The opinion
FILED
NOT FOR PUBLICATION
MAY 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIANNE PANAGACOS; et al., Nos. 14-35598, 14-35816
Plaintiffs-Appellants, D.C. No. 3:10-cv-05018-RBL
v.
MEMORANDUM*
JOHN J TOWERY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted April 7, 2017
Seattle, Washington
Before: W. FLETCHER and GOULD, Circuit Judges, and BLOCK,** District
Judge.
Plaintiffs-Appellants belonged to the Port Militarization Resistance, a non-
violent protest organization devoted to protesting the shipment of arms from ports
in Washington state to Afghanistan and Iraq. From approximately 2007 to 2009,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Defendant Towery, a civilian army employee, infiltrated the group and shared their
plans with his supervisor, Defendant Rudd. Rudd in turn relayed that information
to his superiors and to local police departments in Tacoma and Olympia. Plaintiffs
allege that because of Towery’s infiltration and Rudd’s relaying of Towery’s
information, the protesters were arrested without probable cause by the Tacoma
and Olympia Police in violation of the Fourth Amendment, and that their
fundamental First Amendment freedoms were chilled.
The district court found that Plaintiffs had failed to demonstrate any triable
issue of fact sufficient to survive summary judgment. The court granted
Defendants’ Summary Judgment motion on all claims and awarded costs to the
Defendants. Plaintiffs timely appealed. We affirm.
We have jurisdiction pursuant to 28 U.S.C. § 1291. A district court’s
decision to grant summary judgment is reviewed de novo. See, e.g., Rodis v. City &
Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009) (considering summary
judgment in a § 1983 suit); Moore v. Glickman, 113 F.3d 988, 989 (9th Cir. 1997)
(considering summary judgment in a Bivens1 suit). On review, the appellate court
must determine, viewing the evidence in the light most favorable to the nonmoving
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
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party, whether there are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004). A district court’s decision to grant
summary judgment on the ground of qualified immunity is also reviewed de novo.
See Garcia v. Cty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011).
We affirm the district court as to the Olympia Defendants. They are entitled
to qualified immunity for the July 27, 2007, detention and arrest of Plaintiff
Berryhill, the pepper spraying of Plaintiff Dunn on November 8, 2007, pepper
spraying of Plaintiff Grande sometime between November 7 and 9, 2007, pepper
spraying of Plaintiffs Robbins, Garfield, Grande and Berryhill on November 10,
2007, pepper spraying of Plaintiff Grande on November 13, 2007, and the arrests
of Plaintiffs Panagacos and Robbins on November 13, 2007. As to each episode,
the Plaintiffs failed to provide sufficient evidence to allow a reasonable jury to
conclude that the defendants’ conduct violated an established constitutional right.
Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016) (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)).
We also affirm the district court’s summary judgment order as to the
Tacoma Defendants. First, there is insufficient evidence to demonstrate that the
Tacoma Defendants violated the Plaintiffs’ privacy rights by infiltrating the Oly22
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listserv, which was shared with third parties. There is no evidence that the listserv
was private or that the Plaintiffs intended it to be protected by attorney-client
privilege. Second, the Defendants are entitled to qualified immunity for the alleged
constitutional violations when arresting Plaintiffs Berryhill and Dunn. Third,
Plaintiff Crespo also failed to prove facts sufficient to demonstrate either that the
video camera installed two blocks from his home violated his expectation of
privacy or that the Tacoma Defendants defamed him in a conversation with his
landlord. Fourth, the Washington constitutional claims and the Fifth and Sixth
Amendment claims are waived since Plaintiffs failed to respond to the motion at
the summary judgment stage. United States v. Carlson, 900 F.2d 1346, 1349 (9th
Cir. 1990) (holding matters not considered by the district court may not be raised
for the first time on appeal.). Finally, Plaintiffs have failed to demonstrate the
Defendant’s employees or agents acted pursuant to an official custom, pattern or
policy that permits deliberate indifference to, or violates, the plaintiff’s civil rights;
or that the entity ratified the unlawful conduct. See Monell v. Dep’t of Soc. Servs.
of New York, 436 U.S. 658, 690–91 (1978); Larez v. City of Los Angeles, 946 F.2d
630, 646–47 (9th Cir. 1991).
Plaintiffs’ Bivens actions for First and Fourth Amendment violations also
fail. “Undercover operations, in which the agent is a so-called ‘invited informer,’
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are not ‘searches’ under the Fourth Amendment.” United States v. Mayer, 503 F.3d
740, 750 (9th Cir. 2007) (quoting United States v. Aguilar, 883 F.2d 662, 701 (9th
Cir. 1989)). Therefore, Towery and Rudd could not have violated the Fourth
Amendment during at least part of their surreptitious investigation. Plaintiffs have
also failed to demonstrate that, if violating the Posse Comitatus Act does amount to
a Fourth Amendment violation, this was clearly established at the time of the
Defendants actions. Mitchell, 818 F.3d at 443. As a result, the Defendants are
entitled to qualified immunity.
Further, no First Amendment violation exists where the informant conducts
the investigation “in good faith; i.e. not for the purpose of abridging the First
Amendment freedoms” and “adhere[s] scrupulously to the scope of a defendant’s
invitation to participate in the organization.” Mayer, 503 F.3d at 750 (quoting
Aguilar, 883 F.2d at 705). With regard to the “good faith” test, “[i]n order to
demonstrate a First Amendment violation, a plaintiff must provide evidence
showing that ‘by his actions [the defendant] deterred or chilled [the plaintiff’s]
political speech and such deterrence was a substantial or motivating factor in [the
defendant’s] conduct.’” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283,
1300 (9th Cir. 1999) (second, third, and fourth alternations in original) (quoting
Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994)). Plaintiffs have failed to
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meet this burden. They have produced no evidence that would demonstrate that the
desire to deter Plaintiffs’ speech was a substantial motivator for Defendants
Towery and Rudd.
Plaintiffs’ request that confidential documents be unsealed is DENIED. The
National Lawyers Guild, et al.’s Motion to File as Amicus Curiae and to Extend
Time to File is GRANTED (Dkt. 99). Plaintiffs’ Motion to File an Addendum is
DENIED (Dkt. 108). We reverse the district court’s award of costs to Defendants.
Each side shall bear its own costs on appeal.
For the foregoing reasons, the district court’s summary judgment order is
AFFIRMED IN PART and REVERSED IN PART.
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