken someone to go through all those photos if they did it at the scene at your 23 house,” responded, “It would have taken hours.” (Defs.’ Mot., Ex. G at 119.) Notably, 24 Defendants fail to provide any evidence of how many officers were involved in executing 25 the warrant or how long it took those officers to execute the warrant. And contrary to 26 Defendants’ assertion that it would have been too time-consuming to conduct a search of 27 these documents prior to their seizure, it appears the officers executing the warrant did 28 not make that attempt. Rather, Defendant Mekenas-Parga testified that when the officers 21 15-cv-1583-DMS (WVG) 1 came across a box of photographs, they did not “go through it.” (Pls.’ Opp’n to Defs.’ 2 Mot., Ex. 29 at 52-53.) Her feeling was “that there was no requirement of any review of 3 anything before it was seized.” (Pls.’ Mot., Ex. 4 at 82.) 4 In this case, as in Tamura, the government agents responsible for the search “did 5 not minimize intrusions on privacy, … but instead seized papers and records beyond those 6 the warrant authorized.” Sedaghaty, 728 F.3d at 914-15. On the current record, the Court 7 concludes the seizure of the property described above, as well as other similar property, 8 went beyond the scope of the warrant, and was therefore unreasonable and a violation of 9 Plaintiffs’ Fourth Amendment rights. 10 Notwithstanding this finding, Defendants argue they are still entitled to judgment 11 on this claim on the basis of qualified immunity. As with Plaintiffs’ second claim, 12 Defendants argue here they are entitled to qualified immunity because they did not 13 personally participate in the seizure. As stated above, that argument goes to the merits of 14 Plaintiffs’ claim, not whether Defendants are entitled to qualified immunity. In any case, 15 that argument is refuted by the evidence, which reflects both Lambert and Mekenas-Parga 16 participated in the execution of the warrant. (Defs.’ Mot., Ex. D at 8; Ex. G at 95.) 17 Contrary to Defendants’ argument, they are not entitled to qualified immunity from this 18 claim. See Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir. 2003) (“The officers 19 violated a clearly established constitutional right of which reasonable persons would have 20 known—a right to be free of seizures beyond the scope of a warrant, in the absence of an 21 exception to the warrant requirement such as the plain view doctrine.”); Demuth v. 22 Fletcher, No. 08-5093 (JRT/LIB), 2011 U.S. Dist. LEXIS 34638, at *32-36 (D. Minn. 23 March 31, 2011) (denying qualified immunity on Fourth Amendment claim where “[t]he 24 most cursory review of the materials would have revealed the inappropriateness of seizing 25 them. 26 defendants went beyond their scope and seized materials that had not been enumerated, 27 which a reasonable officer would not have seized.”) Rather, in light of the above, the 28 Court grants Plaintiffs’ motion for summary judgment on this claim. A reasonable fact-finder could conclude that when executing the warrant, 22 15-cv-1583-DMS (WVG) 1 E. Wrongful Detention of Seized Property 2 The next claim is that Defendant Lambert wrongfully detained Plaintiffs’ illegally 3 seized property in violation of the Fourth Amendment. As with the third claim for relief, 4 both Plaintiffs and Defendants move for summary judgment on this claim. 5 As an initial matter, Defendants request that the Court dismiss this claim because 6 it is not legally viable. (Defs.’ Opp’n to Pls.’ Mot. at 11.) They contend that to the extent 7 Defendant Lambert’s detention of Plaintiffs’ property was wrongful, Plaintiffs’ claim 8 arises under the Due Process Clause rather than the Fourth Amendment. Although there 9 is case law to support Defendants’ argument, see Fox v. Van Oosterum, 176 F.3d 342, 10 351 (6th Cir. 1999) (“the Fourth Amendment protects an individual’s interest in retaining 11 possession of property but not the interest in regaining possession of property.”), there is 12 also case law from the Ninth Circuit to support Plaintiffs’ claim under the Fourth 13 Amendment. See Tamura, 694 F.2d at 597 (“The Government’s unnecessary delay in 14 returning the master volumes appears to be an unreasonable and therefore 15 unconstitutional manner of executing the warrant.”) 16 Defendants’ invitation to dismiss this claim as improperly pleaded. Therefore, the Court declines 17 As this claim is pleaded under the Fourth Amendment, and according to the 18 language in Tamura, resolution of this claim will depend on whether Defendant 19 Lambert’s detention of Plaintiffs’ property was reasonable. 20 Defendants provide the Court with any guidance on how that issue is to be determined, 21 but it would appear to involve “a careful balancing of the nature and quality of the 22 intrusion on the individual’s Fourth Amendment interests against the countervailing 23 governmental interests at stake.” Forrester v. City of San Diego, 25 F.3d 804, 806 (9th 24 Cir. 1994). See also San Jose Charter of the Hells Angels Motorcycle Club v. City of San 25 Jose, 402 F.3d 962, 971 (9th Cir. 2005) (quoting Berger v. New York, 388 U.S. 41, 70 26 (1967) (Stewart, J., concurring)) (“‘the standard of reasonableness embodied in the Fourth 27 Amendment demands that the showing of justification match the degree of intrusion.’”) 28 In this case, neither side engages in a thorough analysis of this balancing test. Rather, Neither Plaintiffs nor 23 15-cv-1583-DMS (WVG) 1 each argues in a more general fashion that the facts support judgment in their favor. 2 Taking the facts in the light most favorable to the non-moving party, however, a 3 reasonable jury could find for either side. One of the disputed facts, for example, is 4 whether it was reasonable to retain the property for the period in question when the 5 District Attorney’s Office was considering whether to charge the case. Thus, neither 6 Plaintiffs nor Defendants are entitled to summary judgment on this claim. 7 F. Wrongful Death 8 The next claim is for wrongful death against Defendant Lambert. In the Third 9 Amended Complaint, Plaintiffs allege Lambert knew Kevin Brown “was deeply 10 depressed and in danger of committing suicide” after he was accused of being involved 11 in the death of Claire Hough. (TAC ¶¶ 288-91.) Plaintiffs allege Lambert “elected to 12 increase” the stress on Brown, and decided he would refuse to return the property seized 13 from Plaintiffs’ home “despite repeated requests to return the wrongfully seized items in 14 order to create the highest possible level of stress on Kevin Brown.” (Id. ¶ 299.) Plaintiffs 15 allege “Lambert acted with knowledge that his refusal to return the seized property … 16 created a high risk that Kevin Brown would commit suicide, and that Kevin’s suicide was 17 a foreseeable result of his continued refusal to return the seized property.” (Id. ¶ 300.) 18 Defendants are the only parties moving for summary judgment on this claim. They 19 argue Plaintiffs’ claim actually sounds in negligence, which is insufficient to support a 20 claim under § 1983. 21 constitutional rights, and even if there was, Plaintiffs cannot establish any alleged 22 violation caused Kevin Brown’s death. Finally, Defendants claim they are entitled to 23 qualified immunity. They also assert there was no violation of Kevin Brown’s 24 Although causation is an element of Plaintiffs’ wrongful death claim, the claim is 25 clearly pleaded as a § 1983 claim, not a claim for negligence. Thus, Defendants’ first 26 argument does not warrant judgment in their favor. 27 Defendants’ second argument also fails to show Defendants are entitled to 28 judgment as a matter of law. This argument goes to the first element of Plaintiffs’ 24 15-cv-1583-DMS (WVG) 1 wrongful death claim, which requires Plaintiffs to prove there was a violation of their 2 constitutional rights. See Montano v. Orange Cnty., Tex., 842 F.3d 865, 882 (5th Cir. 3 2015) (quoting Phillips ex rel. Phillips v. Monroe Cty., Miss., 311 F.3d 369, 374 (5th Cir. 4 2002)) (“‘[A] plaintiff seeking to recover on a wrongful death claim under § 1983 must 5 prove both the alleged constitutional deprivation required by § 1983 and the causal link 6 between the defendant’s unconstitutional acts or omissions and the death of the victim, as 7 required by the state’s wrongful death statute.’”) Although Defendants argue there was 8 no violation of Plaintiffs’ constitutional rights, the above discussion with respect to 9 Plaintiffs’ third claim for seizure beyond the scope of the warrant refutes that argument. 10 The presence of genuine issues of material fact on the Franks claim, the second claim for 11 an overbroad warrant and the fourth claim for wrongful retention of illegally seized 12 property also leaves open the possibility that the jury will find other constitutional 13 violations. Thus, Defendants are not entitled to summary judgment on the ground there 14 was no constitutional violation here. 15 Defendants’ third argument focuses on the element of causation. “To meet this 16 causation requirement, the plaintiff must establish both causation-in-fact and proximate 17 causation.” 18 Causation-in-fact is a factual determination, and proximate cause presents a mixed 19 question of law and fact. Id. n.13. Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) 20 Here, Defendants argue there is no evidence of proximate cause. (Mem. of P. & 21 A. in Supp. of Defs.’ Mot. at 23.) However, Rebecca Brown testified her husband was 22 not suicidal before he became a target of the investigation into Claire Hough’s murder. 23 (Pls.’ Opp’n to Defs.’ Mot., Ex. 32 at 62.) She also testified he became suicidal after that 24 time. (Id.) Rebecca Brown also testified she told Defendant Lambert she “was worried 25 that maybe her husband would kill himself” after she found him “groggy” in bed with a 26 bullet on the floor next to the bed and a handwritten note he had penned to her. (Id. at 27 62-63, 67-68.) Blakely, Rebecca’s brother, also testified he twice informed Defendant 28 Lambert he removed all the firearms from the Browns’ home because “it was clear to 25 15-cv-1583-DMS (WVG) 1 [him] that something bad was happening” with Kevin and Rebecca Brown. (Defs.’ Mot., 2 Ex. Q at 16.) Construed in Plaintiffs’ favor, this evidence raises a genuine issue of 3 material fact on the element of causation. 4 Defendants raise another argument on the element of causation, namely that 5 Brown’s suicide was an intervening, superseding cause of Plaintiffs’ injury such that 6 Defendant Lambert cannot be held liable for wrongful death. However, in Castro v. 7 County of Los Angeles, 797 F.3d 654 (9th Cir. 2015), cert. denied, 137 S.Ct. 831 (2017), 8 the Ninth Circuit stated “[a] corrections officer will be held legally responsible for an 9 inmate’s injuries if the officer’s actions are a ‘moving force’ behind a series of events that 10 ultimately lead to a foreseeable harm, even if other intervening causes contributed to the 11 harm.” Id. at 667 (citing Conn v. City of Reno, 591 F.3d 1081, 1100 (9th Cir. 2010)) 12 (emphasis added). The court added, “[i]f reasonable persons could differ over the 13 question of foreseeability, that issue should be left to the jury.” Id. (citing Conn, 591 F.3d 14 at 1100). Here, there are numerous triable issues of material fact on the element of 15 causation, which preclude entry of summary judgment. 16 Defendant’s final argument on the wrongful death claim is Defendant Lambert is 17 entitled to qualified immunity. Specifically, Defendants argue the right allegedly violated 18 here was not clearly established. According to Defendants, that right was the “right to be 19 free from investigation[.]” (Mem. of P. & A. in Supp. of Defs.’ Mot. at 21.) However, 20 that misstates the issue. The rights at issue here do not include the “right to be free from 21 investigation.” Indeed, Plaintiffs agree there is no such right. Rather, the rights at issue 22 here are Plaintiffs’ rights under the Fourth Amendment, and with respect to those rights, 23 “[t]he law regarding the permissible scope of a search where items in a warrant have been 24 particularly described is hardly an uncertain and evolving area of the law.” Creamer v. 25 Porter, 754 F.2d 1311, 1319 (5th Cir. 1985). See also Ellertson v. City of Mesa, No. CV- 26 15-00765-PHX-GMS, 2016 U.S. Dist. LEXIS 2366, at *11-12 (D. Ariz. Jan. 8, 2016). 27 (“The scope of the right to search and seize property was defined by the warrant and 28 exceeding that scope violates the clearly established rights of the Plaintiffs. This principle 26 15-cv-1583-DMS (WVG) 1 has been long established.”). The same may be said of the rights at issue in Plaintiffs’ 2 first claim. Bettin v. Maricopa County, No. CIV 04-02980 PHX MEA, 2007 U.S. Dist. 3 LEXIS 42979, at *54 (D. Ariz. 2007) (“An officer who prepares a plainly invalid warrant 4 that a reasonably competent officer should know was deficient is not entitled to immunity, 5 despite the approval of the warrant by a magistrate.”) Thus, Defendants are not entitled 6 to qualified immunity from Plaintiffs’ wrongful death claim. 14 7 III. 8 CONCLUSION 9 For these reasons, Defendants’ motion for summary judgment is denied and 10 Plaintiffs’ motion for partial summary judgment is granted in part and denied in part. 11 Specifically, the Court grants Plaintiffs’ motion on the third claim and denies the motion 12 on the fourth claim. 13 14 IT IS SO ORDERED. Dated: May 25, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ request for summary judgment on Plaintiffs’ sixth claim for deprivation of First and Fifth Amendment rights to intimate familial association is based on the same arguments presented on Plaintiffs’ fifth claim. For the reasons set out above, the Court rejects those arguments as against the sixth claim, as well. 14 27 15-cv-1583-DMS (WVG)

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