Opposition Brief — Decena v. San Jose Charter of the Hells Angels Motorcycle Club

6

dogs, “[h]e was instructed to stay where he was.” Had the

Officers followed their usual practice, they would have

allowed the caretaker and the owner to control the dogs. The

Officers’ only explanation for not doing so -- “maintain[ing]

the element of surprise” — is utterly specious when one

considers the noise made by a rifle shot.

2. Using The Pepper Spray The Officers Carry

San Jose Officers were quick to point out that there are

other non-lethal means of dealing with belligerent dogs as

well, including the use of pepper spray. Officer Nieves, who

shot the Vieiras’ dogs, admitted that he had pepper spray

with him on January 21, 1998. He provided no explanation

for not using it.

3. Chasing The Dog Away Or Into An Enclosure

San Jose Officers also testified that they have dealt with

dogs they encountered in the past by shouting at them or

chasing them away, or into some enclosure. No explanation

was Offered as to why this non-lethal option was not planned

for or utilized in this case.

4. Utilizing An Animal Control Officer

Finally, Officers pointed out that one of the non-lethal

options available to them is to call upon a humane officer or

someone else trained to immobilize dogs. Officer Decena

testified that the Officers did not think of doing so in this

case until after the dogs were killed.

7

ARGUMENT

Petitioners do not contend that the Ninth Circuit’s

decision conflicts with a decision from another Circuit. Nor

do they contend that the Ninth Circuit has so far departed

from the accepted and usual course of judicial proceedings,

or sanctioned such a departure by a lower court, as to call

for an exercise of this Court’s supervisory power. Rather,

Petitioners assert that the Ninth Circuit misapplied a properly

stated rule of the law. Specifically, Petitioners argue that the

Ninth Circuit relied on an impermissibly broad and general

statement of “clearly established” law, a prong of the qualified

immunity analysis. In fact, it is Petitioners who seek to draw

distinctions between this case and firmly established

precedent that are far too fine. A reasonable officer in

Linderman’s and the San Jose Officers’ positions would have

known that his conduct violated Respondents’ Fourth

Amendment rights.

I. Sergeant Linderman Violated Respondents’ Clearly

Established Fourth Amendment Rights

A. The Scope of the Warrants

Long before January 20-21, 1998, when Linderman

obtained the warrants and directed the searches at issue here,

it was understood that the Fourth Amendment proscribes

searches and seizures that exceed a warrant’s scope. See;-e.2g.,.—-~—

Terry v. Ohio, 392 U.S. 1, 17-19 (1968) (“This Court has

held in the past that a search which is reasonable at its

inception may violate the Fourth Amendment by virtue of

its intoierable intensity and scope.”) (citing Kremen v. United

States, 353 U.S. 346 (1957); United States v. Di Re, 332 U.S.

581, 586-87 (1948); Go-Bart Importing Co. v. United States,

8

282 U.S. 344, 356-58 (1931)); United States v. Tamura, 694

F.2d 591, 594 (9th Cir. 1982); United States v. Penn, 647

F.2d 876, 882 n.7 (9th Cir. 1990); VonderAhe v. Howland,

508 F.2d 364, 369-70 (9th Cir. 1975).

“In determining whether or not a search is confined to

its lawful scope, it is proper to consider both the purpose

disclosed in the application for a warrant’s issuance and the

manner of its execution.” United States v. Rettig, 589 F.2d

418, 423 (9th Cir. 1979); see also Terry, 392 U.S. at 19

(“The scope of the search must be ‘strictly tied to and justified

by’ the circumstances which rendered its initiation

permissible.”); VonderAhe, 508 F.2d at 369 (“What is ‘overly

broad’ cannot be resolved in an abstract or academic manner

but only in relation to the facts, circumstances under, and

the purpose for, which the warrants were issued.”). The

reviewing court must also scrutinize the particular purpose

of a search when considering whether it was necessary to

damage property during the search’s execution. Lawmaster

v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997) (“[B]ecause

the touchstone of the constitutionality of an officer’s conduct

during -a search is reasonableness, when executing a search

warrant, an officer is limited to conduct that is reasonably

necessary to effectuate the warrant’s purpose.”); Ayeni v.

Mottola, 35 F.3d 680, 689 (2d Cir. 1994) (“Among the issues

that must be resolved at trial are not only the extent of

physical force and intrusive measures employed during the

search, but whether such measures were justified by the

purposes of the search.”), abrogated on other grounds by

Wilson v. Layne, 526 U.S. 603 (1999); Akhil Reed Amar,

Fourth Amendment First Principles, 107 Harv. L. Rev.

757, 804 (1994) (“Greater intrusiveness requires greater

justification.”).

9

Sergeant Linderman sought “any evidence of membership

in [sic] affiliation with, activity of, or identity of, any gang,

including but not limited to, any reference to ‘Hells Angels’” to

prove the sentencing enhancement codified in California Penal

Code section 186.22, which was alleged against a third party.

California Penal Code section 186.22(b) provides that a

defendant is eligible for a three-year sentence enhancement when

the prosecution proves that the defendant committed the crime

of conviction “for the benefit of, at the direction of, and in

association with a criminal street gang, with the specific intent

to promote, further and assist in criminal conduct by gang

members.” Cal. Pen. Code § 186.22(b). Section 186.22(b)(1)

specifies that the provision has three separate elements: (1) the

existence of a “criminal street gang”; (2) a conviction for a felony

committed for the benefit of, at the direction of, or in association

with that gang; and (3) that the crime of conviction was

committed with the specific intent to promote, further, or assist

in criminal conduct by gang members.

Proof of the first element, the existence of a “criminal street

gang,” itself requires proof of three separate elements: (1) an

ongoing organization, association or group of three or more

persons, whether formal or informal, which has a common name

or common identifying sign or symbol; (2) having as one of its

“primary activities” the commission of one or more of the

predicate offenses specified in section 186.22(e); and (3) whose

members individually or collectively engage in a “pattern of

criminal gang activity.” Cal. Pen. Code § 186.22(f); see also

People v. Louen, 17 Cal. 4th 1, 18 (1997). In its Order of July

13, 2001, the district court rejected Plaintiffs’ challenge to the

legality of the searches for Hells Angels indicia, finding that

Defendants had probable cause to search because such evidence

would have helped to make out the first of the three elements of

the “criminal street gang” sentencing enhancement, that the

10

Hells Angels is an ongoing organization of three or more

which has a common name or common identifying sign or

symbol. (Plaintiffs/Respondents have reserved their right to

appeal this order.)

To prove this first element of the sentencing

enhancement, one need only look at the substantial

admissible evidence in the public domain, including

Respondents’ website and United States Patent & Trademark

Office filings. In Mr. Tausan’s case, the prosecution proved

it by calling San Jose Police Officer Jorge Gil Blanco as an

“expert” on the Hells Angels. Officer Gil Blanco, who had

been surveilling San Jose Charter members and their

associates for more than eight years without ever making an

arrest, showed the jury generic pictures of Hells Angels and

public displays of their trademarked name to establish that

the group has a common name, identifying sign or symbol.

None of the property seized from Respondents was used to

prove anything at all.

B. The Inadequacy Of Linderman’s Case For

Exceeding the Scope of the Warrants _

Petitioner Linderman avoids discussing the necessity

for seizing “truckloads” of Respondents’ property, instead

arguing that he was “commanded” to do so by the language

_ of the warrant. This is nonsense.

The warrants call for “any” Hells Angels indicia to prove

California Penal Code section “186.22”. Identical language

is used in Linderman’s Affidavit in support of the warrants.

Linderman admitted at his deposition that he knew

the reference was to section 186.22(b), the sentencing

enhancement, which had been charged against a third party.

He knew that the evidence was relevant merely to prove that

\

11

the Hells Angels is an ongoing organization of three or more

having a common name or common identifying sign or

symbol.

The first definition of “any” in Merriam Webster’s

Collegiate Dictionary is “one or some indiscriminately of

whatever kind.” This is consistent with the way in which a

reasonable officer in Sergeant Linderman’s position would

have interpreted the term, particularly when he learned how

much “indicia” there was, and that Respondents’ property

would be damaged and/or destroyed if the officers were to

seize it all. See Andersen v. Maryland, 427 U.S. 463, 480

(1976)(law enforcement officers must read ambiguous

phrases in warrants to only authorize the search for and

seizure of evidence related to the purpose for which the

warrant was obtained).

Linderman, in contrast, chose to act unreasonably, and

now asks the Court to find that he had no choice because the

third definition of “any” in Merriam Webster’s is “all.’’ While

this argument might work for a search team member who

had not read the affidavit in support of the warrants and did

not know the limited purpose for which the evidence was

sought, it does not work for Linderman. Linderman did not

just read the affidavit, he wrote it. See Groh y. Ramirez,

540 U.S. 551, 561-564 (2004) (officer who wrote the warrant

affidavit and warrant forms could not escape liability by

blaming the authorizing magistrate). He knew the limited

purpose for which the evidence was sought. In directing the

searchers to go beyond what was necessary to fulfill this

purpose, he violated Respondents’ Fourth Amendment rights.

Dissenting Judge Bea argues that the majority

“minimizes the importance of the searches.” Linderman’s

12

App. 34 n.1. Judge Bea points out that the warrants refer to

“felonies” and California “Penal Code 186.22,” without

specifying the subsection. /d. Subsection 186.22(a) makes it a

felony to actively participate in a criminal street gang. Subsection

186.22(b) is the sentencing enhancement. But all this is beside

the point. Linderman knew that the evidence was pertinent only

to the sentencing enhancement. His affidavit in support of the

warrants did not even attempt to establish probable cause as to

the crime. The Complaint filed against Steve Tausan prior to

the searches alleged the sentencing enhancement and not the

crime. Linderman confirmed that he was going for the

“enhancement” and not the crime during his sworn deposition.

Thus, while it might be theoretically possible for an officer to

believe, based on the warrant, that he was searching for evidence

of a crime, Linderman could not have and did not believe this.

Respondents heartily agree with Judge Bea that the warrants

might be overbroad. But that hardly absolves Linderman, who

was responsible for drafting, obtaining and serving them. He

had actual knowledge of the limited purpose for which the

evidence was sought, actual knowledge that the officers

conducting the searches had found more than enough, and he

nevertheless gave the order: “Take everything.”

Linderman’s attempt to twist the Fourth Amendment’s

particularity requirement into a mandate that officers act more

intrusively than necessary is wholly unpersuasive. The purpose

of the particularity requirement is to prevent general searches

and to “assure[] the individual whose property is searched or

seized of the lawful authority of the executing officer, his need

to search, and the limits of his power to search.” Groh v. Ramirez,

540 U.S. at 561. Neither of these purposes would be served by

requiring officers to seize everything conceivably included

within a warrant’s coverage, even when it is unnecessary

13

to fulfill the purpose for which the evidence was sought.

To impose such a requirement would be to create a “new

rule,” not the reverse. As the Ninth Circuit had found in a

case decided 12 years before Linderman issued the order to

“take everything” in this case, “[t}he fact that the officers

did not seize all of the materials permitted by the warrant

does not mean that they possessed the type of unfettered

discretion that violates the fourth amendment.” United States

v. Hayes, 794 F.2d 1348, 1356 (9® Cir. 1986), cert. denied,

Hayes v. U.S., 479 U.S. 1086 (1987).

Finally, it is Linderman and not the Ninth Circuit whose

interpretation of the law is “unworkable” in practice. No

reasonable officer would believe that a trial judge would

permit the prosecution to introduce into evidence 115 patches,

65 wall plaques, a Pepsi machine, a refrigerator, a Bud Lite

pool table light, a safe, a cash register, a display case with a

Death’s Head sticker on it, a mail box, a street sign, nine

cardboard boxes full of t-shirts, a door, posters, road signs,

paintings, magazines and a concrete slab — and that’s just

what was seized from the clubhouse — plus a dozen Harley

Davidson motorcycles and scores of items similar to those

listed above that were seized from Respondents’ homes. The

Ninth Circuit has not created a “new rule” requiring officers

to make nuanced tactical distinctions best left to an attorney,

as Linderman argues. Linderman has been held accountabie

for failing to apply the judgment and common sense that the

Fourth Amendment requires any reasonable officer entrusted

with executing a search warrant to apply.

Linderman’s motion for summary judgment based on

qualified immunity was properly denied.

14

II. Officers Decena, Newman, Manion, Knox, Carney,

Messier, and Nieves Violated Respondents’ Clearly

Established Fourth Amendment Rights

It was well established at the time the Officers shot

Respondents’ dogs that the shooting of a dog by a police

officer is a seizure for Fourth Amendment purposes and is

thus subject to the “reasonableness” test. The Officers had a

week to plan the execution of the search warrants in this

case. San Jose had a policy and practice of avoiding shooting

dogs if at all possible, and these officers had managed to

avoid shooting dogs in other cases. Yet they made no realistic

_plan other than to shoot Respondents’ dogs. Their conduct

was, aS Judge Bea aptly put it, “outrageous.” “Clearly, a

reasonable officer [in these Officers’ position] would have

understood that his actions violated an established right of

the plaintiffs.” The Officers’ App. 31 (Bea, concurring).

The Officers’ effort to distinguish the numerous cases

confirming this principle by arguing that none of them

involved the shooting of a dog while executing a warrant is

specious. If anything, the cases, which involved the shooting

of dogs encountered by officers while on patrol or on an

emergency call, highlight the unreasonableness of the

Officers’ conduct in this case. There were no exigent

circumstances here. These officers were not faced with a split

second decision. They had a week to plan for their encounter

with the dogs. If officers responding on a moment’s notice

are required to act reasonably, these Officers certainly were.

The Officers’ motion for summary judgment based on

qualified immunity was properly denied.

15

CONCLUSION

The lower courts acted properly in denying Petitioners’

motions for summary judgment based on qualified immunity.

Petitioners’ conduct was unreasonable and it would have been

clear to an officer in these officers’ positions that it was

unreasonable. This Court should deny Linderman’s and the

San Jose Officers’ Petitions for Writs of Certiorari.

Respectfully submitted,

KAREN L. SNELL*

Attorney at Law

102 Buena Vista Terrace

San Francisco, CA 94117

(415) 225-7592

Nanci L. CLARENCE

CLARENCE & Dyer LLP

899 Ellis Street

San Francisco, CA 94109

(415) 749-1800

Attorneys for Respondents

* Counsel of Record