Charles Allen, et al vs Gregory Damm, et al
Filing
399
ORDER that 350 Defendants' Motion for Summary Judgment is GRANTED. FURTHER ORDERED that 369 Motion to Dismiss or, in the Alternative, for Summary Judgment is GRANTED in part and DENIED without prejudice in part. Plaintiff Robert Kahre' ;s First Amendment Retaliation Claim and Fourth Amendment Unlawful and Unreasonable Detention Claims are DISMISSED. Defendants are entitled to judgment on Plaintiffs Lori Kahre and Lee Belcher's illegal search, unlawful detention, property destr uction, and excessive force claims. Defendant Crowther, Plaintiff Lori Kahre, and Plaintiff Lee Belcher are DISMISSED from the case. FURTHER ORDERED that 336 Defendant's Motion to Strike is DENIED AS MOOT. Signed by Judge David A. Ezra on 8/9/13. (Copies have been distributed pursuant to the NEF - MMM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CHARLES ALLEN, et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA, et
al.,
Defendants.
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CV. NO. 03-01358-DAE-RJJ
ORDER: 1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; 2) GRANTING IN PART AND DENYING WITHOUT
PREJUDICE IN PART DEFENDANTS’ MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT; AND 3) DENYING AS
MOOT DEFENDANTS’ MOTION TO STRIKE
On July 24, 2013, the Court heard Defendants’ Motion for Summary
Judgment Regarding the Remaining Claim of Plaintiffs Lori Kahre and Lee
Belcher (doc. # 350); Defendants’ Motion to Dismiss or, in the Alternative, for
Summary Judgment (doc. # 369); and Defendants’ Motion to Strike (doc. # 336).
Lisa A. Rasmussen, Esq., appeared at the hearing on behalf of Plaintiff Robert
Kahre; E. Brent Bryson appeared at the hearing on behalf of Plaintiffs Lori Kahre
and Lee Belcher; and Charles M. Duffy, Esq., appeared at the hearing on behalf of
Defendants. After reviewing the Motions and the supporting and opposing
memoranda, the Court GRANTS the Motion for Summary Judgment, GRANTS
1
IN PART and DENIES WITHOUT PREJUDICE IN PART the Motion to
Dismiss or, in the Alternative, for Summary Judgment, and DENIES AS MOOT
the Motion to Strike.
BACKGROUND
I.
Factual Allegations
Plaintiffs describe themselves as a group of individuals boycotting the
Federal Reserve System by using gold and silver coins manufactured by the United
States mint as a medium of exchange, “thereby avoiding income taxes based on the
exchange rate between gold and silver dollars and Federal Reserve Notes
denominated as if they were dollars.” (“SAC,” Doc. # 104 at 3.) Plaintiffs filed
suit against an Assistant United States Attorney in the Department of Justice
(“DOJ”), Special Agents of the Internal Revenue Service (“IRS”), federal strike
force/SWAT team members, and North Las Vegas Police Department (NLVPD)
officers, alleging numerous constitutional violations. (Id. ¶¶ 3–20.) Plaintiff’s
allegations arise primarily out of searches conducted by Defendants at three
locations in Las Vegas, Nevada on May 29, 2003. Specifically, the Second
Amended Complaint (“SAC”) alleges that Defendants retaliated against Plaintiffs
for engaging in protected First Amendment activity (id. ¶¶ 21–27); used excessive
force, unreasonably detained Plaintiffs, and engaged in the unnecessary destruction
of property and other misconduct in the execution of search warrants, in violation
2
of the Fourth Amendment (id. ¶¶ 27–39); violated Plaintiffs’ Fifth and Fourteenth
Amendment right to due process and freedom from compelled self-incrimination
by using grand jury proceedings to elicit evidence for use in civil tax cases (id.
¶¶ 62–65), utilizing warrant-less arrests and excessive force to coerce bystanders to
submit to interrogations (id. ¶¶ 66–71), and failing to serve search warrants to
lawful tenants of property being searched (id. at ¶¶ 72–74); and, finally, conspired
to violate Plaintiffs’ First and Fourth Amendment rights (id. ¶¶ 75–77). After
years of litigation and several dispositive motions, some plaintiffs have been
dismissed from the proceedings, some have chosen not to proceed with this
litigation, and many of the remaining plaintiffs’ claims have been disposed of.
II.
Procedural History
On October 30, 2003, Plaintiffs filed their first complaint seeking
injunctive relief against the United States and damages against unknown individual
federal employees and State of Nevada employees pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents (“Bivens”), 403 U.S. 388 (1971) and 42 U.S.C.
§ 1983 as well as Nevada state law. (Doc. # 1.) On February 18, 2004, the
Defendants filed Motions to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and (6) or, in the alternative, for Summary Judgment (“2004 Motions”).
(Docs. ## 20–21.) On August 12, 2004, Plaintiffs filed their First Amended
Complaint. (Doc. # 53.) On October 4, 2004, United States District Judge Philip
3
M. Pro granted in part and denied in part Defendants’ 2004 Motions. (“Pro
Order,” Doc. # 56.)
In his Order, Judge Pro found that under Ninth Circuit precedent, “no
Bivens action may lie for any alleged constitutional violation stemming from the
assessment and collection efforts of IRS agents whenever there [are] meaningful
and adequate protections available to the plaintiff” under the Tax Equity and Fiscal
Responsibility Act of 1982 (“TEFRA”). (Pro Order at 9.) Accordingly, he
dismissed all claims against IRS agents regarding alleged violations of First
Amendment rights and claims regarding the seizure of Robert Kahre’s gold, silver
and other currency to satisfy unpaid federal tax obligations. (Id. at 11, 23.) Judge
Pro found that Robert Kahre was not present when the challenged search warrants
were executed and thus did not have standing to challenge the defendants’ failure
to knock and announce and to present the warrant. (Id. at 10–11.) Judge Pro also
dismissed Robert Kahre’s claims regarding the sufficiency of the search warrant,
all claims arising from alleged violations of the Fifth Amendment protection
against self-incrimination, and claims against Assistant United States Attorney
(“AUSA”) Gregory Damm (“Damm”) relating to the drafting of the search warrant
application and supporting affidavit. (Id. at 24.) Judge Pro denied the Defendants
qualified immunity with respect to certain plaintiffs’ claims for unreasonable
detention and excessive force relating to a search at 6270 Kimberly Avenue, and
4
Plaintiff Lori Kahre’s allegations that the defendants unlawfully entered her
residence and detained her. (Id. at 16, 19.) Judge Pro found that Defendant Damm
was not entitled to absolute immunity with respect to allegations that he planned
every aspect of an unlawful raid, and denied Defendant IRS Agent Jared Halper
(“Halper”) qualified immunity on Robert Kahre’s unlawful arrest claim. (Id. at
20–21, 24.)
Plaintiffs filed their Second Amended Complaint on November 14,
2005. (SAC.) The SAC named the following defendants: AUSA Damm; IRS
Agents Halper, Mercedes Manzur, and Dennis Crowther (“Crowther”); and
officers with the NLVPD. In an Order dated May 22, 2006, the Court concluded
that Plaintiffs’ claims against the NLVPD officers were barred by the statute of
limitations, and therefore dismissed the state defendants from the lawsuit. (Doc.
# 142.)
On April 5, 2005, a federal grand jury returned an indictment against
the majority of the Plaintiffs for charges relating to tax evasion. (Cr. 2:05–CR–
00121–DAE–RJJ, Doc. # 1.) On July 12, 2005, the Court stayed discovery
proceedings pending resolution of the criminal cases against eleven of the
Plaintiffs in the instant action. (Doc. # 99.) On November 14, 2005, Plaintiffs
filed a Second Amended Complaint. (SAC.) On August 29, 2006, the Court
refused to grant Plaintiffs leave to file a third amended complaint. (Doc. # 154.)
5
On February 23, 2007, Plaintiff Robert Kahre commenced another lawsuit against
many of the same Defendants in the instant case, alleging numerous Racketeer
Influenced and Corrupt Organizations (RICO) violations.2 (See Cv. 2:07–CV–
00231–DAE–RJJ.)
In 2009, three of the remaining Plaintiffs were adjudged guilty in their
criminal cases. (See Cr. 2:05–CR–00121–RCJ–RJJ.) Specifically, John Kahre
pleaded guilty to five counts of willfully attempting to evade and defeat tax (see
Cr. 2:05–CR–00121–RCJ–RJJ, Docs. ## 605, 2614); Robert Kahre was found
guilty of multiple counts of conspiracy to defraud, willfully failing to collect and
pay over tax, attempting to interfere with the administration of the Internal
Revenue law, attempting to evade and defeat tax, and wire fraud (see Cr. 2:05–
CR–00121–RCJ–RJJ, Docs. ## 1671, 2615); and Lori Kahre was found guilty of
multiple counts of conspiracy to defraud, attempting to interfere with the
administration of the Internal Revenue law, making a false statement to a bank and
attempting to evade and defeat tax (see Cr. 2:05–CR–00121–RCJ–RJJ, Docs.
## 1671, 2623).
The Court sua sponte lifted the stay in these proceedings on
September 7, 2010. (Doc. # 225.) Only three Plaintiffs elected to proceed: Robert
2
This Court ultimately dismissed the myriad claims in that suit (Cv. 2:07–CV–
00231–DAE–RJJ, Doc. # 95), and was affirmed on appeal by the Ninth Circuit
(Cv. 2:07–CV–00231–DAE–RJJ, Doc. # 107).
6
Kahre, Lori Kahre, and Lee Belcher (“Belcher”). (Doc. # 300 at 19.) On
November 15, 2010, the Defendants filed a Motion to Dismiss or, in the
Alternative, for Summary Judgment (“Defendants’ 2010 Motion”). (Doc. # 254.)
In its Order addressing Defendants’ 2010 Motion, the Court identified five
categories of claims that had not been dismissed in the Pro Order granting in part
and denying in part Defendants’ 2004 Motions:
1.
2.
3.
4.
5.
Plaintiffs’ claims for unreasonable detention arising from the execution
of a search warrant at Kimberly Avenue;
Plaintiffs’ claims of excessive force by federal agents during the
execution of a search warrant at Kimberly Avenue;
Plaintiff Robert Kahre’s claim for unlawful arrest against Defendant
Halper;
Plaintiffs’ claims against Defendant Damm for the alleged planning of
unlawful raids;
Plaintiff Lori Kahre’s claim of unreasonable search and seizure.
(Doc. # 300 at 20.)
The Court determined that Defendants were entitled to summary
judgment with respect to the alleged misconduct at Kimberly Avenue, thus
disposing of the unreasonable detention and excessive force claims stemming from
the execution of the search warrant at that location. (Id.) The Court noted that
none of the remaining plaintiffs, including Robert Kahre, were present at Kimberly
Avenue when the alleged misconduct took place, and thus “[did] not have standing
to seek redress for constitutional injuries that other individuals sustained there.”
(Id. at 21–22.) The Court denied Defendants’ 2010 Motion with respect to Robert
7
Kahre’s unlawful arrest claim, Lori Kahre’s claim that federal agents unlawfully
searched her residence, and the claim that AUSA Damm planned unlawful raids.
(Id. at 23, 28.) The Court found that Plaintiffs were entitled to a continuance for
purposes of conducting further discovery as to those claims. (Id. at 28.)
The Defendants then filed a Motion for Partial Summary Judgment as
to Robert Kahre's wrongful arrest claim on September 29, 2011. (Doc. # 301.) On
April 24, 2012, after a hearing on the Motion, the Court issued an Order Granting
Defendants’ Motion for Partial Summary Judgment, thereby disposing of Robert
Kahre’s wrongful arrest claim. (Doc. # 319.) On May 25, 2012, Robert Kahre
filed a Motion for Reconsideration of this Court’s April 24, 2012 Order. (Doc.
# 325.) On November 13, 2012, the Court denied the Motion for Reconsideration.
(Doc. # 354.)
On May 21, 2012, Defendants moved to dismiss Plaintiff Robert
Kahre and Defendant Halper from the case on the ground that Robert Kahre’s last
remaining claim—the wrongful arrest claim, which was also the last claim against
Halper—was disposed of by the Court’s Order Granting Defendants’ Motion for
Partial Summary Judgment (doc. # 319). (Doc. # 321.) Robert Kahre contended
that he has live claims remaining in the case, including Fourth and Fifth
Amendment claims for destruction of property and a claim that Defendant Damm
planned unlawful raids in retaliation for Plaintiffs’ protected First Amendment
8
activity. (Doc. # 328.) The Court denied Defendants’ Motion, concluding that
Robert Kahre’s claim against Defendant Damm for planning unlawful raids
appears to still be live. (Doc. # 363.) Observing that the SAC is lengthy and
contains numerous claims and noting the long and complicated history of this
litigation, the Court instructed Robert Kahre to submit a list of claims he still
wishes to pursue and believes survive the Court’s prior rulings. (Id. at 13.) On
December 26, 2012, Robert Kahre complied, submitting a Notice of Remaining
Claims. (Doc. # 366.) The Notice stated that Robert Kahre believes the following
claims remain live:
1.
2.
3.
4.
A First Amendment retaliation claim against Defendant Damm;
Fourth and Fifth Amendment destruction of property claims;
Fourth Amendment unlawful and unreasonable detention claims;
Fourth and Fifth Amendment claims against Defendants Damm and
Halper for planning an unlawful raid.
(Doc. # 366 at 11–13.)
On November 6, 2012, Defendants filed a Motion for Summary
Judgment Regarding the Remaining Claim of Plaintiffs Lori Kahre and Lee
Belcher (doc. # 350), and on January 25, 2013, Defendants filed a Motion to
Dismiss All Remaining Claims or, in the Alternative, for Summary Judgment, in
response to Robert Kahre’s Notice of Remaining Claims (doc. # 369). These two
motions are currently before the Court. On February 11, 2013, Robert Kahre filed
a response in opposition to Defendants’ January 25, 2013 motion (doc. # 380), and
9
on February 28, 2013, Defendants filed a reply (doc. # 386). On June 18, 2013, the
attorney for Lori Kahre and Lee Belcher filed a Motion to Withdraw as Counsel,
which stated that he had just learned about Defendant’s November 6, 2012 Motion
for Summary Judgment and wished to withdraw as counsel. (Doc. # 392.) The
Court denied the Motion to Withdraw but granted Counsel an extension of time to
file a response in opposition to the Motion for Summary Judgment. (Doc. # 394.)
On July 4, 2013, a response was filed (doc. # 395), and on July 12, 2013,
Defendants filed a reply in further support of their Motion for Summary Judgment
(doc. # 396).
LEGAL STANDARD
I.
Rule 12(b)(6) Motion to Dismiss
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“Rule”), a motion to dismiss will be granted where the plaintiff fails to state a
claim upon which relief can be granted. Review is limited to the contents of the
complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.
1994). A complaint may be dismissed as a matter of law for one of two reasons:
“(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable
legal claim.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.
1984) (citation omitted). Allegations of fact in the complaint must be taken as true
10
and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd.
v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
In providing grounds for relief, however, a plaintiff must do more than recite the
formulaic elements of a cause of action. See id. at 556–57; see also McGlinchy v.
Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (“[C]onclusory allegations
without more are insufficient to defeat a motion to dismiss for failure to state a
claim.”) (citation omitted). “The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,” and
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
and citations omitted). Thus, “bare assertions amounting to nothing more than a
formulaic recitation of the elements” of a claim “are not entitled to an assumption
of truth.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[T]he
non-conclusory factual content, and reasonable inferences from that content, must
be plausibly suggestive of a claim entitling the plaintiff to relief.”) (internal
quotation marks and citation omitted).
A court looks at whether the facts in the complaint sufficiently state a
“plausible” ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must
11
include enough facts to raise a reasonable expectation that discovery will reveal
evidence and may not just provide a speculation of a right to relief. Id. at 586.
When a complaint fails to adequately state a claim, such deficiency should be
“exposed at the point of minimum expenditure of time and money by the parties
and the court.” Id. at 558 (citation omitted). If a court dismisses the complaint or
portions thereof, it must consider whether to grant leave to amend. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be
granted “if it appears at all possible that the plaintiff can correct the defect”
(internal quotations and citations omitted)).
II.
Motion for Summary Judgment
Summary judgment is granted under Federal Rule of Civil Procedure
56 when “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary
judgment is to dispose of factually unsupported claims and defenses. Celotex
Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
Summary judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element at trial. See id. at
12
323. A moving party without the ultimate burden of persuasion at trial—usually,
but not always, the defendant—has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment. Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls upon the moving party to identify for the court those “portions of the
materials on file that it believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323).
Once the moving party has carried its burden under Rule 56, the
nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial” and may not rely on the mere allegations in the pleadings. Porter,
419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). In setting forth “specific facts,” the nonmoving party may not meet its
burden on a summary judgment motion by making general references to evidence
without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003). “[A]t least some ‘significant probative evidence’” must be
produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence
that is merely colorable or not significantly probative does not present a genuine
issue of material fact.” Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has
13
“refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d
1477, 1481 (9th Cir. 1996)). “Conclusory allegations unsupported by factual data
cannot defeat summary judgment.” Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d
1074, 1078 (9th Cir. 2003).
When “direct evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge
must assume the truth of the evidence set forth by the nonmoving party with
respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence
and inferences must be construed in the light most favorable to the nonmoving
party. Porter, 419 F.3d at 891. The court does not make credibility determinations
or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson
v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (“[C]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.”) (citations omitted). However, inferences
may be drawn from underlying facts not in dispute, as well as from disputed facts
that the judge is required to resolve in favor of the nonmoving party. T.W. Elec.
Serv., 809 F.2d at 631.
14
DISCUSSION
I.
Defendants’ Motion to Dismiss all Remaining Claims or, in the Alternative,
for Summary Judgment
Defendants seek dismissal of or, in the alternative, summary judgment
on each of the claims Robert Kahre listed in his Notice of Remaining Claims (doc.
# 366). (Doc. # 369.) The Court notes, at the outset, that its attempts to resolve
the remaining issues in this case have been stymied by the lack of clarity and
reasoned argument in the parties’ briefing. The Defendants, in particular, seem
disinclined to rely on the law to resolve Robert Kahre’s remaining claims, instead
citing primarily to rulings issued in the related criminal case, Cr. 2:05–CR–00121–
DAE–RJJ, and prior rulings in this case, often taken out of context or
misinterpreted.1 The Defendants thereby shift the burden of sifting through the
many arguments they have made in prior filings in both this case and Robert
Kahre’s criminal case to the Court. With that said, the Court will assess the
viability of the four claims Defendants seek to dismiss or obtain judgment on.
1
For example, Defendants insist that Judge Pro’s October 4, 2004 Order must have
disposed of Robert Kahre’s property destruction claims because it referred to the
alleged destruction. (Doc. # 369 Ex. 1 at 8.) Judge Pro’s October 4, 2004 Order
referred to the property destruction in the “Background” section of Order, a section
devoted to summarizing the Plaintiffs’ factual allegations. (Pro Order at 3.) To
suggest that such a reference disposed of Robert Kahre’s property destruction
claim on its merits is at best wishful thinking.
15
A.
First Amendment Retaliation Claim
The SAC asserts that Defendants retaliated against Robert Kahre “for
exercise of his clearly established First Amendment right to associate with his coplaintiffs to boycott the Federal Reserve and criticize the monetary, taxing and
fiscal policies of the United States.” (SAC ¶ 510(A).) The SAC alleges that
“defendants’ military-style assault, unnecessary property destruction, excessive
force, unlawful detentions, . . . [and] warrantless searches and seizures,” among
other things, were all designed “at least partially to retaliate against plaintiffs to
punish them for and inhibit future activities protected by the First Amendment.”
(SAC ¶ 25.) Judge Pro’s October 4, 2004 Order dismissed Plaintiffs’ First
Amendment retaliation claims against all IRS Agent defendants. (Pro Order at 9.)
Accordingly, Robert Kahre’s First Amendment claim survives only insofar as it is
asserted against Defendant Damm.
Defendants argue that the SAC’s allegations do not satisfy the
heightened pleading standard adhered to by the Ninth Circuit when the defendant’s
subjective intent is an element of the plaintiff’s constitutional tort. (See Doc. # 369
at 5 (quoting Foster v. Skinner, 70 F.3d 1038, 1044 n.7 (9th Cir. 1995)).) This
heightened standard requires plaintiffs to “state in their complaint nonconclusory
allegations setting forth evidence of unlawful intent.” Mendocino Envtl. Ctr. v.
Mendocino Cnty., 14 F.3d 457, 464 (9th Cir. 1994). A person aggrieved by
16
governmental action “designed to retaliate against and chill political expression”
may “‘sue the responsible’ officers.” Id. (quoting Gibson v. United States, 781
F.3d 1334, 1338 (9th Cir. 1986)). “[P]laintiffs may not recover merely on the basis
of a speculative ‘chill’ due to generalized and legitimate law enforcement
initiatives,” but may recover if they allege “discrete acts of police surveillance and
intimidation directed solely at silencing them.” Gibson, 781 F.3d at 1338 (internal
citation omitted). Because the defendant’s intent to silence the plaintiff and chill
his political expression is an element of the claim, the heightened pleading
standard applies to First Amendment retaliation claims. Mendocino, 14 F.3d at
464.
Here, the Court concludes that the SAC does not meet the heightened
pleading standard. It conclusorily alleges that Damm “advised, directed,
conspired, combined, confederated and agreed” with every other defendant to
violate the Plaintiffs’ constitutional rights, “at least partially to retaliate against
plaintiffs to punish them for and inhibit future activities protected by the First
Amendment.” (SAC ¶¶ 3, 25.) However, it alleges no facts that would support an
inference that Damm intended to chill Plaintiff’s speech. Moreover, even Plaintiffs
appear to concede that the alleged constitutional violations committed by Damm
and his co-conspirators were designed only in part to retaliate against Plaintiffs.
(SAC ¶ 25 (asserting that Defendants’ actions were “at least partially to retaliate
17
against plaintiffs”).) This is contrary to the Ninth Circuit’s directive that plaintiffs
may recover for governmental action “directed solely at silencing them.” Gibson,
781 F.3d at 1338.
In his response in opposition to the instant Motion, Robert Kahre does
not address Defendants’ argument that the SAC fails to satisfy the heightened
pleading standard. However, Robert Kahre cites to evidence submitted in support
of his response and asserts that the evidence establishes: (1) that Defendants
Halper and Damm were aware of his views regarding the use of gold and silver
coins to avoid income taxes prior to the events of May 29, 2003; and (2) that the
Defendants planned the searches and arrest that occurred on May 29, 2003 based
on their awareness of those views. (Doc. # 380 at 12–14.) Plaintiff maintains that,
based on this evidence, “[t]here can be no doubt that the federal defendants’ raid
was designed to attack and chill Mr. Kahre’s belief in use of the gold and silver
coinage as legal tender at its dollar denominated face value.” (Id. at 12.) In other
words, Plaintiff appears to be arguing that because he believed that neither he nor
his employees had to pay income taxes if they used gold and silver coins as a
medium of exchange, any action Defendants took to curb Plaintiff’s practice of
avoiding income taxes was unlawful, because it chilled his ability to espouse his
beliefs by practicing them. This argument is meritless; criminal activity does not
constitute protected expression merely because it stems from beliefs firmly and
18
even sincerely held. “[S]peech is not protected by the First Amendment when it is
the very vehicle of the crime itself.” United States v. Rowlee, 899 F.3d 1275, 1278
(2d Cir. 1990) (quoting United States v. Varani, 435 F.2d 758, 762 (6th Cir.
1970)).
For the reasons discussed above, the Court concludes that the SAC
fails to state a First Amendment retaliation claim against Defendant Damm.
Accordingly, that claim is DISMISSED.
B.
Fourth and Fifth Amendment Destruction and Deprivation of Property
Claims
In the SAC, Robert Kahre claims damages for alleged violations of his
“Fourth Amendment right to be free from illegal searches and seizures of his
person, property, and business premises.” (SAC ¶ 510(E).) The SAC alleges that
during the execution of the search warrant at Kimberly Avenue on May 29, 2003,
an armored personnel carrier crashed through a closed, but unlocked, chain link
gate and slammed into the rear of two trucks parked outside the building. (SAC
¶ 97.) No attempt had been made to open the gate without force. (Id.) The SAC
alleges that during the same search, officers destroyed surveillance cameras
mounted on the interior and exterior walls of the 6270 Kimberly Avenue building.
(Id. ¶ 98.) The SAC further alleges that during the search of 6270 Kimberly
Avenue, officers forced open a file cabinet with a crow bar and destroyed a lock19
box in a similar fashion, despite both having been left unlocked to avoid damage.
(Id. ¶ 145–146.)
Robert Kahre also claims that he was deprived of his property without
due process of law in violation of the Fifth Amendment. (SAC ¶ 510(F).)
Specifically, the SAC alleges that officers seized $160,000 in cash; 95 Gold Eagle
Coins; 490 Silver Eagle Coins; 3 silver bars; and 25 boxes of pennies from 6270
Kimberly Avenue, and 210 Silver Eagle Coins from 6295 N. Grand Canyon Drive,
despite the fact that seizure of these items was not authorized by any warrant. (Id.
¶¶ 472–473.) According to the SAC, these items were not included on the
inventory listing of all items seized. (Id. ¶ 471.) The SAC also alleges that Robert
Kahre received “Receipts for Payment of Taxes” from the IRS in the sum of
$230,913.00 and $154.245.00 after the property was seized. (SAC ¶¶ 475, 477.)
Defendants assert that they are entitled to dismissal of or judgment on
Robert Kahre’s Fourth and Fifth Amendment claims for destruction and
deprivation of his property for a number of reasons. First, Defendants argue that
Judge Pro’s October 4, 2004 Order disposed of Robert Kahre’s Fifth Amendment
claim, holding as it did that any claims arising from the assessment and collection
of taxes must be brought pursuant to the statutory remedies provided for by
Congress, not in a Bivens action. (Pro Order at 11.) In response, Plaintiff
contends that this portion of the October 4, 2004 Order addressed his Fourth
20
Amendment claims stemming from the alleged illegal seizure of the property, not
his Fifth Amendment due process claims. (Doc. # 380 at 18.) Furthermore,
Plaintiff argues, his Fifth Amendment claim does not arise from the assessment
and collection of taxes; in fact, the crux of the claim, according to Plaintiff, is that
the money seized was not applied to his taxes, as evidenced by the discrepancy
between the amount seized and the amount cited on the “Receipts for Payment of
Taxes.” (Id.) In other words, Plaintiff is not challenging the way in which the
property was seized, or the fact that he had no opportunity to object to the seizure,
but rather the fact that it was essentially stolen from him.
The Court agrees with Plaintiff that Judge Pro’s October 4, 2004
Order explicitly dismissed only Robert Kahre’s Fourth Amendment claims arising
from the allegedly illegal seizure of currency. Judge Pro’s reason for dismissing
the Fourth Amendment claims—namely, that Bivens relief is not available for
challenges to IRS tax assessment and collection activities pursuant to Adams v.
Johnson, 355 F.3d 1179, 1181 (9th Cir. 2004)—would apply equally to Plaintiff’s
due process claims, if the claims were asserted against IRS Agents and arose from
the assessment and collection of taxes. However, if—as Plaintiff asserts in his
response to the instant Motion—the SAC states a due process claim based not on
the IRS’s seizure of currency for payment of taxes, but rather on the outright theft
21
of currency by the IRS, FBI, or local law enforcement, the Court is less certain that
Adams would bar such a claim.
The Court must, then, determine whether the SAC contains such a
claim. Robert Kahre maintains that Paragraphs 471 through 477 of the SAC allege
that his money was stolen during the search of 6270 Kimberly Avenue and 6295 N.
Grand Canyon Drive and was never accounted for by the IRS. (Doc. # 380 at 18
n.67.) Nowhere among those provisions of the SAC does Robert Kahre explicitly
allege that his money was stolen. A person familiar with the value of Gold and
Silver Eagle Coins and Silver Bars might be able to glean from the SAC that there
was a discrepancy between the amount seized and the amount applied to Robert
Kahre’s unpaid taxes, but to the uninitiated, Paragraphs 471 through 477 of the
SAC appear to allege only that the seizure of Robert Kahre’s cash and coinage was
unlawful because it was not authorized by a warrant. (See SAC ¶¶ 473, 474.) The
Court concludes that the SAC simply does not state a Fifth Amendment due
process claim based on the theft of Robert Kahre’s money against the remaining
defendants. That claim is therefore DISMISSED.
Second, Defendants argue that Plaintiff’s Fourth Amendment property
destruction claims were resolved in Judge Pro’s October 4, 2004 Order. As the
Court noted above, Defendants maintain that the October 4, 2004 Order must have
disposed of the property destruction claims because the alleged property
22
destruction was mentioned in the “Background” section of that Order. (Doc. # 369
at 8.) That argument lacks merit. Defendants also urge the Court to find that
Judge Pro’s October 4, 2004 Order implicitly disposed of Plaintiff’s property
destruction claim because it was not among the claims Judge Pro explicitly
declined to dismiss. (Id.) The Court declines to do so. Any claim not explicitly
addressed in Judge Pro’s October 4, 2004 Order survived that Order.
Next, Defendants argue that Robert Kahre’s property destruction
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the
Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas
corpus . . . .
512 U.S. at 486–87. In other words, Heck stands for the proposition that “if a
criminal conviction arising out of the same facts stands and is fundamentally
inconsistent with the unlawful behavior for which section 1983 damages are
sought, the 1983 action must be dismissed.” Smithart v. Towery, 79 F.3d 951, 952
(9th Cir. 1996). The relevant question, the Supreme Court explained, is whether “a
judgment in favor of the plaintiff [in the § 1983 suit] would necessarily imply the
23
invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. In this case,
success on his Fourth Amendment property destruction claim would not imply the
invalidity of Robert Kahre’s conviction; he need not prove any facts that are
“fundamentally inconsistent” with his conviction in order to prevail. Beets v.
Cnty. of L.A., 669 F.3d 1038, 1046 (9th Cir. 2012). Nor would success on his
property destruction claim indicate that evidence seized during the search in
question should have been suppressed at his criminal trial. The exclusionary rule
applies only when evidence is obtained “as a direct result” of a Fourth Amendment
violation or if evidence is “found to be derivative of an illegality.” Segura v.
United States, 468 U.S. 796, 804 (1984). Here, the allegations do not suggest that
there is any causal connection between the gratuitous destruction of property and
the discovery of evidence. Excessive or unnecessary destruction of property may
violate the Fourth Amendment although the underlying search was lawful and its
fruits not subject to suppression. United States v. Ramirez, 523 U.S. 65, 71 (1998).
Accordingly, Heck does not bar Robert Kahre’s property destruction claim.
Finally, Defendants assert that Plaintiff fails to state a claim for
property destruction under Federal Rule of Civil Procedure 12(b)(6). “The
destruction of property is ‘meaningful interference’ constituting a seizure under the
Fourth Amendment, because the destruction of property by state officials poses as
much of a threat, if not more, to people’s right to be ‘secure . . . in their effects’ as
24
does the physical taking of them.” Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994),
overruled on other grounds, Robinson v. Solano Cnty., 278 F.3d 1007, 1013 (9th
Cir. 2002) (internal quotation marks and citations omitted). As with any seizure
under the Fourth Amendment, “[r]easonableness is the touchstone”: courts must
“look to the totality of the circumstances to determine whether the destruction of
property was reasonably necessary to effectuate the performance of the law
enforcement officer’s duties.” San Jose Charter of Hells Angels Motorcycle Club
v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). Here, the SAC alleges that
officers gratuitously destroyed Robert Kahre’s property, driving a personnel carrier
through an unlocked gate without attempting to open the gate without force;
smashing surveillance cameras and pulling them out of walls; and prying upon
unlocked file cabinets and lockboxes with a crowbar. Taking these allegations of
fact as true, the Court concludes that the destruction of property alleged was not
reasonably necessary to effectuate the performance of the officers’ duties, and may
therefore have been unreasonable under the Fourth Amendment.
Defendants do not appear to dispute for purposes of this Motion that
the property destruction alleged in the SAC amounts to a violation of the Fourth
Amendment. However, Defendants contend that the SAC fails to allege with
sufficient specificity how the three remaining defendants—AUSA Damm, and IRS
Agents Halper and Crowther—caused the alleged property destruction. (Doc.
25
# 369 at 10.) Defendants note that it is undisputed that AUSA Damm was not
present at any of the search sites on May 29, 2003 (“First Damm Decl.,” doc. # 22
at 128–130 ¶¶ 11–12), and that neither Agent Crowther nor Agent Halper
participated in the entries made at any of the search locations (“First Crowther
Decl.,” doc. # 22 at 137–143 ¶¶ 5, 22; “Halper Decl.,” doc. # 22 at 62–81 ¶ 27). It
is true that the SAC does not allege that any of the remaining defendants
personally participated in the alleged property destruction—for example, drove a
personnel carrier through an unlocked gate or smashed surveillance cameras.
However, the SAC alleges that Damm and Halper are responsible for every
constitutional violation alleged therein because they planned and directed the
conduct complained of. Specifically, the SAC alleges that Damm and Halper
“conspired and agreed . . . to devise an ‘operational plan’” to use IRS agents and
SWAT team members to illegally seize Robert Kahre’s personal property without a
warrant, probable cause or any reasonable basis; retaliate against Robert Kahre;
“unlawfully and unreasonably execute . . . search warrants”; and unlawfully arrest
Robert Kahre. (SAC ¶ 4.)
The Court concludes that these allegations are sufficient to state a
claim for unnecessary property destruction against Defendants Damm and Halper.
Defendants Damm and Halper may not be held liable for the constitutional
violations of their subordinates—the officers who executed the search warrants—
26
based on a theory of respondeat superior, as that theory is inapplicable to Bivens
actions. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). However, a
supervisor may be held liable for the violations of his subordinates “if the
supervisor participated in or directed the violations . . . .” Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989). Since the SAC alleges that Damm and Halper together
devised a plan whereby they directed the officers who executed the search warrants
to commit the constitutional violations alleged in the SAC, it states a claim for
unnecessary property destruction against them.
However, the SAC does not state a claim for property destruction
against Crowther. The SAC does not allege that Crowther personally participated
in the unnecessary property destruction, or directed any other officers to destroy
Robert Kahre’s property. It asserts that Crowther conspired with the other
defendants named in the SAC to violate Plaintiffs’ “clearly established
constitutional rights” (SAC ¶ 6), but it does not allege any facts regarding the
scope of the alleged conspiracy or the manner in which it operated. This allegation
is too vague and conclusory for the Court to reasonably infer that Crowther could
be responsible for violations committed by another defendant by virtue of the
alleged “conspiracy.” See Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir.
1989) (“To state a claim for a conspiracy to violate one’s constitutional rights
27
under section 1983, the plaintiff must state specific facts to support the existence of
the claimed conspiracy.”).
Defendant’s Motion is, therefore, DENIED WITHOUT
PREJUDICE to the extent it seeks dismissal of Robert Kahre’s Fourth
Amendment property destruction claim against Defendants Damm and Halper, and
GRANTED insofar as it seeks dismissal of the same claim against Defendant
Crowther.
C.
Fourth Amendment Unlawful and Unreasonable Detention Claims
In the SAC, Robert Kahre alleges that he was unreasonably and
unlawfully detained following his arrest at Bank of the West on May 29, 2003.
(SAC ¶¶ 510(C) and (D).) Defendants point out that Plaintiff’s only basis for
arguing that his detention was unreasonable and unlawful is that the arrest
preceding the detention was unlawful. (Doc. # 369 at 11.) The Court has already
ruled in Defendants’ favor on Robert Kahre’s unlawful arrest claim. (See Docs.
## 319, 354.) Accordingly, Defendants contend, his unlawful and unreasonable
detention claims must also fail. (Doc. # 369 at 11.) In response, Robert Kahre
appears to concede that, given the Court’s holding that his arrest was lawful, he
cannot prevail on his claims for unlawful and unreasonable detention. (Doc. # 380
at 26.) However, he maintains that his arrest and subsequent detention were
unlawful and indicates that he intends to contest the Court’s ruling on his unlawful
28
arrest claim on appeal. (Doc. # 380 at 26.) Robert Kahre’s unlawful and
unreasonable detention claims are, therefore, DISMISSED.
D.
“Unlawful Planning” Claims
The SAC does not state a stand-alone claim for “unlawful planning”;
rather, as the Court discussed above, Robert Kahre asserts that Damm and Halper
are responsible for every constitutional violation alleged in the SAC because they
planned and directed the conduct complained of. Robert Kahre has one substantive
claim remaining: his claim for property destruction in violation of the Fourth
Amendment. Thus, Plaintiff’s “unlawful planning” claim exists insofar as it is a
means by which Plaintiff may seek to hold Damm and Halper liable for the alleged
property destruction.
Defendants argue that this claim must be dismissed because all
underlying substantive claims have been dismissed. (Doc. # 369 Ex. 1 at 12.) This
argument fails; the Court has concluded that Plaintiff’s claim for unnecessary
property destruction survives. Defendants also complain that a holding in
Plaintiff’s favor on his “unlawful planning” claim will allow Plaintiff to seek
discovery from Damm—“an extraordinary event,” according to Defendants, “given
that AUSA Damm was one of the Government attorneys who prosecuted [Plaintiff]
in [his] criminal case . . . .” (Doc. # 386 at 2.) Defendants assert that “Mr. Kahre
has been unfairly attacking AUSA Damm for many years in the instant civil case
29
and in the criminal case in an attempt to further his interests,” and maintain that
“discovery [regarding Mr. Damm] would be a fishing expedition that is not
warranted by the facts.” (Id.) The Court reminds Defendants that it has already
ordered that Plaintiff be permitted to take discovery regarding the extent to which
Damm was involved in planning the searches on May 29, 2003. (Doc. # 300 at
28.) In this Court’s September 2, 2011 Order, it granted Plaintiffs a Rule 56(d)
continuance, finding that there was a “dearth of evidence on the record” (id. at 25)
and concluding that Defendants were not entitled to summary judgment on the
unlawful planning issue despite Defendant Damm’s self-serving declarations that
he did not participate in planning the “unlawful raid” (id. at 27–28). The Court is
not convinced that it would so unjust or prejudicial to permit Damm to be deposed
that it must dismiss an otherwise valid claim because it is asserted against him.
Accordingly, the Court concludes that Plaintiff must be permitted to
take discovery regarding the extent to which Damm and Halper were involved in
planning the execution of the search warrant at 6270 Kimberly Avenue that
resulted in the alleged gratuitous destruction of property. The Court is not
authorizing a fishing expedition; discovery is limited to those matters germane to
Plaintiff’s sole remaining claim. Plaintiff may depose Damm and Halper for the
very limited purpose of determining whether they directed the property destruction
that occurred during the execution of the search warrant at 6270 Kimberly Avenue.
30
Other discovery sought from Defendants must be similarly limited in scope. If the
evidence fails to establish that Damm and Halper directed any property
destruction, Defendants may renew their motion for summary judgment and the
Court will enter judgment in Defendants’ favor on Plaintiff’s last remaining claim.
II.
Defendants’ Motion for Summary Regarding the Remaining Claim of
Plaintiffs Lori Kahre and Lee Belcher
The SAC alleges that Defendants violated the Fourth Amendment
rights of Plaintiffs Lori Kahre and Belcher by searching their home without a
warrant (SAC ¶¶ 488(F), 504(F)); detaining them unreasonably and unlawfully (id.
¶¶ 488(C), 488(D), 504(C), 504(D)); using excessive force (id. ¶¶ 488(E), 504(E));
and destroying their property (id. ¶¶ 488(I), 504(I)). Specifically, Belcher claims
that on May 29, 2003, at approximately 4:30 p.m., he was inside his home—the
secondary unit at 6295 N. Grand Canyon Avenue (“the secondary unit”)—when he
heard noises outside. (Id. ¶¶ 293, 294.) According to Belcher, when he stepped
outside, members of a SWAT team pointed guns at him, and although he complied
with their orders, they shot him once in the back and twice in the stomach with
non-lethal bags. (Id. ¶¶ 295–300.) Belcher alleges that he was tackled, thrown to
the ground, dragged down a rocky embankment to the primary unit at 6295 N.
Grand Canyon Avenue, and then detained in handcuffs on the porch of the primary
unit. (Id. ¶¶ 301–303.) He claims that while he was detained, officers were
31
searching the secondary unit, and detonated a “flash-bang,” which caused damage
inside the dwelling. (Id. ¶¶ 317, 327, 328.) According to Belcher, he was
eventually given a choice between leaving the property, unrestrained, or remaining
on the property, handcuffed. (Id. ¶ 321.) He chose the latter. (Id.) Belcher asserts
that they had no legal authority to search the secondary unit, keep him in
handcuffs, or prevent him from returning to his home. (Id. ¶ 322.)
Lori Kahre alleges that she was also in the secondary unit at 4:30 p.m.
on May 29, 2003, when members of a SWAT team ordered her to come outside
with her hands up. (Id. ¶¶ 345–349.) She claims that the officers handcuffed her,
one of them “threw her up against a cinder block wall,” and then they dragged her
through rocks and gravel to the front porch of the primary unit. (Id. ¶¶ 351–352.)
Paramedics treated wounds on her chin, shoulder, neck and elbow. (Id. ¶ 357.)
Eventually, she alleges, the officers took her back to her house, still handcuffed.
(Id. ¶ 362.) She claims that she was detained in her home by the officers until
10:30 p.m., when they “completed their raid.” (Id. ¶¶ 373, 376.)
The SAC named the following defendants: AUSA Damm; IRS Agents
Halper, Mercedes Manzur, and Dennis Crowther (“Crowther”); and officers with
the NLVPD. As the Court noted above, the claims asserted against NLVPD
officers were dismissed by the Court in a May 22, 2006 Order. (Doc. # 142.)
Thus, although Lori Kahre and Belcher’s Fourth Amendment claims were asserted
32
against IRS Agent Crowther—the only federal defendant present during the May
29, 2003 raid at 6295 N. Grand Canyon Avenue—and various NLVPD officers,
only the claims against Crowther remain viable. Defendants now move for
summary judgment on Belcher and Lori Kahre’s Fourth Amendment claims
against Crowther. They also move for summary judgment on the “unlawful
planning” claims asserted against AUSA Damm and IRS Agent Halper,2 to the
extent they are based upon the Fourth Amendment violations alleged by Belcher
and Lori Kahre.
Defendants advance several arguments in favor of summary
judgment. First, although there is no dispute that the SWAT team did not have a
warrant to conduct a search of Belcher and Lori Kahre’s home—the secondary unit
at 6295 N. Grand Canyon Avenue—Defendants call the SWAT team’s entry of the
secondary unit a “protective sweep,” and contend that it was therefore justified
although not authorized by a warrant. (Doc. # 350 at 10.) Second, Defendants
point out that this very Court upheld the lawfulness of the warrantless entry in
Robert and Lori Kahre’s criminal trial (Cr. 2:05–CR–00121–DAE–RJJ, Doc.
2
Defendants’ Motion for Summary Judgment Regarding the Remaining Claim of
Plaintiffs Lori Kahre and Lee Belcher does not address the unlawful planning
claims asserted against Halper, most likely because it was not clear prior to the
issuance of this Order that the claims asserted against Halper survived. However,
as the Court has concluded that the SAC adequately alleges that Halper, together
with Damm, planned the unlawful conduct complained of, the Court will address
the unlawful planning claim asserted against Halper as well.
33
# 2411), and argue that Plaintiffs are therefore barred from relitigating the issue.
(Doc. # 350 at 9–10.) Third, Defendants assert that Plaintiffs are also barred from
challenging the constitutionality of the SWAT team’s actions at the secondary unit
pursuant to Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Fourth, Defendants
maintain that Lori Kahre and Belcher’s claims against Crowther fail because the
evidence demonstrates that Crowther was not involved in any search of the
secondary unit, in the use of force against Belcher or Lori Kahre, or in the
destruction of property, and neither Lori Kahre nor Belcher were detained against
their will. Finally, Defendants argue that, since the underlying Fourth Amendment
claims are without merit, the claims against Damm and Halper must also fail. The
Court will address each of Plaintiffs’ Fourth Amendment claims in turn.
A.
Illegal Search
As the Court noted above, there is no dispute that NLVPD officers
entered the secondary unit on May 29, 2003 without a warrant. Defendants
contend that the SWAT team’s entry of the secondary unit was a “protective
sweep,” and was therefore justified although not authorized by a warrant. (Doc.
# 350 at 10.) Defendants also point out that this Court upheld the lawfulness of the
warrantless entry in Robert and Lori Kahre’s criminal trial (see Cr. 2:05–CR–
00121–DAE–RJJ, doc. # 2411), and assert that the doctrine of collateral estoppel
therefore bars Plaintiffs from relitigating this issue. The Court agrees. “Under
34
collateral estoppel, once a court has decided an issue of fact or law necessary to its
judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case.” Allen v. McCurry,
449 U.S. 90, 94 (1980). When considering the preclusive effect of a prior federal
court judgment, federal law controls the analysis. McQuillion v. Schwarzenegger,
369 F.3d 1091, 1096 (9th Cir. 2004). Three factors must be considered: (1)
whether the issue at stake is identical to the one alleged in the prior litigation; (2)
whether the issue was actually litigated by the party against whom preclusion is
asserted in the prior litigation; and (3) whether the determination of the issue in the
prior litigation was a critical and necessary part of the judgment. Id.
In this case, all three factors are satisfied. The legality of the officers’
warrantless entry of the secondary unit was challenged by Robert and Lori Kahre
in a motion to suppress in the related criminal case (Cr. 2:05–CR–00121–DAE–
RJJ, docs. ## 2136, 2164), and Lori Kahre had an opportunity to argue the motion,
through counsel, at a suppression hearing (id., doc. # 2411 at 2). Although Lee
Belcher was not actually a party to the earlier action, “[c]ourts have recognized
that a non-party may be bound if a party is so closely aligned with its interests as to
be its ‘virtual representative.’” Schoenleber v. Harrah’s Laughlin, Inc., 423 F.
Supp. 2d 1109, 1112 (D. Nev. 2006). “A close relationship between the named
party and the nonparty supports a finding of virtual representation,” and “[a]n
35
identity of relevant interests between the named party and the non-party is
necessary to such a finding.” Irwin v. Mascott, 370 F.3d 924, 930 (9th Cir. 2004).
Belcher had and continues to have a close relationship with Lori Kahre. At the
time that the search occurred and at the time of the suppression hearing in the
criminal case, Belcher and Lori Kahre were in a romantic relationship and shared a
home. Moreover, Lori Kahre’s interests in the prior action are identical to
Belcher’s interests in this action; she had a tremendous incentive to convince the
Court that the warrantless entry was illegal so that any evidence derived therefrom
would be suppressed. Plaintiffs are therefore collaterally estopped from
relitigating the illegal search issue in this case.3
In any event, even if the Court were to reach the merits of this claim,
Defendants would be entitled to summary judgment for the same reason the Court
upheld the legality of the warrantless entry in the related criminal action. “In
executing a search warrant officers may take reasonable action to secure the
premises and to ensure their own safety and the efficacy of the search.” L.A.
Cnty., Cal. v. Rettele, 550 U.S. 609, 614 (2007). They may conduct a protective
sweep of an area if “specific and articulable facts support[] [the] belief that . . .
dangerous persons may be in the building or elsewhere on the premises.” United
3
As the Court did not address Lori Kahre’s allegations of excessive force,
property destruction, or unreasonable detention in the criminal action, the doctrine
of collateral estoppel does not bar Lori Kahre and Belcher’s litigation of those
claims in this case.
36
States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (quoting United States v.
Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988)). In this case, the
officers had sufficient reason to believe that a protective sweep was necessary.
The affidavit filed in support of the search warrant set forth reasons for concern for
the physical safety of the law enforcement officers involved in the investigation.
The main reason for concern was a letter written by Robert Kahre and sent to IRS
Agent Manzur on August 7, 2000. (Doc. # 381 Ex. B.) The letter stated that
Robert Kahre had “armed security details” at several properties at which he
conducted business. (Id.) It also stated that Robert Kahre did not recognize the
legitimacy of IRS agents as law enforcement personnel. (Id. (“I am put in the
awkward position of not being able to recognize the [IRS] agents’ authority
. . . .”).) Robert Kahre noted, in the letter, that he was making these observations
because he wanted “to be sure [to] avoid even the remotest possibility of physical
injury, harm, or loss of life to anyone.” (Id.) In light of this letter, it was
reasonable for law enforcement officers executing the search warrant at 6295 N.
Grand Canyon Drive to believe that individuals on the premises might be armed
and unwilling to submit to their authority. Accordingly, the protective sweep of
Lori Kahre and Belcher’s home was justified under the circumstances.
Finally, even if the warrantless entry was unreasonable and the claim
was not barred by the doctrine of collateral estoppel, Plaintiffs’ illegal search claim
37
would fail to the extent it is asserted against Defendant Crowther. Defendants
have submitted evidence demonstrating that the search—or “sweep”—of the
secondary unit was carried out by NLVPD officers, not by Crowther. Captain
Justin Roberts of the NLVPD, who was a member of the SWAT team tasked with
securing 6295 N. Grand Canyon Drive on May 29, 2003, submitted a Declaration
in support of Defendants’ Motion for Summary Judgment, which states that “[a]ll
of the individuals who were on the team that was involved in the protective sweep
of the [secondary unit] on May 29, 2003 were employed by the North Las Vegas
Police Department.” (Doc. # 351 ¶ 8.) Thus, there is no genuine issue for trial
regarding Crowther’s participation in the challenged conduct.
B.
Excessive Force
The “use of force is contrary to the Fourth Amendment if it is
excessive under objective standards of reasonableness.” Saucier v. Katz, 533 U.S.
194, 202 (2001). Reasonableness is assessed by balancing “[t]he force which [i]s
applied . . . against the need for that force.” Deorle v. Rutherford, 272 F.3d 1272,
1279 (9th Cir. 2001). “In determining the need for force, we pay ‘careful attention
to the facts and circumstances of [the] particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.’” Meredith v. Erath, 342 F.3d 1057, 1061 (9th
38
Cir. 2003) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The
reasonableness of force used is ordinarily a question of fact for the jury, but a
district court may grant summary judgment to an officer if it determines that the
use of force was objectively reasonable under the circumstances. See Liston v.
Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997).
With respect to Belcher’s excessive force claim, the following facts
are undisputed. Belcher was ordered to exit his house and walk towards the
SWAT team with his hands in the air, and he complied. (Doc. # 352 Ex. 6.) When
he was 15 feet away from the officers, he demanded to see a search warrant, and
refused several orders to approach and several orders to lie down on the ground.
(Id.) According to Captain Roberts’s report, “[b]ecause [the officers] knew other
subjects were inside the residence, and [their] initial information included possible
machine guns, Belcher[’]s noncompliance was creating a safety hazard to himself,
and officers.” (Doc. # 351 Ex. 1.) The officers shot Belcher with an air-propelled
pepper ball gun three times (id.) until he crouched down (doc. # 352 Ex. 6).
“Fearing that Mr. Belcher was about to run back into the house,” the officers “took
hold of [him] by the wrists” and “ordered [him] to get on the ground,” at which
point they “pulled [him] out past the entry team.” (Id.)
“[T]he most important single element” when assessing the
reasonableness of the use of force is “whether the suspect poses an immediate
39
threat to the safety of the officers or others.” Chew v. Gates, 27 F.3d 1432, 1441
(9th Cir. 1994). Here, the officers were investigating income tax related crimes,
which are nonviolent offenses. However, as the Court discussed above, the
officers had reason to believe that there might be an armed security detail at 6295
N. Grand Canyon Drive—an armed security detail that did not recognize the lawful
authority of IRS agents, who were directing the investigation. The evidence
indicates that Belcher himself did not pose an immediate threat to the safety of the
officers or others; he had complied with the officers’ order to put his hands in the
air, and had exited the house and walked toward them as directed. However, his
continued refusal to approach the officers or to lie on the ground prolonged both
his and the officers’ exposure to risk from individuals still inside the home. Thus,
the officers’ reasonable safety concerns warranted the use of a non-lethal pepper
ball gun to bring Belcher under the officers’ control. Cf. Headwaters Forest
Defense v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (holding that
the use of pepper spray “may be reasonable as a general policy to bring an arrestee
under control”) (quoting LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th
Cir. 2000)).
As for Lori Kahre’s claim, the following facts are not in dispute. Lori
Kahre was ordered to exit her house and approach the SWAT team with her hands
in the air, and she complied. (Doc. # 352 Ex. 6.) When she reached the officers,
40
they ordered her to turn away from them and she said “why?” and lowered her
arms. (Id.) Two officers then “took hold of [her] wrists and arms and [escorted]
her past the entry team.” (Id.) While they were escorting her, she demanded to see
a search warrant, and when one of the officers told her to calm down and placed
her hands behind her back, she said “No, I wanna see the search warrant!” and
“began trying to break free . . . by twisting her arms around and pulling away from
[the officers].” (Id.) At that point, the officers attempted to place her up against a
wall “to gain more control of her,” and she “put her right foot up onto the wall and
began to push her body back towards” them.” (Id.) One officer pushed Lori
Kahre’s leg down with his right hand and both pushed her up against the wall.
(Id.) While pushed up against the wall, she moved around rapidly and attempted to
break away. (Id.) She suffered a scratch on her shoulder and an abrasion on her
chin from being placed up against the wall. (Id.) The Court concludes that the
officers used objectively reasonable force to subdue Lori Kahre. Lori Kahre
resisted more actively than Belcher; she physically struggled with the officers,
attempting to break free and pushing against a wall with her foot. The officers did
not push her up against the wall—the action that ultimately led to her injuries—
until she began trying to break free, and the injuries she suffered were apparently a
result of the struggle.
41
For the reasons stated above, the Court concludes that Defendants are
entitled to summary judgment as a matter of law on Plaintiffs’ excessive force
claims. The Court also notes that, even if the officers had not used objectively
reasonable force to subdue Belcher and Lori Kahre, Plaintiffs’ claims would fail
insofar as they are asserted against Crowther. Again, the evidence demonstrates
that only NLVPD officers, not Crowther, were involved in ordering Belcher and
Lori Kahre to exit the secondary unit and subsequently subduing them. (Doc.
# 351 ¶ 8, 10; Doc. # 352 Ex. 1, 6.)
C.
Unlawful Detention
Turning to Plaintiffs’ unlawful detention claims,4 Belcher and Lori
Kahre argue that Defendants had no authority to detain them during the execution
of the search warrant on May 29, 2003. Belcher’s claim fails, as he admits that at
approximately 5 p.m., he was told that he could stay at 6295 N. Grand Canyon
Drive, in handcuffs, or could leave the premises. (SAC ¶ 321; “Belcher Depo.,”
Doc. # 352 Ex. 5 at 32–33.) He chose to leave. (Belcher Depo. at 33:4.)
As for Lori Kahre, she was brought back to the secondary unit at 5
p.m., still handcuffed. (SAC ¶ 62; “Lori Depo.,” Doc. # 352 Ex. 4 at 41:16–17.)
4
Belcher and Lori Kahre each asserted claims for unreasonable detention and
unlawful detention. The unreasonable detention claims stem from the period of
time during which they were handcuffed and made to wait on the front porch of the
primary unit, and were dismissed in Judge Pro’s October 4, 2004 Order. (Pro
Order at 18.) Accordingly, only the claims for unlawful detention survive.
42
Defendant Crowther and a number of NLVPD officers were present at the
secondary unit when she arrived. (Lori Depo. at 50:7–12.) Defendant Crowther’s
Declaration, submitted in support of Defendant’s Motion for Summary Judgment,
states that he “was instructed to go to Lori Kahre’s residence” (the secondary unit)
“and ‘monitor [Ms. Kahre] for law enforcement officer safety reasons’ until the
search of the primary residence at [6295 N. Grand Canyon Drive] was completed.”
(“Crowther Decl.,” Doc. #350 Ex. 3 ¶ 3.) Lori Kahre’s handcuffs were removed
approximately fifteen minutes after she was escorted to the secondary unit. (Lori
Depo. at 49:21–25.) According to Sergeant Donald Collins of the NLVPD, after
her handcuffs were removed, she was told that she was free to leave and was not
under arrest, but she indicated that she wanted to stay in the house. (“Collins
Decl.,” Doc. # 350 Ex. 4 ¶ 7.) During her deposition, Lori Kahre stated that she
did not recall anyone telling her she had to stay in the house (Lori Depo. at 70:15–
17), and admitted that the officers “could have” told her she was free to leave, but
she didn’t remember, and in any event she “wouldn’t have left, not without [her]
animals and not knowing what’s going on in [her] house” (id. at 62:17–19, 70–71).
Accordingly, from approximately 5 p.m. to 10:30 p.m., Lori Kahre sat in the
kitchen of the secondary unit. (Lori Depo. at 66:14–23.) When she had to go to
the bathroom, a female officer escorted her. (Id. at 70:20–21.) Several NLVPD
officers sat on her couch watching television, and Defendant Crowther stood in the
43
kitchen with her talking about various things, such as the high school they both
attended. (Id. at 67–68, 73:24–25.) According to Lori Kahre, Crowther was the
“only one that was decent to [her]”; he helped her treat her wounds, and let her
drink rum and 7-Up. (Lori Depo. at 50–51, 69:20–22.)
As a threshold matter, the Court must determine whether Lori Kahre
was “seized” within the meaning of the Fourth Amendment. If no seizure
occurred, the officers’ conduct plainly did not violate her Fourth Amendment right
to protection from “unreasonable searches and seizures.” U.S. Const. amend. IV.
A person is seized when an officer, “by means of physical force or show of
authority, terminates or restrains his freedom of movement,” Brendlin v.
California, 551 U.S. 249, 254 (2007) (internal quotation marks omitted), such that
“a reasonable person would have believed that he was not free to leave,” United
States v. Mendenhall, 446 U.S. 544, 554 (1980). The Supreme Court has said that
the “crucial test is whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would ‘have communicated to a
reasonable person that he was not at liberty to ignore the police presence and go
about his business.’” Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting
Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).
Here, there is no genuine dispute that Lori Kahre was free to leave her
home on the evening of May 29, 2003. Sergeant Collins’s Declaration states that
44
she was told she was not under arrest and was free to leave; her own deposition
testimony confirms that she does not recall being told that she had to stay in the
house, and “could have” been told she was free to leave; and Belcher, a cooccupant of the home, was permitted to leave. Under these circumstances, a
reasonable person would have understood that she was free to leave. However, the
fact remains that, having chosen to stay in her home, Lori Kahre’s freedom was
restricted. She was escorted to her home in handcuffs, and remained handcuffed
for fifteen minutes inside the house. Once the handcuffs were removed, she was
“[t]old to sit there” in the kitchen on a barstool (Lori Depo. at 65:11), and was not
permitted to walk freely around the house by herself; Defendant Crowther
accompanied her when she went looking for her cats (id. at 56:2–5), and fetched
cold rags for her to tend to her wounds, because she was not allowed to leave the
room alone (id. at 50–51). Her deposition testimony suggests that she had to ask
permission to make herself a mixed drink (id. at 69:22 (“Dennis let me make it.”)),
and was accompanied to the bathroom by a female officer (id. at 70:20–21). No
reasonable person would have felt at liberty to ignore the police presence and go
about her business under these circumstances. The Court concludes that Lori
Kahre was seized within the meaning of the Fourth Amendment.
In general, a seizure—even one that does not amount to a formal
arrest—is reasonable under the Fourth Amendment only if supported by probable
45
cause. See Dunaway v. New York, 442 U.S. 200, 213 (1979). Here, there is no
suggestion that the officers had probable cause to arrest Lori Kahre. However, the
Supreme Court has recognized that certain seizures that are significantly less
intrusive than a formal arrest may withstand scrutiny under the general
reasonableness standard embodied in the Fourth Amendment even when not
supported by probable cause. Michigan v. Summers, 452 U.S. 692, 697 (1981).
One well-established exception to the general rule is that “police may
detain a building’s occupants while officers execute a search warrant as long as the
detention is reasonable.” Dawson v. City of Seattle, 435 F.3d 1054, 1065 (9th Cir.
2006); see also Summers, 452 U.S. 692, 705 (1981) (“If the evidence that a
citizen’s residence is harboring contraband is sufficient to persuade a judicial
officer that an invasion of the citizen's privacy is justified, it is constitutionally
reasonable to require that citizen to remain while officers of the law execute a valid
warrant to search his home.”). This is so “because the character of the additional
intrusion caused by detention is slight”—the detention itself is less intrusive than
the search—and “because the justifications for detention are substantial.” Muehler
v. Mena, 544 U.S. 93, 98 (2005). In other words, the important law enforcement
interests served by detaining the occupants of a building being searched outweigh
the detainees’ privacy rights.
46
Courts have also upheld the detention of individuals located outside
the area where a search warrant is to be executed, but within a secure perimeter or
close enough to pose a danger to the officers executing the warrant. For example,
in United States v. Allen, 618 F.3d 404, 405–06, 409–10 (3d Cir. 2010), the court
held that it was reasonable for officers executing a search warrant inside a bar to
detain Allen, who was working as a security guard for the bar and was found
standing on the sidewalk outside when the officers arrived. The officers detained
Allen “just long enough to ensure [their] safety and . . . to gather the evidence they
were seeking.” Id. Similarly, in United States v. Jennings, 544 F.3d 815, 818 (7th
Cir. 2008), the court concluded that it was reasonable for officers to briefly detain
Jennings, although he “never stepped onto the property being searched,” because
“he entered the security perimeter surrounding the apartment where the narcotics
search was underway.”
Here, the Court concludes that the officers’ detention of Lori Kahre
was reasonable under the circumstances. United States v. Enslin, 327 F.3d 788,
796 (9th Cir. 2003) (“Any inquiry into the reasonableness of a seizure requires ‘a
careful balancing of the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing governmental interests at
stake.’”) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). She was not an
occupant of the building being searched, so the existence of the search warrant did
47
not provide “objective justification” for her detention as it did in Summers.
Summers, 452 U.S. at 703 (“The existence of a search warrant . . . provides an
objective justification for the detention. A judicial officer has determined that
police have probable cause to believe that someone in the home is committing a
crime.”); see also Mena, 544 U.S. at 98 (observing that the existence of a warrant
ensures that “a neutral magistrate has determined that probable cause exists to
search the home”). However, the secondary unit was a very short distance from the
primary unit (Lori Depo. at 13–14), and within the area the SWAT team had
secured. The occupant of the secondary unit—Lori Kahre—was the sister and
employee of the principal target of the investigation. The officers had a legitimate
interest in ensuring their own safety during the search of the primary unit, and they
did so by giving Lori Kahre the choice to leave the secure site or remain under
watch. As the Supreme Court observed in Summers, “[t]he risk of harm to both
the police and the occupants is minimized if the officers routinely exercise
unquestioned command of the situation.” 425 U.S. at 702–03.
For the reasons stated above, Defendants are entitled to summary
judgment as to Plaintiffs’ claims for unlawful detention.
D.
Property Destruction
Finally, it is undisputed that the SWAT team caused damage when
they entered the secondary unit. According to Captain Roberts of the NLVPD,
48
after Lori Kahre and Belcher exited the house, the SWAT team noticed a dog
inside. (Doc. # 351 ¶ 12.) The officers tossed a blast distraction device into the
house to distract the dog. It ended up on the kitchen floor, and when it went off it
caused damage to the tile floor—one tile, about eight inches in diameter, was
discolored and had holes in it. (Id.; Lori Depo. at 53–54; Doc. # 351 Exs. 2, 3.)
The blinds and sliding glass window in the kitchen were also damaged. (Lori
Depo. at 54:15–18.) Finally, sliding glass closet doors in Lori Kahre and Belcher’s
bedroom had been taken off their track. (Id. at 56–57; Doc. # 351 Ex. 4.)
As the Court noted above in its discussion of Robert Kahre’s property
destruction claim, whether government destruction of property violates the Fourth
Amendment turns on whether the destruction of property was reasonably necessary
to effectuate the performance of the law enforcement officers’ duties. See San
Jose Charter of Hells Angels Motorcycle Club, 402 F.3d at 975. The Court
concludes that the amount of damage caused by the officers in this case was
reasonably necessary to achieve the objectives of the protective sweep: ensuring
officer safety and securing the premises in preparation for execution of the search
warrant. The blast distraction device was thrown into the house for a legitimate
reason—to distract the dog—and the damage it caused was fairly minor;
photographs of the tile floor show small holes in one tile and slight discoloration
on surrounding tiles. The sliding glass doors in the bedroom had merely been
49
taken off their tracks. Thus, the damage was not severe, and there is no indication
that it was gratuitous. Accordingly, the Court concludes that Defendants are
entitled to judgment as a matter of law on Lori Kahre and Belcher’s property
destruction claims.
In conclusion, the Court DISMISSES Lori Kahre and Lee Belcher’s
illegal search claim as barred by the doctrine of collateral estoppel, and GRANTS
Defendants summary judgment on Plaintiffs’ three remaining claims. Lori Kahre,
Lee Belcher, and Defendant Crowther are therefore DISMISSED from this case.
III.
Defendants’ Motion to Strike
On August 17, 2012, Plaintiffs Lori Kahre and Lee Belcher submitted
an Expert Witness Report prepared by Robert Clymer (“Clymer”), a former FBI
Agent. (Doc. # 336 Ex. 4.) On September 6, 2012, Defendants moved to strike
Clymer’s expert report and testimony. (Doc. # 336.) As this Order disposes of
Lori Kahre and Lee Belcher’s last remaining claims, the Court DENIES AS
MOOT Defendants’ Motion to Strike.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion
for Summary Judgment (doc. # 350), and GRANTS IN PART and DENIES
WITHOUT PREJUDICE IN PART Defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment (doc. # 369). Plaintiff Robert Kahre’s First
50
Amendment Retaliation Claim and Fourth Amendment Unlawful and
Unreasonable Detention Claims are DISMISSED. Defendants are entitled to
judgment on Plaintiffs Lori Kahre and Lee Belcher’s illegal search, unlawful
detention, property destruction, and excessive force claims. Defendant Crowther,
Plaintiff Lori Kahre, and Plaintiff Lee Belcher are DISMISSED from the case.
The Court DENIES AS MOOT Defendant’s Motion to Strike. (Doc. # 336.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, August 9, 2013.
_____________________________
David Alan Ezra
Senior United States District Judge
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