Bravo v. City of Santa Maria

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER BRAVO, SR.; HOPE BRAVO; 

E. B., a minor by her Guardian ad

Litem Sara Gonzales,

Plaintiffs-Appellants,

v.

CITY OF SANTA MARIA; DANNY R. No. 09-55898

MACAGNI, Santa Maria Police

D.C. No.

Chief; LOUIS TANORE, Santa Maria

Police Detective; LARRY RALSTON,  2:06-cv-06851-

Santa Maria Police Lieutenant; FMC-SH

COUNTY OF SANTA BARBARA; SANTA OPINION

BARBARA COUNTY SHERIFF’S

DEPARTMENT; JIM ANDERSON, Santa

Barbara County Sheriff; DON

PATTERSON, Santa Barbara County

Commander,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, District Judge, Presiding

Argued and Submitted

May 5, 2011—Pasadena, California

Filed December 9, 2011

20909

20910 BRAVO v. CITY OF SANTA MARIA

Before: Stephen Reinhardt and Michael Daly Hawkins,

Circuit Judges, and Brian M. Cogan, District Judge.*

Opinion by Judge Hawkins

*The Honorable Brian M. Cogan, United States District Judge for the

Eastern District of New York, sitting by designation.

BRAVO v. CITY OF SANTA MARIA 20913

COUNSEL

Donald W. Cook (argued), and Robert Mann (briefed), Los

Angeles, California, for the plaintiffs-appellants.

Richard R. Terzian (argued and briefed), Burke, Williams and

Sorensen, Los Angeles, California, for defendants-appellees

City of Santa Maria, Danny R. Macagni, Santa Maria Police

Chief, Louis Tanore, Santa Maria Police Detective, and Larry

Ralston, Santa Maria Police Lieutenant.

Jake Stoddard, Chief Deputy, and Jordan Sheinbaum, Deputy

County Counsel, Santa Barbara, California, (both briefed) for

defendants-respondents the County of Santa Barbara, the

Santa Barbara Sheriff’s Department, Sheriff Jim Anderson

and Commander Don Patterson.

20914 BRAVO v. CITY OF SANTA MARIA

OPINION

HAWKINS, Senior Circuit Judge:

Hope Bravo and Javier Bravo Sr., along with their minor

granddaughter E.B. (collectively “the Bravos”), appeal the

adverse summary judgment grant in their 42 U.S.C. § 1983

action arising out of the nighttime SWAT team search of their

home for weapons suspected of being used in a drive-by

shooting and stored in the Bravo home by their son, Javier

Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth

Amendment rights were violated by the issuance and execu-

tion of a search warrant whose application failed to disclose

that Javier Jr. was at that time, and for over six months had

been, incarcerated in the California prison system and there-

fore not only was not present in the Bravo home, but more-

over could not have been involved in the shooting or the

storage of weapons used in it. Because the Bravos presented

sufficient evidence establishing a genuine issue as to whether

Santa Maria Police Department (“SMPD”) Detective Louis

Tanore’s (“Tanore”) omission of this material fact was inten-

tional or reckless, as opposed to merely negligent, we reverse

the summary judgment grant in his favor and remand.

BACKGROUND FACTS AND PRIOR PROCEEDINGS

I. Background1

A. Obtaining the Warrant

The series of events that culminated in the search of the

Bravo home began with the SMPD’s investigation of an April

21, 2006 drive-by shooting in the unincorporated Tanglewood

area of Santa Maria, California. Shots were fired from a vehi-

cle into an occupied home, striking and injuring a young boy.

1

The facts are derived, in large part, from the district court’s summary

judgment rulings.

BRAVO v. CITY OF SANTA MARIA 20915

SMPD Gang Suppression Team (“GST”) Detectives Tanore

and Eligil Lara (“Lara”) were among those responsible for

crime scene investigation and witness interviews. Together,

they interviewed the victim and other occupants of the tar-

geted home, learning from the witnesses that they were for-

merly associated with the Tangas gang and believed the

shooting was, in part, a reaction to their disassociation from

the gang.

Two of the witnesses recognized the car from which the

shots were fired as belonging to a Tangas member and recog-

nized a man’s voice calling out from the car as that of another

member. The witnesses suggested that fellow Tangas mem-

bers not directly involved in the shooting would likely be stor-

ing the weapons used, as was the Tangas’ customary practice.

The witnesses then provided Tanore and Lara with a list of

between twelve and fifteen names, including Javier Jr.’s, of

alleged Tangas members believed to be closely associated

with the suspected shooters.

Based on this and other information, Tanore prepared an

affidavit in support of a “multiple location gang association

warrant,” which SMPD obtained four days later from a Santa

Barbara County Superior Court Judge. The warrant was

sealed for the informants’ protection and authorized search of

seven individuals suspected of harboring weapons and evi-

dence relating to the drive-by shooting, as well as search of

those persons’ residences and vehicles, and search of any per-

sons or vehicles present at the time of the warrant’s execution.

The warrant authorized the seizure of guns of the caliber used

at the shooting, all other firearms, ammunition, and casings,

and any indicia of gang membership. In addition, the issuing

judge granted Tanore’s request that the search warrant be

endorsed for nighttime service “due to the severity of this

investigation and the fact that the subjects involved in this

investigation are all Tangas (Tanglewood) gang members,”

and based on Tanore’s belief that “the ability to obtain the

element of surprise with gang members will lessen the chance

20916 BRAVO v. CITY OF SANTA MARIA

for injury to the Officers, community, and the subjects we are

searching.”

Tanore’s affidavit listed Javier Jr.’s address as the Bravo

residence and contained a brief summary of Javier Jr.’s crimi-

nal history report, commonly known as a “rap sheet.” The

affidavit specifically noted Javier Jr.’s recent conviction for

violation of California Penal Code § 496(A), receiving stolen

property, but failed to mention that Javier Jr. had been sen-

tenced and was over six months into serving a two-year sen-

tence in state prison for that crime. Deposed in this litigation,

Tanore admits he obtained Javier Jr.’s criminal history from

his rap sheet and may have seen the two-year sentence entry,

which appeared just two lines below the conviction entry, but

does not recall with certainty whether he observed it or not.

He further testified that, in any event, even if he had seen the

sentence on Javier Jr.’s rap sheet, ordinarily it “wouldn’t be

something [he] would check into.”

Detective Lara testified that he called the Santa Barbara

County Sheriff’s Office (“SBSO”) substation, consistent with

standard SMPD practice, to ascertain the custody status of the

individuals named in the warrant application and was told by

an unidentified substation employee that Javier Jr. was not in

custody. Upon learning that James Franklin, another suspect

originally named in the warrant application, was in custody,

the officers removed his name from the application. No sub-

station employee, however, recalls receiving such a call from

Lara. Furthermore, several SBSO employees explained that

their database contains only information on persons in county

jail, not those in state prison, and that the only way to deter-

mine a person’s state custody status is to call the state prison

system’s Inmate Locator number. No SMPD officer claims to

have taken any other action to determine whether Javier Jr. or

any of the other named individuals was in state custody at the

time.

BRAVO v. CITY OF SANTA MARIA 20917

B. Executing the Warrant

The search warrant covered seven homes, several of which

were located in Tanglewood, an unincorporated area just out-

side the Santa Maria city limits and patrolled by the SBSO.

In order to execute the search warrant on all seven locations

simultaneously, the SMPD asked the SBSO to assist with

SWAT execution on two of the Tanglewood homes, including

the Bravo residence. SBSO agreed to use its Special Enforce-

ment Team, but ultimately determined it could not adequately

execute the warrant simultaneously on both Tanglewood resi-

dences. SBSO therefore asked the Santa Barbara Police

Department (“SBPD”) SWAT team to serve the warrant on

the Bravo residence and turned over all materials it had gath-

ered in the course of scouting the mission, which included

Javier Jr.’s criminal history, a record of his former encounters

with SBSO, and photographs of the Bravo residence.

The SBPD SWAT team participated in final briefings the

evening of April 25, 2006 and early in the morning of April

26, 2006 prior to serving the warrant on the Bravo residence.

Several SBPD officers testified that they were given a

detailed briefing during which they learned that Javier Jr. kept

a machete, had violently resisted arrest on a previous occa-

sion, and that thirty to forty individuals might be present in

the home. No mention was made of Javier Jr.’s custody status.

After the briefing, at approximately 5:30 am, the SBPD

SWAT team served the warrant. Allowing but a few seconds

between announcing their presence and breaching the door,

the SWAT team entered the Bravos’ home by shooting off the

front door locks and deploying two “flashbang” grenades, or

light-sound diversionary devices, outside the back door. Mr.

Bravo was sleeping in the living room and awoke to find three

masked officers dressed in black, pointing their guns at him.

Mrs. Bravo and then-eight-year-old E.B. awoke to the sounds

of people running and screaming and ran into the bathroom

for safety. An officer kicked the bathroom door open and

20918 BRAVO v. CITY OF SANTA MARIA

pointed a gun at them, shouting at them to lie flat with their

stomachs on the ground. After a few minutes, an officer told

Mrs. Bravo and E.B. they could get up and sit on the bed, at

which point Mrs. Bravo told them her son was in jail and that

they would find a recent letter from him on the dining room

table. The officers then instructed Mrs. Bravo and E.B. to join

Mr. Bravo in the living room.

After the SBPD SWAT team looked at Javier Jr.’s letter

from prison and realized he was not present, they stopped ask-

ing for him and turned the scene over to the SMPD to conduct

a search of the premises. The SMPD officers seized several

items from the home, including letters from Javier Jr., photo-

graphs, and drawings that Javier Jr. had completed in prison,

but no weapons. During this time, the Bravos remained

detained in their living room, but at no point did the SMPD

officers handcuff, strike, or touch the Bravos. At one point,

Mr. Bravo began experiencing chest pains, and officers

offered to call an ambulance, but Mr. Bravo did not want to

leave Mrs. Bravo and E.B. alone in the house. Altogether the

officers remained in the Bravos’ home for approximately

thirty minutes. Neither Detective Tanore nor Detective Lara

were involved in the actual execution of the warrant. They

learned of Javier Jr.’s custody status shortly after the warrant

was executed, but Detective Lara testified in his deposition

that he did not become aware that Javier Jr.’s two-year sen-

tence was listed on his rap sheet until after this litigation

began.

II. Procedural History

The Bravos brought suit under § 1983, § 1985, and a vari-

ety of state laws against the City of Santa Maria, Santa Bar-

bara County, the City of Santa Barbara, and individual

officers from each of the law enforcement agencies. After the

City of Santa Barbara Defendants appealed on qualified

immunity grounds from an adverse grant of summary judg-

BRAVO v. CITY OF SANTA MARIA 20919

ment,2 the Bravos settled with them, and those defendants

were dismissed from this suit.

On cross-motions for summary judgment, the district court

granted the City of Santa Maria Defendants and the County

of Santa Barbara Defendants summary judgment on all

claims. The Bravos timely appealed the § 1983 claims only.

The City of Santa Maria Defendants include Tanore, Santa

Maria Police Lieutenant Larry Ralston (“Ralston”), Santa

Maria Police Chief Denny R. Macagni (“Macagni”), and the

City of Santa Maria itself. The only remaining defendants

from the County of Santa Barbara are the County itself and

the SBSO.3

STANDARDS OF REVIEW

We review the district court’s grant of summary judgment

de novo. Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir.

2010). Viewing the evidence and drawing all inferences in the

light most favorable to the non-moving party, we must deter-

mine whether any genuine issues of material fact remain and

whether the district court correctly applied the relevant sub-

stantive law. Id.; see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 253 (1986). If a rational trier of fact could resolve

2

The district court granted summary judgment in favor of the Bravos

against the Santa Barbara police officers upon determining that the offi-

cers’ forcible entry into the Bravos’ home failed to comply with the

knock-and-announce requirements clearly established under the Fourth

Amendment and that the officers were not entitled to qualified immunity.

The district court did not find Monell liability against the City of Santa

Barbara. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

3

Although the Bravos’ original complaint names individual officers

from the SBSO, the Bravos neither opposed those individuals’ motions for

summary judgment below nor filed their own motion for summary judg-

ment against them, thereby waiving any right to appeal the district court’s

grants of summary judgment with respect to them. See Davis v. City of Las

Vegas, 478 F.3d 1048, 1058-59 (9th Cir. 2007); USA Petroleum Co. v.

Atlantic Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994).

20920 BRAVO v. CITY OF SANTA MARIA

a genuine issue of material fact in the nonmoving party’s

favor, the court “may not affirm a grant of summary judgment

. . . because credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Nelson v. City

of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (internal quota-

tion marks and alterations omitted).

DISCUSSION

I. Claims Against the City of Santa Maria Defendants

A. Invalid Search Warrant

[1] Just as the Fourth Amendment prohibits warrantless

searches generally, so too does it prohibit a search conducted

pursuant to an ill-begotten or otherwise invalid warrant. See

U.S. Const. amend. IV; Millender v. Cnty. of L.A., 620 F.3d

1016, 1024 (9th Cir. 2010) (en banc) (“Even when only a por-

tion of a search warrant is invalid, the subject of the search

suffers a constitutional violation.”). The Bravos argue that the

search warrant for their home was invalid because it was

obtained through the intentional or reckless omission of facts

“required to prevent technically true statements in the affida-

vit from being misleading.” Liston v. Cnty. of Riverside, 120

F.3d 965, 973 (9th Cir. 1997) (citing United States v. Stanert,

762 F.2d 775, 781, as amended, 769 F.2d 1410 (9th Cir.

1985)).

[2] To survive summary judgment on a claim of judicial

deception, a § 1983 plaintiff need not establish specific intent

to deceive the issuing court. See Lombardi v. City of El Cajon,

117 F.3d 1117, 1124 (9th Cir. 1997). Rather, the plaintiff

must (1) establish that the warrant affidavit contained misrep-

resentations or omissions material to the finding of probable

cause, and (2) make a “substantial showing” that the misrep-

resentations or omissions were made intentionally or with

reckless disregard for the truth. See Ewing v. City of Stockton,

BRAVO v. CITY OF SANTA MARIA 20921

588 F.3d 1218, 1223-24 (9th Cir. 2009); accord Butler v. Elle,

281 F.3d 1014, 1024 (9th Cir. 2002); Liston, 120 F.3d at 973-

74. If these two requirements are met, the matter must go to

trial. Liston, 120 F.3d at 973.

The district court concluded that the omission of Javier Jr.’s

custody status was not material and that in any event the Bra-

vos presented no evidence to support an inference of inten-

tional or reckless conduct on Tanore’s part. We disagree on

both counts.

1. A Material Omission

We review de novo the district court’s conclusion that Tan-

ore’s omission of Javier Jr.’s custody status was not material

to a finding of probable cause. See id.; Butler, 281 F.3d at

1024 (“Materiality is for the court . . . .” (citing Hervey v.

Estes, 65 F.3d 784, 789 (9th Cir. 1995))). To determine the

materiality of omitted facts, we consider “whether the affida-

vit, once corrected and supplemented, establishes probable

cause.” Ewing, 588 F.3d at 1224; accord Liston, 120 F.3d at

973. If probable cause remains after amendment, then no con-

stitutional error has occurred. See Ewing, 588 F.3d at 1224;

Liston, 120 F.3d at 973-74.

[3] Here, the affidavit on its face easily established a “fair

probability” that the evidence sought would be found, had

Javier Jr. actually resided at the Bravo residence. See Illinois

v. Gates, 462 U.S. 213, 238 (1983). Tanore verified that the

Bravo home was Javier Jr.’s last-known residence based on

DMV records, prior search warrants, SBSO records, and the

confidential informants’ personal knowledge. See Liston, 120

F.3d at 973 (finding that the utility records, officer surveil-

lance, and DMV records included in a warrant application

ordinarily would have provided a sufficient basis for estab-

lishing probable cause). Furthermore, Tanore permissibly

relied on the witnesses’ confidential information regarding the

Tangas’ practice of storing weapons for one another, which

20922 BRAVO v. CITY OF SANTA MARIA

was consistent with his own expertise and knowledge of the

gang’s operations. Finally, Tanore had probable cause to

believe Javier Jr. was affiliated with the Tangas based not

only on the confidential informants’ tips, but also on SBSO

records verifying Javier Jr.’s criminal history in connection

with other Tangas gang members. The district court therefore

properly rejected the Bravos’ alternative argument that, even

absent judicial deception, the warrant lacks sufficient indicia

of reliability and is facially invalid due to lack of particularity.

[4] Nonetheless, we must ask whether probable cause

remains once the affidavit is supplemented with the chal-

lenged omission—here, Javier Jr.’s two-year sentence

imposed over six months prior to the incident occasioning the

search warrant, and his consequent incarceration in state

prison at the time of the drive-by shooting and of the war-

rant’s execution. We conclude that the corrected affidavit

could not establish probable cause for the search and espe-

cially does not meet the heightened standard of justification

required for nighttime SWAT service.4

[5] The district court reasoned that Javier Jr.’s presence

was immaterial because the warrant was not for his arrest but

only to search for evidence related to the April 21 shooting.

This fact, however, was highly material to the search, which

authorized the seizure of evidence relating to the April 21

shooting. Javier Jr.’s custody status meant not only that he

would not be present in the Bravo residence at the time of the

search, but that he could not have been involved in the shoot-

4

In addition to faulting omission of Javier Jr.’s two-year state prison

sentence, the Bravos assert error in a variety of other omissions that

resulted in a failure to show: (1) when Javier Jr. actually lived at the Bravo

residence; (2) that past searches for Javier Jr. at the Bravo residence had

been conducted years earlier; (3) that Javier Jr. did not have a current driv-

er’s license; and (4) that SMPD records did not identify Javier Jr. as a

gang member in his “Mugshot Profile.” While these facts bear on the exis-

tence of probable cause, the district court did not err in concluding that

none is on its own material for purposes of a judicial deception claim.

BRAVO v. CITY OF SANTA MARIA 20923

ing or in concealing the evidence. Tanore had no evidence

that Mr. and Mrs. Bravo or E.B. were involved in the April

21 shooting or that during a period in which Javier Jr. was not

residing in their home they would have assisted Tangas gang

members in concealing evidence, and specifically in conceal-

ing evidence from the shooting. The generalized statements in

the affidavit that it is “common” for families of gang mem-

bers to assist other members of the gang are insufficient to

support probable cause to search the Bravos’ home. See

United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir.

2011) (stating that “an assumption that most sixteen-year-old

passengers have identification does not lead to probable cause

to search every car carrying a teenager absent some individu-

alized suspicion regarding the teenager, the vehicle in ques-

tion, and the crime at issue”); United States v. McCarty, 648

F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are

ordinarily unreasonable in the absence of individualized sus-

picion of wrongdoing, and the circumstances under which a

warrantless search not supported by probable cause may be

considered reasonable under the Fourth Amendment are very

limited.”) (internal quotation marks and citations omitted).

[6] Moreover, the warrant also authorized the search of

any and all firearms, ammunition, casings, cartridges, clean-

ing equipment, or scabbard of any type of firearm found on

the premises during the warrant’s execution, and any indicia

of gang membership or affiliation with any gang, including

writings, photographs, news clippings, or videos depicting

persons, vehicles, weapons, clothing, handsigns, or locations

appearing relevant to gang membership. Defendants’ only

basis for seizing indicia of gang association and weapons

other than the caliber handguns suspected of use in the drive-

by shooting was to gather evidence of Javier Jr.’s suspected

violation of California Penal Code § 186.22(a) (“Street Ter-

rorism Enforcement and Prevention Act”). That statutory pro-

vision makes guilty of a felony any person who “actively

participates in any criminal street gang with knowledge that

its members engage in or have engaged in a pattern of crimi-

20924 BRAVO v. CITY OF SANTA MARIA

nal gang activity, and who willfully promotes, furthers, or

assists in any felonious criminal conduct by members of that

gang,” as defined in § 186.22(f). Cal. Penal Code § 186.22(a).

Probable cause must support the search for and seizure of all

items described in the warrant. See Millender, 620 F.3d at

1024. Tanore had no evidence that Mr. and Mrs. Bravo or

E.B. were gang members of any kind. Probable cause to

search broadly for any and all guns, ammunition, and indicia

of gang affiliation therefore was predicated entirely on Javier

Jr.’s own suspected involvement in hiding weapons for other

gang members.

[7] Furthermore, once the affidavit was corrected and sup-

plemented with the missing information about Javier Jr.’s cus-

tody status, even if we were to conclude that cause existed for

a search, there would still be no basis for authorizing night-

time service. A nighttime incursion by a SWAT force is a far

more serious occurrence than an ordinary daytime intrusion

pursuant to a regular warrant and therefore requires higher

justification beyond mere probable cause to search. See

United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir.

2004) (“[T]he mere likelihood that drugs or weapons will be

found at a particular premises does not justify a no-knock or

nighttime execution of a search warrant.”). Were this not the

case, then any showing of probable cause to search would jus-

tify nighttime intrusion by a team of SWAT officers. The

Supreme Court has held clearly that a no-knock entry is justi-

fied only by “exigent circumstances,” which include when

officers “have a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances,

would be dangerous or futile, or that it would inhibit the

effective investigation of the crime by, for example, allowing

the destruction of evidence.” Richards v. Wisconsin, 520 U.S.

385, 394 (1997).

[8] We see no reason not to apply the same standard to

SWAT officers’ nighttime searches, which both constitute

much greater intrusions on one’s privacy than ordinary day-

BRAVO v. CITY OF SANTA MARIA 20925

time searches and carry a much higher risk of injury to per-

sons and property. See Alexander v. City & Cnty. of San

Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994) (explaining

that a jury might conclude that deployment of a SWAT team

for the purpose of inspecting property was excessive); Estate

of Smith v. Marasco, 430 F.3d 140, 149 (3d Cir. 2005) (“[A]

decision to employ a SWAT-type team can constitute exces-

sive force if it is not objectively reasonable to do so in light

of the totality of the circumstances.” (internal quotation marks

omitted)); Holland ex rel. Overdorff v. Harrington, 268 F.3d

1179, 1190 (10th Cir. 2001) (“[T]he decision to deploy a

SWAT team to execute a warrant must be ‘reasonable’

because it largely determines how the seizure is carried out,

thereby determining the extent of the intrusion on the individ-

ual’s Fourth Amendment interests.”); Rush v. Mansfield, 771

F. Supp. 2d 827, 858-59 (N.D. Ohio 2011); Solis v. City of

Columbus, 319 F. Supp. 2d 797, 808-09 (S.D. Ohio 2004).

[9] Had Javier Jr.’s incarceration been disclosed and prob-

able cause for a search still existed, no reasonable cause for

nighttime service would have remained under the totality of

the circumstances. Defendants argue that disclosing Javier

Jr.’s two-year sentence would not be dispositive of his cus-

tody status because presentence credits and good time or work

credits might have resulted in an earlier release date. But the

appropriate inquiry is not whether Javier Jr.’s two-year sen-

tence dispositively “established” he was still in custody, but

rather whether that fact would have prompted the issuing

judge to “requir[e] additional information” or “impos[e] spe-

cific restrictions on [the warrant’s] execution.” Liston, 120

F.3d at 974.

In Liston, the Court found that an officer’s failure to dis-

close in a search warrant application the presence of “For

Sale” and “Sold” signs on the target property constituted a

material omission. Although the signs on their own may not

have established dispositively that the house belonged to new

owners, they would have “put a reasonable magistrate on

20926 BRAVO v. CITY OF SANTA MARIA

notice that a change in occupancy would be occurring in the

near future.” Id. Similarly here, disclosure of Javier Jr.’s two-

year sentence would have put the issuing judge on notice that

Javier Jr. could still be in custody. Had the omitted facts of

Javier Jr.’s two-year sentence and custody status been

included, it is extremely doubtful that an issuing judge would

simply have issued the warrant or authorized nighttime ser-

vice without more information. See id.

Finally, the defendants’ reliance on Motley v. Parks, 432

F.3d 1072 (9th Cir. 2005) (en banc), is misplaced. Motley did

not hold that custody status is immaterial to whether officers

have probable cause to search a person’s residence; indeed,

probable cause to search was not at issue in that case. Motley

held only that where a parolee has consented to warrantless

searches of his residence and property at any time as a condi-

tion of his parole, law enforcement has a constitutional obli-

gation to ensure they have probable cause to believe they are

at the right house. Id. at 1079-80. Javier Jr. was not a parolee,

and no resident of the Bravo home consented to a warrantless

search. Motley therefore does not absolve defendants of their

constitutional obligation to establish probable cause to search

for all items described in the search warrant.

2. Intentional or Reckless

We next consider whether the Bravos have made a substan-

tial showing that Tanore deliberately or recklessly omitted

Javier Jr.’s custody status. Viewing the evidence and drawing

all inferences in the light most favorable to the Bravos, as we

must, we conclude that the district court erred in finding Tan-

ore “negligent at most.”

To survive summary judgment, the Bravos need only make

a substantial showing of a deliberate or reckless omission, not

provide “clear proof.” Liston, 120 F.3d at 974 (internal quota-

tion marks omitted). Summary judgment is improper where

“there is a genuine dispute as to the facts and circumstances

BRAVO v. CITY OF SANTA MARIA 20927

within an officer’s knowledge or what the officer and claim-

ant did or failed to do.” Hopkins v. Bonvicino, 573 F.3d 752,

763 (9th Cir. 2009) (internal quotation marks and citation

omitted); see Butler, 281 F.3d at 1024 (“[S]tate of mind is for

the jury.” (citing Hervey, 65 F.3d at 789)).

[10] The Bravos have made the required substantial show-

ing that Tanore may have intentionally or recklessly omitted

Javier Jr.’s two-year sentence from his affidavit. Tanore stated

in his deposition testimony that he reviewed Javier Jr.’s rap

sheet in preparing the affidavit, and though he could not recall

with certainty whether he had observed Javier Jr.’s two-year

sentence, imposed on September 9, 2005, he acknowledged

that he may have. The two-year sentence appears on the rap

sheet a mere two lines below the “convicted” disposition for

the predicate offense of receiving stolen property in violation

of California Penal Code § 496(A)—a fact Tanore thought

important enough to include in his affidavit.

[11] For summary judgment review purposes, the Bravos

are entitled to the reasonable inference that Tanore in fact

observed the two-year sentence on the rap sheet and either

deliberately or recklessly failed to disclose it in his affidavit.

Tanore’s testimony that, even if he had observed the state

prison sentence on Javier Jr.’s rap sheet, it ordinarily

“wouldn’t be something [he] would check into,” underscores

his apparent disregard for the importance of full disclosure of

information to the issuing magistrate. Finally, although he

claims that, in this instance, he actually did look into the war-

rant targets’ custody status by having Detective Lara call the

SBSO substation and ask the custody officer to “run the

names” of the targets, the Bravos submitted evidence contra-

dicting such claims: no custody officer who was working dur-

ing the relevant time period recalls receiving a call from Lara.

And SBSO custody officers declared that, even if they had

received such a request, their standard database search would

reveal only whether the subject was currently in county jail,

not whether that person had been transferred to state prison.

20928 BRAVO v. CITY OF SANTA MARIA

Based on this record, a reasonable jury could conclude that

Tanore intentionally or recklessly omitted the two-year-

sentence information from the affidavit, and the Bravos pre-

sented ample evidence to support that inference. In opposing

summary judgment, the Bravos submitted deposition testi-

mony by Lieutenant Ralston, who stated “that a reasonably

competent police officer, had he seen [the two-year sentence

on Javier Jr.’s rap sheet], would have done additional follow-

up.” Ralston further testified that he told Tanore and Lara he

“was disappointed that they didn’t pay attention to [the two-

year sentence] or didn’t see it” because he thought it was

“pertinent to the investigation,” “was something that should

have been observed,” and was “important to know . . . .

Important enough to tell the judge when you were seeking the

warrant.” Similarly, the SBSO Sheriff’s Commander testified

that “if the reason for the gang association warrant was

because [Javier Jr.] was associated with that residence and I

knew that he was not, in fact, there, that he was in prison, I’d

ask a lot more questions about the warrant and the people who

lived there and do some more background checks and find out

why, in fact, that residence had been identified as a possible

search warrant.” All this and other evidence in the record sug-

gests that Tanore’s omission of this material fact was more

than “mere negligence.”

[12] Given the importance of the custody status to the find-

ing of probable cause for the search and to the justification for

nighttime service, a reasonable jury could conclude that Tan-

ore’s failure to mention Javier Jr.’s two-year sentence or to

follow up and inquire about Javier Jr.’s custody status

amounted to at least reckless disregard for the truth. Summary

judgment was therefore improperly granted.

B. Unreasonable Manner of Execution

The Bravos also seek to hold the Santa Maria Defendants

liable for the unreasonable manner in which the SBPD SWAT

team served the warrant, arguing that the manner of execution

BRAVO v. CITY OF SANTA MARIA 20929

was a “natural consequence[ ]” of SMPD’s decisions to

employ nighttime SWAT service. Lee v. Gregory, 363 F.3d

931, 935 (9th Cir. 2004) (holding a police officer responsible

for plaintiff ’s unlawful arrest even though he passed the war-

rant on to another officer); see also Liston, 120 F.3d at 981

n.13 (noting that an officer’s liability for the unlawful acts of

those who execute a warrant he obtained by judicial deception

“is governed by traditional tort law principles” (citing Van

Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)).

The Santa Maria Defendants vigorously contest this claim,

insisting they had no control or direction over the manner in

which SBPD served the warrant on the Bravo residence.

[13] Because the district court determined that the search

warrant was valid, it had no occasion to consider this ques-

tion. Rather than address it now, we remand for the district

court to consider in the first instance the extent to which the

Santa Maria Defendants might be liable for the warrant’s

unlawful manner of execution, even though service was made

by a different law enforcement agency acting in concert with

the SMPD. We recognize that “[t]ypically, of course, only one

or a few officers plan and lead a search, but more—perhaps

many more—help execute it.” Motley, 432 F.3d at 1081

(internal quotation marks omitted). However, while the offi-

cers tasked with executing a warrant are “generally entitled to

rely on information obtained from fellow law enforcement

officers” so long as such reliance is objectively reasonable,

id., “[t]he officers who lead the team that executes a warrant

are responsible for ensuring that they have lawful authority

for their actions” and cannot evade liability simply by dele-

gating responsibility to others, id.

[14] The district court did consider and reject the Bravos’

claim that the SMPD officers unlawfully detained them while

continuing to search their home, even after learning that

Javier Jr. was in custody, concluding that the “temporary

detention of the Bravos, while undoubtedly frightening and

humiliating to them, was a routine detention of residents in a

20930 BRAVO v. CITY OF SANTA MARIA

house while it was being searched for contraband pursuant to

a valid warrant.” To the extent the district court’s holding

regarding the lawfulness of the search rests on the premise

that SMPD officers were acting pursuant to a valid warrant,

it is remanded for further consideration in light of this Opin-

ion.

If a jury finds that Tanore intentionally or recklessly with-

held information about Javier Jr.’s custody status from the

issuing magistrate, the district court should apply traditional

tort law principles to determine the extent to which the Santa

Maria Defendants are liable for any constitutional injuries the

Bravos may have suffered as a “natural consequence[ ]” of the

judicial deception. Lee, 363 F.3d at 935 n.3; see Malley, 475

U.S. at 345 n.7 (rejecting an argument that “the judge’s deci-

sion to issue the warrant breaks the causal chain between the

application for the warrant and the improvident arrest”

because “the common law recognized the causal link between

the submission of a complaint and an ensuing arrest”); Mon-

roe v. Pape, 365 U.S. 167, 187 (1961) (“Section [1983]

should be read against the background of tort liability that

makes a man responsible for the natural consequences of his

actions.”), overruled on other grounds by Monell v. Dep’t of

Soc. Servs., 436 U.S. 658 (1978); Crumpton v. Gates, 947

F.2d 1418, 1423 (9th Cir. 1991) (observing that “[t]he

Supreme Court has sanctioned the resort to tort analogies in

establishing the elements of a section 1983 cause of action”);

Liston, 120 F.3d at 981 n.13; Restatement (Second) of Torts

§ 8A cmt. b (1965) (“If the actor knows that the consequences

are certain, or substantially certain, to result from his act, and

still goes ahead, he is treated by the law as if he had in fact

desired to produce the result.”).

C. Individual and Municipal Liability

The Bravos sued Tanore, Ralston, and Macagni in their

individual capacities and the City of Santa Maria under sev-

eral municipal liability theories. Because the district court did

BRAVO v. CITY OF SANTA MARIA 20931

not have occasion to reach these issues, we do not address

them here. See Golden Gate Hotel Ass’n v. City & Cnty. of

San Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994) (“As a

general rule, ‘a federal court does not consider an issue not

passed upon below.’ ”) (quoting Singleton v. Wulff, 428 U.S.

106, 120 (1976)).

II. Claims Against the County of Santa Barbara

Defendants5

A. Integral Participation

[15] The Bravos also contend that SBSO agents are liable

for the unreasonable manner in which the warrant was exe-

cuted by the SBPD SWAT team, arguing that the SBSO’s role

in initially scouting the Bravo residence amounted to “integral

participation” in the unlawful search. Their argument is with-

out merit.

Section 1983 liability extends to those who perform func-

tions “integral” to an unlawful search, even if their individual

actions do not themselves rise to the level of a constitutional

violation. See Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th

Cir. 2004); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.

1996). However, the “integral participant” doctrine does not

5

We have jurisdiction over the appeal concerning the County of Santa

Barbara Defendants pursuant to 28 U.S.C. § 1291. Even though the district

court failed to issue and enter on the docket a separate judgment on the

order granting the County of Santa Barbara Defendants summary judg-

ment, as was required, see Fed. R. Civ. P. 58(a)(1), 79(a), the district

court’s September 25, 2008 Order granting summary judgment “in favor

of all County Defendants . . . on all claims” and containing no equivocal

language regarding its finality (1) is a “full adjudication of the issues,” and

(2) “clearly evidences the judge’s intention that it be the court’s final act

in the matter.” Casey v. Albertson’s, Inc., 362 F.3d 1254, 1258 (9th Cir.

2004); accord Long v. Cnty. of L.A., 442 F.3d 1178, 1184 n.3 (9th Cir.

2006). “[N]either the Supreme Court nor this court views satisfaction of

Rule 58 as a prerequisite to appeal.” Kirkland v. Legion Ins. Co., 343 F.3d

1135, 1140 (9th Cir. 2003).

20932 BRAVO v. CITY OF SANTA MARIA

implicate government agents who are “mere bystanders” to an

unconstitutional search. Compare Blankenhorn v. City of

Orange, 485 F.3d 463, 481 n.12 (identifying as an integral

participant an officer who helped in handcuffing the plaintiff);

Boyd, 374 F.3d at 780 (same for officers who were “aware of

the decision to use the flash-bang, did not object to it, and par-

ticipated in the search operation knowing the flash-bang was

to be deployed”); James ex rel. James v. Sadler, 909 F.2d

834, 837 (5th Cir. 1990) (same for officers who provided

armed backup during unconstitutional search); Melear v.

Spears, 862 F.2d 1177, 1186 (5th Cir. 1989) (same for officer

who did not enter apartment but stood armed at the door dur-

ing the search); with Torres v. City of Los Angeles, 548 F.3d

1197, 1206 (9th Cir. 2008) (finding that an officer who nei-

ther instructed others to make the arrest nor was present dur-

ing the arrest was not an integral participant); Blankenhorn,

485 F.3d at 481 n.12 (same for an officer who arrived at the

scene after completion of allegedly unlawful arrest and an

officer who provided at most crowd control); Motley, 432

F.3d at 1082 (same for an officer who remained primarily in

the living room during an allegedly unlawful bedroom

search).

The district court correctly determined that SBSO agents

were “not even bystanders” to the search of the Bravo resi-

dence. The undisputed evidence establishes that no SBSO

agents were present during either the SBPD SWAT team’s

entry into the Bravos’ residence or the SMPD officers’ subse-

quent search of the property. To the contrary, the undisputed

evidence establishes SBSO’s own Special Enforcement Team

was at the exact same time executing the warrant for a differ-

ent Tanglewood residence. It is further undisputed that SBSO

neither had tactical command over service of the warrant on

the Bravo residence nor supervised the SBPD SWAT agents

in their execution of the warrant.

SBSO’s short-lived role with respect to the Bravo residence

was limited to conducting a background investigation on

BRAVO v. CITY OF SANTA MARIA 20933

Javier Jr. before handing responsibility for execution of the

warrant over to SBPD. “ ‘Effective and efficient law enforce-

ment requires cooperation and division of labor to function,”

and SBSO was “entitled to rely on information obtained from

[SMPD]” when it received the request to assist with nighttime

SWAT service of the Bravo residence warrant. Motley, 432

F.3d at 1081 (citing Whiteley v. Warden, 401 U.S. 560, 568

(1971)). SBSO was responsible neither for the decisions to

use SWAT forces and nighttime service nor for the specific

tactical decision to perform a no-knock entry, and thus it can-

not be liable for the constitutional violations that may have

occurred in the course of the warrant’s execution.6

B. Monell Liability

[16] The Bravos accuse the SBSO and the County of Santa

Barbara of maintaining a policy that permitted the unreason-

able use of SWAT tactics in violation of their Fourth Amend-

ment rights. However, because the Bravos fail to establish a

triable issue of fact as to any individual SBSO officer’s liabil-

ity under § 1983 for unconstitutional conduct, a fortiori, they

cannot establish that a policy or practice of the SBSO caused

any such constitutional violation. See City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986) (per curiam); Simmons v.

Navajo Cnty., 609 F.3d 1011, 1021 (9th Cir. 2010).

CONCLUSION

For the foregoing reasons, the summary judgment grant is

reversed with respect to Tanore and the case remanded for

further proceedings consistent with this Opinion, including

determining whether the Santa Maria Defendants may be lia-

6

While the Bravos attempt to restyle their “integral participation” claim

in their Reply Brief as one of supervisorial liability or proximate cause,

akin to the one they make against the City of Santa Maria Defendants,

they failed to make this argument below and it is deemed waived.

20934 BRAVO v. CITY OF SANTA MARIA

ble for the warrant’s unlawful execution. In all other respects,

the judgment of the district court is affirmed.7

AFFIRMED in part, REVERSED in part, and

REMANDED. Each party to bear its own costs on appeal.

7

All pending motions are denied.