# Appendix — Technical Ordnance, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0838%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 534 U.S. 1084 ## Text CONTENTS OF APPENDIX Decisions and Orders Below Decision of the Eighth Circuit (March 26, 2001) ..............++. A-1 Decision of the District Court on Defendant Moore’s Motion to Dismiss (April 14, 1997).............ce:000+ A-20 Decision of the District Court on Defendant Moore's Motion for Reconsideration (May 19, 1997)......... A-37 Decision of the District Court on Defendant Moore's First Motion for Summary Judgment FI Sa PN sacainlcectiseciciitenisiisipeciiitna iat citiicciessiccnesinti A-41 Decision of the District Court on Defendant Moore's Second Motion for Summary Judgment RE. aly OOO E cians tiirccvcininsecervitvetesnentinctaiipepetidciacenintonpennianses A-59 Order of the Eighth Circuit Denying Rehearing RNR eter tae lay DO PEER ne eR TONE A-74 Text of Relevant Statutes and Regulations Pa aes UTI sercshaieldiisianisemensbcmssiabalbnmsnsicnensiesiolesnnenuininanioitn A-75 Fae es 1 Is vivsssncensidasiadsdievitiicaihabiesinianldibavenianianinlinataiwanesibite A-76 ae aan ED coecssincnsectsldnbeiclipsinisenesdeneniiandinkenginnniaiasansia A-82 Pleadings and Other Filings Below Plaintiffs’ First Amended Complaint (Apr. 10, 1996)......... A-84 Transcript of Motions Hearing (March 19, 1997)............. A-124 Memorandum from Trial Court Judge to Counsel (Oct. 29, 1999) Notice from the Clerk of the Eighth Circuit Court of Appeals to Counsel (Dec. 29, 1999)........ccecesceeeseseeseseseeseee Evidentiary Materials Certificate Pertaining to Foreign Interests (larch 1S, TOFD) ..sceccccccevesvecsseerseivecssabenonetesoonsee posvorctuesoesontn Search Warrant Affidavit of Douglas Moore COCR. 19, 19FZ) ..ccnccccrerevitecnsstscvnsvesisisteosetesevensstetteontmaieneiets Criminal Case Report (Feb. 28, 1993)..........ssssesssssseseeseees Grand Jury Testimony of Douglas Moore GGG: 1G, TO FGD wcccncocovecovensecervsvenscoseevesvevenvecsoounpenvennsentisniiiiin Grand Jury Testimony of Douglas Moore GFA. 1G, TIPE) ..ccceseecoveeveversnocesyervessvqpivenssorinncsenneteeoeneperretens SII. ccnnnnsinsinsitasiisiesiitaietaieeatadialdatiaciihs Jury Verdict Form from the Criminal Trial CPO TE, TOD) cccceccerorenrresevesseqrneiquercantevensimetnemnemmannienes Statement from Jury Foreman in the Criminal Trial SITE 7s PUNE cevcecesunscovsasnoscstcetesijutanmiciesiibceiqubiesniatintataiaiit Affidavit of Norman Hoffman (Jan. 5, 1998)..........0:000e0 Affidavit of James Seltz (Sept. 21, 1999) ........cessesesereesees Report of Interview (Feb. 10, 1989) ..........sssesessssesseeseeees Letter to Technical Ordnance (Aug. 16, 1990)............+.+++ Memorandum to J. Kodedek (Oct. 31, 1991) ...cccssssssssssses Letter to M. Trimble (Feb. 23, 1994) .........csccssssssesessrseerees A-ii United States Court of Appeals John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, True Names Unknown, FOR THE EIGHTH CIRCUIT No. 99-4334 Technical Ordnance, Inc; * Norman H. Hoffman, . Plaintiffs- Appellees, * v. . United States of America; * Appeal from the United Douglas Moore, Special * States District Court for Agent, The Bureau of * — the District of Alcohol, Tobacco, and * South Dakota. Firearms (“ATF”), U.S. Department of the Treasury; * Other Unknown ATF Agents * Defendants - Appellants. Submitted: December 13, 2000 Filed: March 26, 2001 Before McMILLIAN, FAGG, and MURPHY, Circuit Judges. A-1 MURPHY, Circuit Judge. After a jury found Technical Ordnance, Inc. (Ordnance) and Norman Hoffman, the president of Ordnance, not guilty of criminal charges growing out of their business of manufacturing and selling explosive materials, they sued the United States and several agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF). Special Agent Douglas Moore was the only identified individual defendant. The district court denied Moore’s motion for summary judgment on the basis of qualified immunity, and he appeals. We reverse. —~ I. Ordnance is a manufacturer and distributor of explosive devices. It exports products abroad in two different ways. The first is by export to foreign countries or foreign companies. The second is pursuant to Department of Defense (DOD) contracts. On March 20, 1992, Moore and Kim Kratochvil, an ATF regulatory compliance inspector, went to the Ordnance facility at Clear Lake, South Dakota to investigate three accidental explosions that had occurred there between January 16 and January 21, 1992. They also wished to inspect explosive bunkers and inventory for which Ordnance had received a non-compliance citation two years earlier. ATF has jurisdiction to license and regulate the importation, manufacture, distribution, and storage of explosive materials in interstate and foreign commerce. See 18 U.S.C. §§ 842 and 843. Those who operate under an ATF license must keep records and make those records and their storage facilities available for inspection. See id. at §§ 842(f) and 843(f). Ordnance has had an ATF license since 1989. Prior to the inspection in March 1992, Hoffman had had a longstanding disagreement with ATF about its jurisdiction over Ordnance. He had told ATF agents on several occasions that his business was over regulated and that ATF should not A-2 have jurisdiction over its activities. He also disagreed with ATF concerning the scope of its regulation. Congress has provided that companies cannot lawfully engage in the sale of defense articles directly to foreign entities without a license from ATF and an export license from the State Department. See id. at § 842 (a); 22 US.C. § 2778(g)(6). ATF describes sales to foreign entities under these licenses as “commercial sales,” and it has regulatory jurisdiction over this type of sale. See 18 U.S.C. § 843. ATF does not have authority, however, to regulate sales to foreign governments when they are made under contracts with the United States military, see id. at § 845(a)(6), and it describes such sales as “government to government sales.” Until 1989 Ordnance ‘had exported materials to foreign governments and related foreign businesses without an ATF license. Ordnance used its own terminology for those sales; it called them “foreign military sales” and denied that they were “commercial sales” subject to ATF regulation. In 1988 ATF informed Ordnance that these sales were “commercial” and fell within its jurisdiction, and Ordnance obtained an ATF license in 1989, When Moore and Kratochvil went to the Clear Lake facility on March 20, 1992, they met with Hoffman and John Yuhas, the vice president of Ordnance. Hoffman objected to the inspection; he said ATF did not have jurisdiction over the Clear Lake plant. Hoffman stated that Ordnance was not “currently” engaged in what he called “foreign military sales” and was “currently” working only under DOD contracts so ATF did not have jurisdiction over the operations. Hoffman showed Moore a computer printout listing the work being done at the Clear Lake facility on that day, indicating that all of it was under DOD contract. Hoffman told the agents that records of all DOD contracts and foreign military sales were kept at the Ordnance facility in St. Bonifacius, Minnesota. Appellees claim that Hoffman told Moore that Ordnance still did foreign military sales but that the only work that day A-3 was under DOD contract. Moore says that he asked Hoffman why Ordnance had an ATF license if it only engaged in DOD contracts, and Hoffman replied “because they made me get one.” Appellees say they felt threatened during this conversation because Moore asked Hoffman and Yuhas if they realized he wore a badge, carried a gun, and could arrest people. Eventually Hoffman discussed the causes of the explosions with the agents and allowed Kratochvil to inspect the facility, and Kratochvil determined that Ordnance had remedied the problem for which it had - been cited two years previously. Moore suspected that Ordnance was engaged in direct export to foreign governments and that Hoffman had lied when he told him that Ordnance was currently working only on projects under DOD contracts. He continued his investigation of Ordnance after the inspection on March 20. During his investigation, Moore received reports from defense contract investigators which indicated that relatively few Ordnance projects were under DOD contract. He also received a printout from the State Department indicating that, beginning in 1983 and as late as June 3, 1992, Ordnance had been making sales directly to foreign governments or companies under export licenses issued by the State Department, rather than under military contract. Such sales do not fall under the 18 U.S.C. § 845 (a)(6) exemption from ATF regulatory jurisdiction (the exemption for so-called government to government sales). On October 19, 1992, Moore applied for a warrant to search the Clear Lake facility. His accompanying affidavit was also used by another ATF agent who attached _it to his own affidavit and application for a search warrant for the St. Bonifacius facility in Minnesota where company records were located. Moore testified in his affidavit that Hoffman had told the ATF agents during the March 20, 1992 inspection that: because his operation currently involves only Department of Defense contracts, [] ATF has no jurisdiction and his companies [sic] activities are exempted under Title 27, CFR, Section 55.141. Hoffman stated that his company has discontinued manufacturing destructive devices and is not currently providing explosive materials to foreign customers or governments. Appellees’ Appendix at 372-73. Moore also included in his affidavit information that he had uncovered showing that Ordnance had been making sales directly to foreign governments from January 19, 1983 through June 3, 1992. He attached the State Department computer printout in support. He also supplied two other documents: an ATF report from April 17, 1990, indicating that Hoffman had told an agent that all projects at Clear Lake were under DOD contract, and a July 25, 1990 letter from John Yuhas to ATF saying that all Clear Lake projects at that time were conducted under government contracts. This evidence led Moore to believe that Hoffman had made false statements when he claimed an exemption for work being done at the Clear Lake facility and Moore concluded in his affidavit that “either no records are being maintained for the commercial transactions, . . . , or false records are being maintained to conceal the activity and give the appearance that the transactions are exempted under government contract obligations.” Id. at 378. The applications and Moore’s affidavit were presented to two different United States magistrate judges who each found probable cause and who issued search warrants for both the Clear Lake, South Dakota and St. Bonifacius, Minnesota facilities. The warrants were executed simultaneously at both locations by ATF and DOD agents who seized a number of documents. Appellees complain that the agents only seized documents that were incriminating and bypassed or refused exculpatory documents offered by Ordnance employees. A-5 Moore prepared a criminal case report, based in part on the seized documents. In his case report Moore listed all Ordnance commercial transactions from 1983 to 1992, the corresponding records ATF had seized under the search warrants, and an analysis of whether the records complied with ATF regulations. He forwarded the report to federal prosecutors who decided after reviewing it to seek an indictment against Ordnance and Hoffman. A federal grand jury was convened, and Moore was called to testify. He testified that during the March 20, 1992 inspection, Hoffman had “related at that point in time, they were not engaged in any commercial activity, nor were they at a given point in time engaged in any contract with foreign sales.” Appellant's Brief at 10. In September 1993, the grand jury returned a multi-count indictment charging Ordnance and Hoffman with federal offenses related to licensing and record requirements, false statements, and conspiracy.! After Ordnance and Hoffman were acquitted in a jury trial, they brought this action against the United States under the Federal Tort Claims Act (FTCA), see 28 U.S.C. §§ 1346, 2671 et seq. and against Moore and other unnamed ATF agents under Bivens v. Six Unknown-Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In their 43 page complaint appellees raised many claims, including violations of their First, Fourth, and Fifth Amendment rights, conspiracy involving Moore and unnamed agents, negligent 1 The indictment included charges of manufacturing and dealing explosive materials without an ATF license in violation of 18 US.C. § 842(a)(1) (for the period before 1989 when Ordnance engaged in direct foreign sales without an ATF license), unlawful commercial distribution of explosive materials to unauthorized persons in violation of 18 U.S.C. § 842(b), unlawful manufacture, purchase, distribution, and receipt of explosive materials without making required records in violation of 18 US.C. § 842(f), false statements in violation of 18 U.S.C. § 1001, and conspiracy in violation of 18 U.S.C. § 371. 2 Under the FTCA the United States may be held liable for a tort committed by an employee acting within the scope of his office, see 28 U.S.C. § 1346(b), and such a claim is tried to the court. See id. at § 2402. A-6 training and supervision, abuse of process, malicious prosecution, and infliction of emotional distress. They sought some $60,020,000 in damages from Moore and other unidentified ATF agents, $54,000,000 in damages from the United States, punitive damages, an injunction prohibiting the defendants from harassing, threatening, or otherwise attempting to intrude upon their constitutional rights, and attorney fees and costs. The defendants moved to dismiss the action for failure to state a claim and Moore moved to dismiss the claims against him on the basis of qualified immunity. The district court dismissed the following claims: Fifth Amendment, abuse of process, and conspiracy by Moore. It denied dismissal for the claims of malicious prosecution and intentional infliction of emotional distress, and it denied Moore’s motion for qualified immunity except on a claim that he had illegally expanded the scope of the search. The district court stated that Moore was not entitled to qualified immunity on the Fourth Amendment claim arising out of his warrant affidavit because “[a] reasonable officer would have known there was no probability or even possibility of criminal activity.” (9/30/98 Order at 13). Discovery proceeded and after it was completed, Moore renewed his motion for summary judgment on the basis of qualified immunity. The motion was again denied. The district court believed there was “a genuine issue for trial” on the question of “whether or not it was objectively reasonable to assume that either no records or inadequate records existed.” (10/28/99 Order at 4). The court also concluded that Moore was not entitled to qualified immunity on the First Amendment and malicious prosecution claims. Il. To defeat a government official’s claim of qualified immunity, a plaintiff must demonstrate that the official's actions violated a statutory or constitutional right, that the A-7 right was clearly established at the time of the violation, and that a reasonable official would have known that his conduct violated that right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sexton v. Martin, 210 F.3d 905, 909-910 (8th Cir. 2000). Qualified immunity issues should be resolved as early as possible because one of the purposes of qualified immunity is to protect public officials from disruptive “broad-ranging discovery.” See Anderson v. Creighton, 483 US. 635, 646-47 n.6 (1987) (quoting Harlow, 457 US. at 817). In some circumstances limited discovery may be required to ; “resolve the qualified immunity question. See id. A public : official is entitled to summary judgment in the absence of any genuine issue of material fact. See Mitchell v. Forsyth, 472 US. 511, 526 (1985). In this case full discovery was : permitted before the court ruled on Moore’s renewed motion for summary judgment. Although appellees contend that there are genuine issues of fact that must be decided by a jury, they have not identified any material issues of fact preventing summary judgment. The parties do draw conflicting legal conclusions from what was said and done, and we have jurisdiction to reach the issues of qualified immunity. See Behrens v. Pelletier, 516 US. 299, 312-13 ey | (1996). f A. Moore argues first that he is entitled to qualified immunity on the claim that he subjected appellees to an illegal search and seizure in violation of their Fourth Amendment rights. Appellees claim that the Fourth Amendment law is clear and that Moore violated it by misstatements and omissions in his warrant affidavit. They also attempt to raise a malicious prosecution claim based on the Fourth Amendment, saying that he violated clearly established law of which a reasonable officer would have known when he caused them to be prosecuted without A-8 probable cause. Moore denies that he violated any clearly established law under the Fourth Amendment. 1, To meet the requirements of the Fourth Amendment, a search warrant must be issued by a neutral and detached magistrate on the basis of an affidavit that states probable cause for the search. See Johnson v. United States, 333 US. 10, 13-14 (1948). Probable cause exists if the affidavit gives a magistrate a “substantial basis for...conclud[ing] that a search would uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (alterations in the original, quotation marks and citations omitted). It is not to be determined “according to a fixed and rigid formula, but rather in the light of the ‘totality of the circumstances’ made known to the magistrate,” and a magistrate is allowed to draw reasonable inferences from the evidence presented. Massachusetts v. Upton, 466 U.S. 727, 728, 734 (1984) (per curiam). A warrant issued on the basis of an affidavit that shows probable cause only because it contains a deliberate or reckless falsehood or omission violates the Fourth Amendment See Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Humphreys, 982 F.2d 254, 258 n.2 (8th Cir. 1992). Even if a false statement or omission is included in an affidavit, the Fourth Amendment is not violated if the affidavit would still show probable cause after such falsehood or omission is redacted or corrected. See Franks, * The record does not indicate whether Ordnance and Hoffman ever requested a Franks hearing during the criminal proceedings against them or sought to suppress evidence obtained under the search warrants. In order to obtain a Franks hearing, a party must first “make a substantial preliminary showing of an intentional or reckless falsehood made in the affidavit.” See United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987) (emphasis in original). This requirement is not lightly met, see id., and is not satisfied by conclusory allegations that the affiant made reckless or intentional misstatements. See Franks, 438 U.S. at 171. A-9 438 U.S. at 171-72; Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000). The appellees claim that Moore omitted evidence he should have included, that he did not mention reports that showed that agents had examined Ordnance records twice in the past two years and concluded they complied with ATF regulations. The reports appellees cite do not indicate that ATF performed a complete inspection of all Ordnance records or that ATF found that the records accurately reported all commercial sales as required by regulations. The reports do show that Ordnance did not keep records of materials used in commercial sales separate from those for sales under government contract and that agents were therefore concerned about the difficulty of determining whether Ordnance was in compliance. See Appellee’s Appendix at 571, 572, 630-32. Even if Moore’s affidavit were amended to show the existence of these reports, it would still show probable cause. Any such omission was therefore not material. 4 For example, in a report dated September 17, 1991, an ATF inspector stated: TEK ORD maintains computerized records for all of their operations, including the receipt, manufacture and storage of all explosive materials .... When taken as a whole, TEK ORD’s records contain all of the information required by Part 55, but the licensee does not maintain records specifically for ATF and our inspectors encountered some difficulty in identifying and — tracing those explosives which are subject to ATF regulation... There is no segregation of explosives in storage based on intended use. Without the assistance of TEK ORD personnel the ATF Inspectors were unable to differentiate between explosives that will ultimately be used to fill DOD contracts (and therefore exempt from Part 55) and surplus explosives that will be used to fill FMS contracts. TEK ORD was therefore in the enviable position of dictating what materials, if any, are subject to ATF regulation. Appellee’s Appendix at 631. A-10 Appellees claim there was a material omission in the affidavit because Hoffman had said Ordnance records were stored at St. Bonifacius and the affidavit did not mention that town or the fact that Moore had not traveled there to make an inspection. The affidavit could not have misled a reviewing magistrate to understand that all records were at the Clear Lake facility, however, because Moore stated in the affidavit that Hoffman had said that the records were kept in Minnesota (Moore referred to the Minnesota town as Waconia, a previous site for the records). See id, at 377. Even if the exact wording now proposed by appellees would have been added by Moore, there would still have been probable cause to search the Clear Lake facility. Probable cause requires evidence of a nexus between the object sought and the place to be searched. See United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). During Moore’s March inspection he had seen Hoffman print out a list of work being performed on that day at Clear Lake. He knew that at least some records must therefore be available at that location and through his investigation he obtained evidence that suggested Hoffman had lied about what work was currently being done. Based on what he learned, Moore could have reasonably inferred that the St. Bonifacius records would not agree with those kept in Clear Lake or that Hoffman was lying about the location of the records, as well as about what they contained. He was not required to go to St. Bonifacius to examine the records before seeking a search warrant, for once an agent has established probable cause, he is not required to conduct a further investigation in the hope of finding exculpatory evidence. See Forman v. Richmond Police Dept., 104 F.3d 950, 962 (7th Cir. 1997). The omission of the correct name of the Minnesota records site and the fact that Moore had not himself reviewed those records was not material. Appellees claim Moore set out Hoffman's statements in a manner designed to mislead a magistrate into believing that Hoffman had lied during the March 20 inspection. They A-11 claim that Hoffman told Moore that the company had no foreign contracts on the day of the inspection but that it engaged in both DOD contracts and foreign military sales. Moore never stated in his affidavit that Hoffman claimed that Ordnance only performed DOD contracts. The affidavit indicates that Moore understood Hoffman to say that Ordnance was not engaged in direct sales to foreign governments on that day. Appellees find it significant that on pages 2 and 3 of his affidavit Moore repeated Hoffman's statement that Ordnance was not “currently” making direct sales to foreign governments, but that he did not include that word in the summary section. See Motions Hearing Transcript 3/19/97 at 23. Counsel argued that this was misleading because the summary is “probably the only section that anyone read.” Id. This argument is sheer speculation. The affidavit was only eight pages, and there is no evidence or reason to believe that either magistrate did not consider the whole affidavit, as required under the law. See United States v. Anderson, 933 F.2d 612, 614 (8th Cir. 1991) (warrant affidavits are to be read “as a whole”). The fact that the word “currently” was not repeated in the summary does not show an intentional or reckless omission. It would be a rare summary that included all that went before. If the affidavit were amended with the language appellees suggest, to say that “Hoffman and Yuhas had acknowledged that Technical Ordnance engaged in ‘foreign military sales’ over which they disputed ATF’s jurisdiction [and] that no work on such sales was in progress at the Clear Lake plant on March 20, 1992,” Appellee’s Brief at 53, the affidavit would still have contained probable cause that officers of the company had lied and were not keeping_ records required by ATF regulation. The affidavit would still have shown that Yuhas and Hoffman stated that on three particular days (April 17 and July 25, 1990 and March 20, 1992) the Clear Lake plant was working only on United States military projects and was exempt from ATF regulation A-12 when other information contradicted the assertions. Moore pointed out that defense contract investigators had told him that Ordnance had few DOD contracts around March 20, 1992, and documents from the State Department showed that the Clear Lake facility had contracts directly with foreign governments from January 19, 1983 through June 3, 1992, totaling over $11,000,000. The affidavit contains other facts that would cause a reasonable law enforcement agent to be Suspicious. Between January 16 and January 21, 1992, three explosions had occurred at the Clear Lake facility, but none were reported to ATF. When asked about them, Hoffman acknowledged they had occurred, but he claimed that he was not required to report them since only exempt DOD contracts were being worked on at that time. During the March 20 inspection, Hoffman initially denied ATF access to an explosives bunker because it was marked with a DOD sticker. Moore learned later from a defense contract investigator that Ordnance had not been working on any classified DOD projects on March 20. Another investigator informed Moore that “during her last compliance inspection . .. she found the company in total noncompliance, because she found the inventory and accountability so confusing she found it impossible to sort out the situation.” Appellee’s Appendix at 373-74. The appeliees attempt to parse Moore’s affidavit, looking at individual parts in isolation. A warrant affidavit is properly viewed as a whole, and the reviewing magistrate is to examine its totality. See Gates, 462 US. at 230-31; Anderson, 933 F.2d at 614 (“the affidavit cannot be attacked paragraph by paragraph; it must be evaluated as a whole”). It “should be read with common sense and not ina grudging, hyper technical fashion.” Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998). A law enforcement official is not required to include everything he knows about a subject in his affidavit, whether it is material to a finding of probable cause or not. See United States v. Ramirez, 279 F.2d 712, 716 (2d Cir. 1960). The warrant contained evidence that Ordnance A-13 claimed exemptions on six nonconsecutive days during a time period in which it was engaged in a significant number of direct foreign sales which are under ATF jurisdiction. Investigators had found Ordnance’s recordkeeping confusing and non-compliant, and in at least one instance an Ordnance officer lied to agents when he claimed that a bunker contained classified DOD materials. ATF is granted broad authority to enter the premises of a regulated explosives manufacturer to inspect its records and storage facilities. Its jurisdiction did not hinge on whether Ordnance was performing foreign military sales on the day of the inspection. See 18 U.S.C. § 843(f) (“The Secretary may enter during business hours the premises . . . of any licensee or permittee, for the purpose of inspecting or examining (1) any records or documents required to be kept by such licensee or permittee, . . . and (2) any explosive materials kept or stored by such licensee or permittee at such premises.”); see also 27 C.F.R. § 55.24. Given all the evidence in the affidavit, it was not unreasonable for Moore to infer that Hoffman had lied in claiming exemptions on days ATF was investigating. Appellees have not shown any genuine issue of material fact as to whether Moore intentionally or recklessly made misstatements or omissions in his affidavit. Imprecision in the affidavit may show that Moore was careless in drafting some of the language, but careless error does not show reckless or intentional misconduct. Neither does the fact that Moore may have used somewhat different language in recounting Hoffman’s statements in his grand jury testimony than in his affidavit.5 The Fourth Amendment requires that a 5 Appellees argue that there is a material question of fact about whether Hoffman told the agents that Ordnance was not “currently” engaged in direct foreign sales, as Moore stated in his affidavit, or whether Hoffman used the phrase “at that time,” as Moore testified to the grand jury. To defeat summary judgment, appellees must show there is a genuine dispute over facts that could affect the outcome of the lawsuit. See Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir. 1998). The word “currently” has essentially the same meaning as the phrase “at that A-14 warrant affidavit be a “truthful factual showing of probable cause — truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Mueller _v. Tinkham, 162 F.3d 999, 1003 (8th Cir. 1998) (quotation marks and citations omitted). Moore did not attempt to search Ordnance facilities without a warrant, nor did he rush to apply for a warrant. He began an investigation when his suspicions were aroused as a result of the March 20 Clear Lake visit. After some seven months, he applied for a warrant and summarized in his affidavit what he had learned from speaking to a number of agents and from gathering records. Appellees have not shown that Moore did not believe what he put in the affidavit or that probable cause only existed because of intentional or reckless falsehoods or omissions in his affidavit. Moore is entitled to qualified immunity on this claim. 2. Moore asserts that he is also entitled to qualified immunity on the malicious prosecution claim because appellees have not alleged that he infringed a constitutional right. The general rule is that an action for malicious prosecution does not state a claim of constitutional injury. See Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir. 2000). Appellees may overcome Moore's assertion of qualified immunity only if they show that the acts on which they base their malicious prosecution claim also violate a constitutional provision or federal law. See Sanders v. Sears Roebuck & Co., 984 F.2d 972, 977 (8th Cir. 1993). The district court concluded that appellees’ malicious prosecution claim alleged a violation of a clearly established constitutional right under the Fourth Amendments time.” See WessTER’s NEw WorLD DICTIONARY OF AMERICAN ENGLISH 340 (3d ed. 1988) (defining “current,” in part, as “at the present time”). *The district court dismissed appellees’ attempt to raise their malicious prosecution claim under the Fifth Amendment, Stating “a claim _ A-15 Appellees allege that they were forced to post bond, summoned to appear before court, and made to answer charges although prosecuted without probable cause. They contend that such malicious prosecution amounted to an illegal seizure under the Fourth Amendment, citing Albright v. Oliver, 510 U.S. 266, 276-81 (1994). In that case, Albright had brought a substantive due process claim charging malicious prosecution by the detective who had initiated criminal proceedings against him. The Court held that Albright had not stated a claim, but suggested that he might have been able to raise a claim of improper arrest under the Fourth Amendment. See id, at 274-75 (plurality opinion); id. at 281 (Kennedy, J., concurring); id. at 288-89 (Souter, J,, concurring in.the judgment). Justice Ginsburg suggested in dictum in her concurrence that pretrial deprivations of liberty, such as the requirement to post bond, to attend court proceedings, and limitations on travel might amount to a seizure, implicating the Fourth Amendment. See id. at 276- 81. The two dissenting Justices seemed to agree. See id. at 307 (Stevens, J. and Blackmun, J., dissenting). This circuit has never held that pretrial restrictions such as those alleged by appellees constitute a Fourth Amendment seizure. Appellees argue that the Third Circuit recognized this theory in Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998). They also cite to dicta in Murphy v. Lynn, 118 F.3d 938 (2nd Cir. 1997), cert. denied, 522 U.S. 1115 (1998) for malicious prosecution, if it exists, must fall under the Fourth Amendment...Plaintiff's Fifth Amendment claims must fail....Plaintiffs’ Fifth Amendments...claims against defendants Moore and the United States are dismissed.” (4/14/97 Order at 10, 13). The appellees have not now attempted to appeal that ruling. Although they cite a list of procedural due process cases, they have not pointed to specific authority which shows the district court erred. 7 They also rely on Gerstein v. Pugh, 420 U.S. 103, 111 (1975), which held that an arrestee may be subjected to extended detention only after a judicial determination of probable cause. Appellees were never jailed, and Gerstein does not support their Fourth Amendment theory in this case. A-16 ~ (obligation to appear in court and curtailment of travel could constitute a seizure). But see Britton v. Maloney, 196 F.3d 24, 28-30 (Ist Cir. 1999), cert. denied, 120 S.Ct. 2198 (2000). We cannot say that the Albright dictum amounts to a statement of clearly established law. Moreover, since Moore’s conduct took place prior to the 1994 decision in Albright, it could not have violated any clearly established constitutional right. Moore is entitled to qualified immunity on this claim. B. Moore argues that he is also entitled to qualified immunity on the claim that he violated appellees’ First Amendment rights by initiating criminal proceedings against them. Appellees claim his actions were in retaliation for their belief that ATF should not have jurisdiction over their business. The district court denied qualified immunity to Moore on this claim with the comment that “defendants’ actions had effectively silenced plaintiffs, depriving them of their right to freedom of speech and expression.” (4/14/97 Order at 11). Prosecution in retaliation for the exercise of the right to protest government policy is an impermissible intrusion upon First Amendment rights, United States v. Catlett, 584 F.2d 864, 867 (8th Cir. 1978), but appellees cannot proceed without a showing that Moore acted. with an improper motive when he took steps that led to the prosecution against them. See Crawford-El v. Britton, 523 U.S. 574, 600 (1998). Moore asserts that appellees have not made such a showing. To overcome Moore's defense of qualified immunity, appellees must show that a material fact or question of law precludes summary judgment. See Yellow Horse _ v. Pennington County, 225 F.3d 923, 927 (8th Cir. 2000). Because Moore’s motive is at issue, “the plaintiff[s] may not respond simply with general attacks upon [Moore's] credibility, but rather must identify affirmative evidence from which a jury could find that the plaintiff[s have] carried A-17 [their] burden of proving the pertinent motive.” Crawford- _523 US. at 600. Appellees allege that during the March 20, 1992 inspection, Moore told Hoffman and Yuhas that he wore a badge, carried a gun, and could arrest people; that Ordnance received a threatening phone call from an unidentified man after service of the complaint saying “be real careful of what you ship”; that Moore believed that Hoffman would object publicly to the ATF searches; that the searches were simultaneous, unannounced, and involved 21 federal agents; and that only documents that made it appear that Ordnance was involved in improper activities were seized. Even taking all of appellees’ allegations as true, and drawing all reasonable inferences in the light most favorable to them, they do not show that Moore was motivated by animus against them for their positions on governmental regulation. We do not question that appellees themselves hold a sincere belief that ATF targeted them because of their opinion that they should be free of its regulation, but they have not made the requisite showing that Moore’s conduct was the result of an improper motive or in retaliation for their beliefs in violation of the First Amendment. Moore is entitled to qualified immunity on this claim. Ill. After considering the full record and the arguments the parties raise on all of the various theories asserted in the Bivens action against Moore, we conclude that appellees have not made a showing that Moore violated any clearly established constitutional right and that as a matter of law he is entitled to qualified immunity. The order denying Moore’s motion for summary judgment is reversed, and the case is remanded for resolution of the remaining claims against the United States. A true copy. A-18 Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. A-19 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA NORTHERN DIVISION HRA IAEA ER * TECHNICAL ORDNANCE, INC. CIV 95-1039 and NORMAN H. HOFFMAN, Plaintiffs, ORDER -VS- UNITED STATES OF AMERICA; < DOUGLAS MOORE, Special Agent, * The Bureau of Alcohol, Tobacco, and * Firearms (“ATF”), U.S. Department * of the Treasury; and OTHER . UNKNOWN ATF AGENTS ” JOHN DOE 1, JOHN DOE 2, ° JOHN DOE 3, JOHN DOE 4, co JOHN DOE 5, True Names Unknown, * Defendants. kkkkkkkkkkkh Plaintiffs instituted this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking redress for alleged violations of plaintiffs’ constitutional rights arising out of the investigation and prosecution of plaintiffs for unlawful manufacture, distribution and storage of explosive materials, CR 93-10025. Jury verdicts were rendered on February 18, 1994, acquitting Technical Ordnance and Hoffman of all 36 counts of the indictment in that case. Counts I and II of plaintiffs’ complaint allege that Agent Moore and the unknown agents A-20 violated the Fourth and Fifth Amendments to the United States Constitution and plaintiffs’ right to privacy by conducting an unreasonable search and seizure in connection with the investigation of those criminal charges. Count II, which is limited to the unknown agents, also alleges they failed to properly train and supervise the Special Agents. Count III claims a cause of action under the Federal Tort Claims Act for malicious Prosecution. Count IV alleges a cause of action under the Federal Tort Claims Act for abuse of process. Count V alleges a cause of action under the Federal Tort Claims Act for infliction of emotional distress upon plaintiff Hoffman. Defendants United States and Agent Moore moved to dismiss for failure to state a claim under the Fourth and Fifth Amendments and on the basis of qualified immunity, Doc. 9. While that motion was pending, plaintiffs filed an amended complaint. Counts I, II, and III of the amended complaint allege violations of plaintiffs’ First, Fourth, and Fifth Amendment rights: Count IV alleges a conspiracy to deprive plaintiffs of their civil rights in violation of 42 US.C. § 1985. Count V alleges a claim under the Federal Tort Claims Act for malicious prosecution. Count VI alleges a claim under the Federal Tort Claims Act for abuse of process. Count VII alleges a claim under the Federal Tort Claims Act for infliction of emotional distress upon plaintiff Hoffman. Count VIII seeks an injunction against the defendants to prohibit the continuance of an alleged policy to “disrupt, intimidate, harass, threaten, entrap, and otherwise attempt to injure plaintiffs in violation of their rights to freedom of speech and expression . . . and in violation of their rights to be secure in their liberty and property ....” The United States and Agent Moore filed a renewed motion to dismiss the complaint and amended complaint, Doc. 15. Following completion of briefing, plaintiffs, without leave of court and in violation of local rule, filed a supplemental memorandum. Defendants filed a motion to strike this supplemental memorandum, Doc. 22. Also before A-21 the Court is the plaintiffs’ motion to toll the statute of limitations with respect to the unknown defendants, Doc. 13. INTRODUCTION The district court must accept the allegations of the amended complaint as true when considering a Rule 12(b) motion to dismiss. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). Dismissal under Rule 12(b)(6) is appropriate only when it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Dover Elevator Co. v. Arkansas State University, 64 F.3d 442, 445 (8th Cir. 1995). In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 91 S. Ct. 1999, 2002-03 29 L. Ed. 2d 619 (1971), the United States Supreme Court held that civil damages suits could be maintained against federal officials for constitutional violations. A Bivens action against federal officials is almost identical to an action under 42 U.S.C. § 1983 against state officials. Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990). The two claims involve the same analysis and therefore cases involving § 1983 are persuasive in the Bivens context. See Waddell v. Forney, __ F.3d __ n. 2, 1997 W.L. 1029287 (8th Cir. 1997). 1. FOURTH AMENDMENT CLAIM Deferularts Moore and the United States argue that plaintiii Hoffman has no standing to assert a Fourth Amenezment claim based upon a search of Technical Ordnance’s facilities. The searches which are the subject of the amended complaint were conducted at Technical Ordnance’s facilities in St. Bonifacius, Minnesota, and Clear Lake, South Dakota. The amended complaint avers that Hoffman is president of Technical Ordnance. Hoffman owns the buildings and facilities which were searched and leases them to Technical Ordnance. Both plaintiffs have standing to A-22 assert a Fourth Amendment claim based upon their ownership and control of the premises. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994). The Fourth Amendment to the United States Constitution provides, in part, that “no Warrant shall issue, but upon probable cause supported by Oath or affirmation....” The Warrant Clause rests on the premise that there will be a truthfulshowing. Franks v. Delaware, 438 US. 154, 164-165 (1978). “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.” Franks v. Delaware, 438 US. at 171. In Franks v. Delaware, petitioner sought to challenge, in connection with his motion to suppress evidence prior to his rape trial, the truthfulness of certain factual statements in the affidavit supporting the search warrant for his apartment. The United States Supreme Court held: To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross- examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient A-23 content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Franks v. Delaware, 438 U.S. at 171-172. This language was recited in the context of the issue as to whether a criminal defendantmay challenge the veracity of a sworn statement made in an affidavit supporting the warrant; it thus set forth the standard for obtaining an evidentiary hearing. Franks v. Delaware, 438 U.S. at 155. The Franks standard “also defines the scope of qualified immunity in civil rights actions.” Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991) (Branch I) (quoting Rivera v. United States, 928 F.2d 592, 604 (2nd Cir. 1991)). The Franks standard of pleading applies to the issue of qualified immunity in a civil Bivens action and in civil rights actions. Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995). The United States Court of Appeals for the Eighth Circuit has held that, in a civil case, “a substantial preliminary showing of dishonesty. is necessary to obtain even an evidentiary hearing in an attempt to impeach a warrant application which on its face reveals probable cause.” Myers v. Morris, 810 F.2d 1447, 1457 (8th Cir. 1987). “Mere unfounded and unsupported allegations that the warrant was not based on probable cause, but rather upon false statements, and deception are not sufficient to subject officials to the cost and burdens of trial.” Id., quoting Fullman_v. Graddick, 739 F.2d 553, 562 (11th Cir. 1984). Branch I articulated a heightened pleading standard which requires plaintiffs to satisfy three requirements: “[P]laintiff's complaint must contain nonconclusory allegations that the defendant knowingly included false statements in the affidavit or did so with reckless disregard. That is, he must A-24 he oe [1]. “point out specifically the portion of the warrant affidavit that is claimed to be false” and [2]. allege some facts tending to show that the defendant was aware or should have been aware of the falsity of those statements [and]... [3]. allege that the false statements were “necessary to the finding of probable cause.” Branch 1, 928 F.2d at 1387 (citations omitted); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (Branch II). Although plaintiffs must meet a heightened pleading standard on their Fourth Amendment claim, the standard is a low one. Branch I, 937 F.2d at 1387. [The standard] serves the limited purpose of enabling the district court to dismiss “insubstantial” suits prior to discovery and allowing the defendant to prepare an appropriate response. It should be distinguished from the standard at summary judgment, where a plaintiff alleging judicial deception “must make a substantial showing of deliberate falsehood or reckless disregard for truth” and “establish that, but for the dishonesty, the challenged action would not have occurred.” Branch I, 937 F.2d at 1287-1388, quoting Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990). Plaintiffs have clearly met the Branch I heightened pleading standard to survive a motion to dismiss. The complaint and the amended complaint both set forth that particular statements in the affidavit in support of the search warrant were allegedly “knowingly and/or intentionally false” and demonstrated the facts upon which they rely to show Agent Moore knew the affidavits were false. Plaintiffs A-25 further allege these false statements were necessary to procure a judicial finding of probable cause to obtain a search warrant. “Government officials performing discretionary functions are generally shielded from liability for civil damages unless their conduct violates ‘clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). An official is entitled to qualified immunity if the court determines the “official's action was objectively legally reasonable in light of the legal rules that were clearly established at the time the action occurred.” George v. City of St. Louis, 26 F.3d at 57. “In the context of a police officer obtaining a warrant, immunity will be lost only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Id. “If an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements . . . he cannot be said to have acted in an objectively reasonable manner.” Branch _ v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991), quoting Olson v. Tyler, 771 F.3d 277, 281 (7th Cir. 1985). There is no question that the law in this regard is clearly established. George v. City of St. Louis, 26 F.3d at 57. In George, the issue before the Court was whether the defendants’ actions in relying upon information from a confidential informant to support a warrant application were “objectively legally reasonable under the standard established in [Malley v. Briggs, 475 U.S. 335, 344-345, 106 S. Ct. 3034, 3038, 97 L. Ed.2d 271 (1986) (“In the context of a police officer obtaining a warrant, immunity will be lost only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence A-26 me nr nn een ee ee TT ee ee unreasonable.”)].” George v. City of Louis, 26 F.3d at 57. Here, defendants do not contend at this stage that the statements in the warrant application were objectively reasonable but instead jump to the heart of Franks and contend that notwithstanding the challenged statements, the remaining allegations are sufficient to establish probable cause. The United States Court of Appeals for the Eighth Circuit has held that “qualified immunity is an affirmative defense, “which will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d at 266 (quoting Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995)). The evidence must be viewed in a light most favorable to the nonmoving party. George v. City of St. Louis, 26 F.2d at 57. The court is not required to treat a motion to dismiss as a motion for summary judgment when it considers an exhibit introduced as part of the motion attacking the complaint where that exhibit is referred to in the plaintiffs’ complaint. Sheppard v. Texas Department of Transportation, 158 F.R.D. 992, 595 (E.D. Tex. 1994). “When plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading.” Vizenor v. Babbitt, 927 F. Supp. 1193, 1198 (D. Min. 1996). However, the exhibit must not only be referred to by the complaint, “it must be integral and central to the plaintiff[s’] claim.” Sheppard v. Texas De artment_ of Transportation, 158 F.R.D. at 596. The basis of plaintiffs’ claims is that search warrants were illegally obtained which resulted in a criminal prosecution, both of which violated plaintiffs’ federal and state law rights. The amended complaint quotes portions of the search warrants in support of plaintiffs’ claims. Defendants attached copies of the search warrants and probable cause affidavits to their brief in support of their motion to dismiss. These matters are Properly considered in determining whether plaintiffs’ complaint states a claim upon which relief may be granted A-27 and whether defendant Moore is entitled to qualified immunity. The affidavit plaintiffs complain about was made by ATF Special Agent Douglas C. Moore on October 19, 1992, in support of a search warrant for the Clear Lake; South Dakota, facility. The amended complaint does not make any reference to the affidavit by Special Agent David Gottschalk in support of a search warrant at the St. Bonifacius, Minnesota, facility. The affidavit alleges that plaintiffs were in violation of 18 U.S.C. § 1001 (which, in the context of this case, makes it a crime, in any matter within the jurisdiction of the executive branch of the United States government, to knowingly and willfully falsify, conceal or cover up by any trick, scheme, or device a material fact, or make any false, fictitious or fraudulent statements or representations) and states that Hoffman and Yuhas (a company employee) “stated that the company was not engaged in any commercial sales or transactions of explosives, specifically sales to foreign customers or governments. Hoffman states that he was only involved in U.S. Department of Defense government contracts and therefore exempt from ATF jurisdiction and record keeping.” The amended complaint claims that these statements in the affidavit were intentionally made falsely and that defendants admitted at plaintiffs’ criminal trial that plaintiffs did tell defendants that Technical Ordnance was involved in foreign military sales. The clear implication of page three of the affidavit is that Hoffman had falsely portrayed matters and that Hoffman was claiming that his entire operation fell under the purview of the DOD exemption. The affidavit also alleges that plaintiffs were in violation of 18 U.S.C. § 842(f) (referring to a licensee or permittee who manufactures, imports, purchases, distributes, or receives explosive materials which licensee or permittee fails to make records) and states that “[o]n April 17, 1990, during an ATF Compliance Inspection of Technical Ordnance, Inc. Clear A-28 that plaintiffs did tell defendants that Technical Ordnance was involved in foreign military sales. Plaintiffs have met the heightened pleading standard set forth in Franks. The Moore affidavit contains eight typewritten pages of substantive statements. If the Court were to delete from the affidavit each statement which the plaintiffs claim is false and add to it the exculpatory information plaintiffs claim was known by Agent Moore but wrongly omitted, it is not clear that “there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Franks, supra. Defendant Moore’s qualified immunity defense is not sufficiently established at this juncture. Plaintiffs also claim that defendants suppressed exculpatory evidence and that defendants’ actions amounted to malicious prosecution in violation of plaintiffs’ Fourth Amendment rights. The Supreme Court in Albright _v. Oliver, infra, held that a malicious prosecution claim, if it exists at all, is based upon the Fourth Amendment. The Supreme Court did point out that “there is an embarrassing diversity of judicial opinion” on the “extent to which a claim of malicious prosecution is actionable under § 1983.” Albright v. Oliver, 510 US. 266, 271, n. 4, 114 S. Ct. 807, 811, 127 L. Ed. 2d 114 (1994). Neither party has cited an Eighth Circuit opinion on the availability of a Bivens action under this theory. The United States Court of Appeals for the Second Circuit held that “[t}he Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person—i.e., the right to be free of A-29 unreasonable or unwarranted restraints on personal liberty.” Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2nd Cir. 1995). “A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must therefore show some deprivation of liberty consistent with the concept of ‘seizure.’” Id; Whiting v. Taylor, 85 F.3d 581, 584 (11th Cir. 1996). “In respect of pleading, Albright requires nothing more.” Singer v. Fulton County Sheriff, 63 F.3d at 116. Plaintiffs’ amended complaint satisfies this requirement. Defendant Moore has not presented a sufficient claim for qualified immunity as it relates to allegations concerning his conduct after execution of the search warrants. Plaintiffs claim the ATF unlawfully expanded the search to items not described in the affidavits. Generally, when a search is conducted pursuant to a warrant, only those items described in the warrant may be seized. United States v. Robbins, 21 F.3d 297, 300 (8th Cir. 1994). The amended complaint alleges that the ATF agents searched record- keeping files which did not contain any evidence of illegal activity and which were not the type of records targeted by the search warrant. The search warrants allowed the search of: Books, records, receipts, invoices, notes, contracts, ledgers and other papers relating to the transportation, ordering, purchasing, sale, transfer, export, and manufacture of explosive materials, explosive devices, explosive activated tools or devices and military explosive devices, detonators, fuses, etc.” Plaintiffs allege the search was unlawfully expanded in that the following items were seized: (i) Transactions that occurred prior to the time that Technical Ordnance acquired its ATF license in A-30 1989, for which all applicable statutes of limitation had expired; (ii) Transactions that involved third-party brokers or other entities that did not themselves have an ATF license; and (iii) Transactions that involved incomplete records or records containing typographical errors. None of the above items are, on their face, outside the scope of the language of the warrants. A reasonable officer could have believed that the search as conducted was authorized by the warrants and therefore defendant Moore is entitled to qualified immunity on this claim. 2. FIFTH AMENDMENT CLAIMS Plaintiffs claim generally that all the actions set forth in their complaint violate their Fifth Amendment rights. The allegations with respect to search and seizure must be maintained under the Fourth Amendment and not the more general Fifth Amendment. Albright v. Oliver, 510 U.S. 266, 274, 114 S. Ct. 807, 813, 127 L. Ed. 2d 114 (1994). Plaintiffs claim the allegations of malicious prosecution and Suppression of exculpatory evidence violate their Fifth Amendment Rights. They cite cases which have held that entrapment, suppression of evidence and other outrageous conduct violates the Fifth Amendment's substantive due process protection. However, those cases concern the consequences of those actions in the context of a criminal prosecution and do not provide the basis for a civil action. Not every infringement of an interest protected at common law rises to a deprivation of a constitutionally protected liberty interest. Albright v. Oliver, 975 F.2d 343, 346 (7th Cir. 1992), aff'd 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d (1994). “Being the object of a criminal investigation, whether rightly or wrongly, is just one of the burdens to which every citizen is exposed.” Kaylor v. Fields, 661 F.2d A-3i _ Se 1177, 1181 (8th Cir. 1981). The United States Supreme Court held in Albright v. Oliver that a claim for malicious prosecution, if it exists, must fall under the Fourth Amendment. Albright v. Oliver, 510 U.S. at 266, 114 S. Ct. at 807. Plaintiffs’ Fifth Amendment claims must fail. 3. FIRST AMENDMENT CLAIMS Plaintiffs claim that the wrongful conduct described in their complaint was perpetrated against them because of their political or philosophical beliefs and was therefore in violation of their first amendment rights. The United States Court of Appeals for the Ninth Circuit has held that the victim of governmental action “designed to retaliate against and chill political expression” is entitled to sue the responsible officers. Mendocino Environmental Center _v. Mendocino County, 14 F.3d 457, 464 (9th Cir. 1994). A plaintiff “may not recover merely on the basis of a speculative ‘chill’ due to generalized and legitimate law enforcement initiatives.” However, where a plaintiff “alleges discrete acts of police surveillance and intimidation directed solely at silencing” her or him, a civil rights claim will lie. The defendant's intent is an element of the claim. Mendocino, 14 F.3d at 464 (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). The heightened standard of Branch II applies with respect to the allegations of intent, id. requiring plaintiffs to “state in their complaint nonconclusory allegations setting forth evidence of unlawful intent.” Mendocino, 14 F.3d at 461. Plaintiffs allege in the amended complaint that their philosophical view that private enterprises are unduly burdened with excessive and duplicative regulation by multiple government agencies with no apparent jurisdiction over the activities of plaintiff Technical Ordnance was a A-32 substantial factor leading up to the “intimidation, harassment, indictments, and seizures of the persons of plaintiffs,” and that defendants’ actions effectively silenced plaintiffs, depriving them of their right to freedom of speech and expression. Plaintiffs have met the burden of pleading their First Amendment claim as required by Mendocino. 4. CONSPIRACY Plaintiffs claim defendants conspired to deprive them of “the equal protection of the laws, their clearly established Constitutional rights to be free to express themselves, to be free from unreasonable seizures of their persons and to be free from denial of liberty and property without due process of law as guaranteed by the First, Fourth and Fifth Amendments, and to deny them of their rights to a fair trial by jury under the Sixth Amendment to the United States Constitution.” Plaintiffs claim defendants therefore violated 42 U.S.C. § 1985. In order to state a cause of action under 42 U.S.C. § 1985, plaintiffs “must allege some class-based discriminatory motive on the part of the conspirators.” Kaylor v. Fields, 661 F.2d at 1184. Plaintiffs have failed to so allege and this claim must therefore be dismissed. 5. FEDERAL TORT CLAIMS: MALICIOUS PROSECUTION, ABUSE OF PROCESS, INFLICTION OF EMOTIONAL DISTRESS Plaintiffs allege common law tort actions which they seek to bring under the Federal Tort Claims Act. “Where the United States authorizes suit under the FT CA, its liability is determined by the law of the place where the act or omission occurred to the same extent as a private defendant.” Donham v. United State, 536 F.2d 756, 769 (8th Cir. 1976). In order to sustain an action under South Dakota law for malicious prosecution, plaintiffs must allege: on 1. the commencement or continuance of an original criminal or civil judicial proceeding; 2. its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; 3. its bona fide termination in favor of the present plaintiff; 4. the absence of probable cause for such proceeding; 5. the presence of malice; and 6. damages conforming to legal standards resulting to plaintiff. Meissner v. All Dakota Ins. Assoc., Inc., 515 N.W.2d 198, 200 (S.D. 1994). Plaintiffs have sufficiently alleged each of these elements in their amended complaint. Defendant Moore has not asserted he is entitled to absolute prosecutorial immunity. He is not shielded by qualified immunity as to this claim on the record before the Court. In order to sustain an action under South Dakota law for abuse of process, the plaintiffs must allege the improper use of process after it has been issued. Meissner v. All Dakota Inc. Assoc., Inc., 515 N.W.2d at 205. Plaintiffs’ amended complaint contains allegations that defendant Moore procured indictments against plaintiffs in bad faith and for a purpose of harassing, retaliating, and interfering with plaintiffs’ First Amendment and other rights. However, there is no allegation that once indictments were procured, the criminal prosecutions were pursued for some purpose other than for which they were intended. Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. A-34 Meissner v. All Dakota Inc. Assoc. Inc. 515 N.W.2d at 205, quoting Keeton, Pr and Keeton on the Law of Torts § 121, at 897. Plaintiffs have failed to state a claim for abuse of process. In order to sustain an action under South Dakota law for ction of emotional distress, plaintiff Hoffman must allege: 1. an act by defendant amounting to extreme and outrageous conduct; 2. intent’on the part of the defendant to cause plaintiff severe emotional distress (intentional infliction of emotional distress) or reckless conduct which constitutes a deliberate disregard of a high degree of probability that emotional distress will follow (negligent infliction of emotional distress; 3. the defendant's conduct was the cause in fact of plaintiff's injuries; and 4. the plaintiff suffered an extreme disabling emotional response to defendant's conduct. Nelson v. Web Water Dev. Assoc., Inc. 507 N.W.2d 691, 698 (S.D. 1993); Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 428-429 (S.D. 1994). Hoffman alleges in the amended complaint that defendants intentionally and with malice engaged in outrageous conduct which caused him to suffer extreme emotional distress and physical illness. The amended complaint is marginally sufficient, giving plaintiff Hoffman the benefit of all reasonable inferences. 6. TOLLING THE STATUTE OF LIMIT ATIONS Plaintiffs, in | 5 of their amended complaint, Doc. 13, seek an order tolling all applicable statutes of limitation as to the unknown defendants. Plaintiffs have failed, in violation of local rule, to cite any authority in support of this motion. Whether an amendment of a pleading relates back to the date of the original pleading is governed by Fed. R. Civ. P. 15(c). —_ A-35 This matter is more properly considered at the time, if any, that a motion to add parties or to amend is filed. The motion is premature, would call for an advisory opinion and should be denied. ORDER Now, therefore, IT IS ORDERED: (1) Defendants’ motion to dismiss, Doc. 9, and renewed motion to dismiss, Doc. 15, are granted in part. Plaintiffs’ Fifth Amendment, Conspiracy, and abuse of process claims against defendants Moore and the United States are dismissed. Defendants are entitled to qualified immunity on plaintiffs’ Fourth Amendment claim that the search was unlawfully expanded beyond the warrant. (2) Defendants’ motion to strike, Doc. 22, is granted. (3) Plaintiffs’ motion to toll the statute of limitations, Doc. 13, is denied. Dated this 14th day of April, 1997. BY THE COURT: Ls/ CHARLES B. KORNMANN US. District Judge ATTEST: JOSEPH HAAS, Clerk BY: s/ Vicky Leinhaul DEPUTY (Seal) A-36 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SELENE REE RRKEREREREREKRK IRR KK A I A Abba TECHNICAL ORDNANCE, INC. and NORMAN H. HOFFMAN, CIV 95-1039 Plaintiffs, ORDER -VS- UNITED STATES OF AMERICA; DOUGLAS MOORE, Special Agent, The Bureau of Alcohol, Tobacco, and Firearms (“ATF”), U.S. Department of the Treasury; and OTHER UNKNOWN ATF AGENTS JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, True Names Unknown, Defendants. * * #@© *#© © &@ 8&8 #& # + + + + + * © & & + * Defendant Moore (“Moore”) has moved the Court, purportedly pursuant to Rule 59%e) of the Federal Rules of Civil Procedure, to reconsider the Order (Doc. # 28 ) dated April 14, 1997. The Court will decide the motion without further oral argument. Moore claims the Court erred in failing to rule as to whether his search warrant affidavit, excluding the alleged deliberate falsehoods, would still have supported a finding of probable cause, thus granting him qualified immunity. He represents to the Court that this is the law in the Eighth A-37 Circuit, namely that this examination should be conducted in a deliberate falsehood case, and cites Bagby v. Brondhaver, 98 F.3d 1096 (8th Cir. 1996). This is a clear misrepresentation and counsel for Moore should submit an explanation in writing to the Court as to this. Bagby “does not involve a deliberate falsehood claim.” Id. at 1099. No one could misread or misinterpret the concise language of the_Bagby opinion. “We express no view as to whether a defendant whose affidavit contained a deliberate falsehood should be entitled to qualified immunity if a corrected affidavit would still provide probable cause. A more stringent rule may be appropriate when a liar seeks the benefit of this defense.” Id. at 1099, n2. Not only does Bagby not stand for the proposition claimed by Moore; it stands for the opposite, at least by implication. This Court does express the view and so holds that an affidavit containing deliberate falsehoods is not entitled to qualified immunity. A more stringent rule is appropriate when a claimed liar seeks the benefit of this defense. This is especially appropriate when the falsehoods are alleged to be material. As claimed in this case, they are material. Counsel for Moore continue to appear not to understand the differences and the implications thereof when considering a motion attacking a complaint as distinguished from a motion for summary judgment. Moore claims on page 7 of his memorandum that the Court refused to dismiss the malicious prosecution claim based on the Fourth Amendment, claiming that the Court erroneously relied upon a 1995 decision, Singer v. Fulton County Sheriff, 63 F. 3d 110 (2nd Cir. 1995), a case that was decided a short time before the Technical Ordnance trial began. Moore argues that it -was not earlier objectively unreasonable to make intentionally false statements to obtain a search warrant. This is an argument devoid of any merit. Many cases are cited in the earlier Order to the effect that the law was clearly established long before Moore’s actions. Important liberty interests are implicated by the alleged A-38 actions of Moore. Again, we are dealing with allegations in a pleading and nothing more. The law in South Dakota was clearly established as to what the implications are as to malicious prosecution. The primary discussion of the malicious prosecution cause of action is found at pages 11 and 12 of the Court's earlier Order, this claim arising under the Federal Tort Claims Act. The absence of probable cause is one of the elements which must be established by the plaintiffs in connection with such cause of action. In that sense, the Fourth Amendment tests would be applicable. Moore makes much ado about little since plaintiffs clearly State a cause of action for malicious prosecution, whether under the Fourth Amendment or the Federal Tort Claims Act applying South Dakota law. Moore alleges that the allegations in the complaint are conclusory. They are anything but conclusory. In addition to denying the motion on the merits, the Court will deny the motion to reconsider because it is procedurally improper. The Federal Rules of Civil Procedure do not allow a “motion to reconsider.” Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir. 1993); and In re Trout, 984 F.2d 977, 978 (8th Cir. 1993) (warning counsel that the Federal Rules of Civil Procedure do not provide for a motion for reconsideration and directing counsel to properly designate a motion under the rule authorizing the motion). It is clear that Moore has failed to foliow existing law in this Circuit. Counsel for Moore designated the motion as being made pursuant to Fed. R. Civ. P. 59(e). In his brief, Moore does not explain how this rule would allow the Court to grant the relief that Moore seeks in his motion. A trial was not conducted in this case and, therefore, Rule 59%e) is not applicable to this case. Reconsideration of a judgment following its entry “is an extraordinary remedy which should be used sparingly.” 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1, at 124 (1995). A motion pursuant to Rule 59(e) may be granted upon four A-39 basic grounds: (1) to correct manifest errors of law or fact, (2) newly discovered evidence, (3) to prevent manifest injustice, and (4) an intervening change in controlling law. Id. at 124- 27. In addition, a motion made pursuant to Rule 59(e) is not to be used to relitigate matters already considered and decided by the court._Id. at 127. Moore’s motion to reconsider does not meet any of these grounds. Rather, Moore reasserts the same arguments he advanced to the Court when the Court was considering the original motion. The defendant is simply asking the Court to review and reverse its prior decision. Rule 59(e) is not to be used for such purposes. If this practice is permitted, litigation will never end. The next step will be_to file a motion to reconsider a reconsideration, ad infinitum. ORDER Now, therefore, IT IS ORDERED that defendant Moore’s motion for reconsideration, Doc. 29, is denied on the merits and because ‘of procedural violations. Dated this 16th day of May, 1997. BY THE COURT: /s/ CHARLES B. KORNMANN US. District Judge ATTEST: JOSEPH HAAS, Clerk BY: s/ Kristin A. Bucky DEPUTY (Seal) A-40 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA NORTHERN DIVISION Taek ikih cite cet itkcek TECHNICAL ORDNANCE, INC. and NORMAN H. HOFFMAN, CIV 95-1039 Plaintiffs, ORDER -VS- UNITED STATES OF AMERICA; DOUGLAS MOORE, Special Agent, The Bureau of Alcohol, Tobacco, and Firearms (“ATF”), U.S. Department of the Treasury; and OTHER UNKNOWN ATF AGENTS JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE‘5, True Names Unknown, Defendants. + + + #* * © &@ © + + + *+ * &© #8 B »& * * BACKGROUND Technical Ordnance, Inc. (“Technical Ordnance”) and Norman Hoffman (“Hoffman”), its stockholder-owner and president, instituted this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking redress for alleged violations of plaintiffs’ constitutional rights arising out of the application for and execution of a search warrant and the subsequent criminal prosecution of plaintiffs for the unlawful A-41 manufacture, distribution and storage of explosive materials, CR 93-10025. Jury verdicts were rendered on February 18, 1994, acquitting Technical Ordnance and Hoffman of all 36 counts of the indictment in that case. The jury members unanimously, in conjunction with their verdicts, sent a written statement to the judge, expressing their opinions that these prosecutions should never have been brought. Counts I, II, and III of the amended complaint allege violations of plaintiffs’ First, Fourth, and Fifth Amendment rights. Count IV alleges a conspiracy to deprive plaintiffs of their civil rights in violation of 42 U.S.C. § 1985. Count V alleges a claim under the Federal Tort Claims Act for malicious prosecution. Count VI alleges a claim under the Federal Tort Claims Act for abuse of process, Count VII alleges a claim under the Federal Tort Claims Act for infliction of emotional distress upon Hoffman. Count VIII seeks an injunction against the defendants to prohibit the continuance of an alleged policy to “disrupt, intimidate, harass, threaten, entrap, and otherwise attempt to injure plaintiffs in violation of their rights-to freedom of speech and expression . . . and in violation of their rights to be secure in their liberty and property... Defendants United States and “or Moore (“Moore”) moved to dismiss for failure to state a claim under the Fourth and Fifth Amendments and on the basis of qualified immunity. That motion was granted in part, dismissing plaintiffs’ Fifth Amendment conspiracy and abuse of process claims against Moore and the United States. The defendants were also granted qualified immunity on plaintiffs’ Fourth Amendment claim that the search was unlawfully expanded beyond the warrant. This Court characterized the malicious prosecution claim as arising under the Fourth Amendment and allowed the claim to proceed. Defendants have now filed a motion for summary judgment, claiming there is no genuine issue of material fact as to whether the search warrant was supported by probable cause and again interposing the defense of official immunity. A-42 Left to be decided in the defendant's motion for summary judgment are the Fourth Amendment violations asserting prosecution of plaintiffs not supported by probable cause. Within the Fourth Amendment claim is also the malicious Prosecution claim. Also at issue is the assertion of First Amendment violations by Moore, alleging that Moore took actions in retaliation for plaintiffs’ expression of opposition to the jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (“ATF”). FACTS In evaluating a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party and accept as true the nonmoving party's account of the facts where there are material inconsistencies. Guite v. Wright, 147 F.3d 747, 749 (8th Cir. 1998). With that in mind, the Court finds the following facts. Technical Ordnance is a Minnesota corporation with manufacturing facilities in St. Bonifacius, Minnesota, as well as in Clear Lake, South Dakota. Technical Ordnance manufactures propellant actuated devices (“PADs”)! and explosive devices. It sells these products to the United States Title 18, Chapter 40, 18 U.S.C. §§ 841-848, regulates the importation, manufacture, distribution and storage of explosive materials. Section 847 Provides authority to promulgate rules to carry out the Provisions of Chapter 40. ' Any tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge. 27 C.F.R. 55.11. A-43 The Secretary has delegated rule-making authority under Section 847 to the ATF. Pursuant to § 842(f), licensees must maintain certain records as required by the Secretary of the ‘Treasury. The specific record keeping requirements are promulgated in 27 C.F.R. § 55.121 et seq. 18 U.S.C. § 843(f) requires licensees to submit to inspection of their records and their storage facilities. Section 845 sets forth various exceptions to the license and inspection requirements. Specific exemptions are contained in 27 C.F.R § 55.141, which exempts from the record keeping requirements, “[t]he manufacture under the regulation of the military department of the United States of explosive materials for, or their distribution to or storage or possession by, the military or naval services or other agencies of the United States.” 27 C.F.R. § 55.141(5). The ATF takes the position that sales to the United States Department of Defense (“DoD”) and sales to foreign governments through the DoD, referred to by the ATF as “foreign military sales,” do not fall within the purview of the license and record keeping requirements of Chapter 40, but that direct sales to foreign governments or foreign entities, which the ATF calls “commercial sales,” are not exempt. The ATF further contends that, notwithstanding the record keeping exemption, only agencies of the United States are exempt from the inspection of storage facilities. The Court found no case interpreting the ATF’s regulations regarding exemptions and record keeping. Construction of a statute or regulation by the agency charged with administration thereof is not to be overruled except for weighty reasons. Doe v. Department of Transp., 412 F.2d 674, 678 (8th Cir. 1969). Hoffman and Technical Ordnance disagreed with the ATF’s legal position that certain so-called foreign military sales fell within the ATF’s jurisdiction. In plaintiffs’ view, foreign military sales are not within ATF jurisdiction. Plaintiffs define foreign military sales as sales to foreign governments or foreign countries, whether sold directly, through the DoD, or through the U.S. Department of State. A-44 They took and continue to take the legal position that sales to foreign governments or to foreign companies, whether or not contracted through the DoD, do not constitute “commercial sales” and are therefore exempt from ATF jurisdiction. For the purposes of this motion, the court finds that the ATF knew exactly how plaintiffs defined foreign military sales and commercial sales. Throughout the course of Technical Ordnance’s business, it has had frequent contacts with the ATF. The record includes a February 14, 1989, Technical Ordnance letter to the ATF. That letter sets forth their (Technical Ordnance and the ATF) apparent common understanding that Technical Ordnance does need an ATF license to manufacture explosive materials that are not manufactured pursuant to a United States government contract and does need an ATF license to manufacture and ship explosives for foreign military sales. Hoffman contends in his declaration that the ATF informed T. ical Ordnance that all foreign military sales involving PADs did not require an ATF license. He cites the February 14, 1989, letter in support of that contention. That letter, however, is devoid of any mention of PADs. Despite Hoffman’s disagreement with the ATF, at the insistence of the ATF, Technical Ordnance obtained an ATF license in 1989, A compliance inspection was conducted on April 17, 1990, at the Clear Lake facility. During that inspection, John Yuhas, Technical Ordnance’s then vice president, told the ATF inspector that all devices manufactured at the Clear Lake facility are transferred under contract to the DoD and that no devices manufactured at the Clear Lake facility are transferred to any non-governmental or foreign military concern. During that inspection, Hoffman claimed that Technical Ordnance was exempt from ATF jurisdiction concerning the storage of explosives because all its business was on contract through the DoD. The inspector advised Hoffman that the exemption under 18 U.S.C. § 845 did not apply to Technical Ordnance and that, under 18 U.S.C. § A-45 843(f}, Technical Ordnance was required to submit to inspection of its storage facilities. Some storage violations were noted. On May 17, 1990. based upon representations from Technical Ordnance that all explosive devices manufactured at the Clear Lake facility were manufactured under contract with the DoD, the ATF determined that all explosive devices manufactured at that facility were exempt from ATF record keeping requirements. On July 25, 1990, Yuhas wrote to the ATF inspector and again reiterated that all Technical Ordnance’s contracts “are U.S. Government” and stated that Technical Ordnance does not conduct commercial sales but does conduct foreign military sales. On August 7, 1990, the ATF again advised Yuhas that the exemption in 18 U.S.C. § 845 does not apply to Technical Ordnance, even if it is storing only DoD contracted explosives. On March 20, 1992, Moore and an ATF inspector, agent Kratochvil, inspected Technical Ordnance’s facility at Clear Lake, South Dakota. The ATF was investigating three accidental explosions that had occurred there on January 16, 20, and 21, 1992, resulting in injuries to Technical Ordnance employees. According to Moore’s affidavit in support of the search warrant, Technical Ordnance reported these explosions to the Defense Contracts Management Administration Office (DCMAO) Safety Officer on January 22, 1992, although according to the DCMAO they should have been reported within three hours of the explosion. None of these accidental explosions were reported by Technical Ordnance to the ATF. Moore was told that Technical Ordnance had contacted an ATF inspector and was told that because of the DoD exemption, no report to the ATF was necessary. The purpose of the March 20, 1992, inspection also included a follow-up compliance inspection. One of Technical Ordnance’s bunkers contained materials that had been part of a DoD Classified Program involving A-46 components of the sidewinder missile. The bunker which contained missile components was sealed with a DoD sticker Kratochvil. Agents Moore and Kratochvil asked Hoffman whether Technical Ordnance engaged in commercial activity. Commercial activity, as defined by the defendants, includes sales directly to foreign governments, ie. not contracted through the DoD. Commercial activity as so defined, according to ATF, is not exempt from ATF jurisdiction and ATF record keeping requirements. Hoffman told the agents that Technical Ordnance engages in DoD contracts and foreign military sales, but that Technical Ordnance, based upon a Technical Ordnance computer printout, currently was working on only DoD contracts at the Clear Lake facility. Hoffman apparently was referring to jobs being worked on at the Clear Lake facility that day. Based upon Moore’s testimony at plaintiffs’ criminal trial, Moore knew that plaintiffs defined sales to a foreign government or a foreign company with a Department of State export license “as foreign military sales, although the ATF would define those transactions as commercial sales. The ATF defines foreign military sales (exempt from ATF record keeping requirements) as limited to sales to foreign governments through tire DoD. The compliance inspection was apparently completed on March 20, 1992, with the exception of the bunker marked Kratochvil that the records of all DoD contracts and foreign military sales were kept at the St. Bonifacius facility. It is a curious fact that no inspection was made or even attempted by ATF of these records. With the knowledge that the records A-47 were in Minnesota, Moore sought a search warrant for records at Clear Lake as well as for the St. Bonifacius facility. Moore subsequently conducted an investigation which showed that as of March 24, 1992, Technical Ordnance had a minimum of DoD contract work and that the majority of its business involved foreign and commercial sales, as defined by ATF. Agent Moore also learned that the DoD classified program in which Technical Ordnance had been involved had terminated in December, 1991. Moore knew that Technical Ordnance was involved in what ATF called “commercial sales” to foreign countries, after having obtained Department of State export licenses for those sales. Moore concluded that these sales were not exempt foreign military sales and were subject to ATF jurisdiction. Moore received information that Technical Ordnance had exported over $7,000,000 in shipments to twelve different foreign countries between February 20, 1992, and March 4, 1992. Technical Ordnance had obtained export permits from the Department of State, and ATF claims that such permits would not have been required if the sales were “foreign military sales” exempt from ATF jurisdiction. i On or about October 20, 1992, the ATF obtained search warrants for the premises of Technical Ordnance located in St. Bonifacius, Minnesota, and Clear Lake, South Dakota. Only the Clear Lake affidavit is challenged here, although the affidavit in support of the application for the St. Bonifacius search warrant was substantially similar to the affidavit challenged here. The affidavit in support of the search warrant claimed that violations of 18 U.S.C. § 1001 (false statements) had occurred because, according to Moore, Hoffman had “stated that the company was not engaged in any commercial sales or transactions of explosives, specifically sales to foreign customers or governments. Hoffman stated that he was only involved in US. Department of Defense government contracts and therefore exempt from ATF jurisdiction and record keeping” while U.S. Customs Service and U.S. State Department documents SPONSE MALT TARDY ASTER EA RY REE ARAN ORES AAGERO ER ARS DETER Hey A-48 ante showed commercial exports by Technical Ordnance from January 19, 1983 through June 3, 1992. The affidavit also claimed that violations of 18 U.S.C. § 842(f) (failure to maintain records) had occurred. This last statement is a statement with no foundation, given the fact that Moore and ATF had apparently not gone to Minnesota to attempt to see what records Technical Ordnance had. For all they knew, all the records were in Minnesota and sufficient to satisfy the requirements of any federal agency. Moore knew he could not truthfully make such a statement. None of this was disclosed to the Magistrate. Moore based his allegation on his claim that “Hoffman stated he was only involved in U.S. Department of Defense government contracts and therefore exempt from ATF jurisdiction and record keeping” and that based upon commercial export records, Technical Ordnance was “making false statements and claiming an exemption for all activities relating to the manufacture and sale of explosive materials; either no records are being maintained for the commercial transactions, which are required by law and fall within the regulation and jurisdiction of ATF, or false records are being maintained to conceal the activity and give the appearance that the transactions are exempted undef government contract obligations.” Plaintiffs claim that their Fourth Amendment rights were violated because agent. Moore falsely stated in the affidavit that Hoffman claimed to engage in only DoD contracts when in fact Hoffman told Moore that Technical Ordnance also engages in foreign military sales with the Technical Ordnance definition of such phrase which definition was known to Moore and to ATF. Plaintiffs claim their First Amendment rights were violated when Moore and the ATF obtained and executed an invalid search warrant and prosecuted plaintiffs in retaliation for plaintiffs’ expression of opposition to the jurisdiction and regulation by the ATF. Defendants assert that the warrant application was supported by probable cause and even if it was not, Moore is entitled to qualified immunity. A-49 DECISION Plaintiffs instituted this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, supra. In Bivens, the United States Supreme Court held that civil damages suits could be maintained against federal officials for constitutional violations. Bivens, 403 U.S. at 392, 91 S.Ct. at 2002-03. A Bivens action against federal officials is almost identical to an action under 42 U.S.C. § 1983 against state officials. Christian v. Crawford, 907 F.2d 808, 810 (8% Cir. 1990). The two claims involve the same analysis and therefore cases involving § 1983 are persuasive in the Bivens context. See Waddell v. Forney, 108 F.3d 889, 890 n. 2 (8th Cir. 1997). The Court must grant a motion for summary judgment if there are no genuine issues of material fact for trial and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 US. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265(1986). The United States Supreme Court has held that: The plain language of Rule 56(c) mandates the entry of summary judgment. . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. a Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to A-50 interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact” Id. at 323, 106 S. Ct. at 2552. “A material fact dispute is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party.” Landon v. Northwest Airlines, Inc., 72 F.3d 620, 634 (8th Cir. 1995). If the non-movant's response consists of nothing more than conclusory allegations, the court must enter summary judgment for the movant. Peppers v. Coates, 887 F.2d 1493, 1498 (11% Cir. 1989). Plaintiffs contend that the defendants’ failure to set forth a Statement of Material Facts as required by D.S.D. LR 56.1 Should result in denial of their motion for summary judgment. The Court takes a dim view of counsel's failure to follow clearly established procedural rules. Nonetheless, in light of defendant's apology to the Court and the fact that the declaration in support of the motion separately sets forth the facts, the motion will be considered, Plaintiffs also contend that they cannot defend the motion for summary judgment due to the lack of discovery conducted herein. They therefore seek, pursuant to Fed. R. Civ. P. 56(f), to have the motion denied and a scheduling order entered. The primary purpose of summary judgment on the grounds of qualified immunity is “to protect governmental officials from both the burdens of trial and discovery.” Lovelace v. Delo, 47 F.3d 286, 287 (8th Cir. 1995). Both parties submitted affidavits and trial testimony as to what took place during the March 20, 1992, inspection and as to what Moore and Hoffman knew on that date and on the date of the search. Plaintiffs have not, however, been able to depose Moore or Kratochvil. They have not had access to ATF records as to plaintiffs. John Yuhas, a vice president of Technical Ordnance who had dealings with ATF, is deceased. Limited discovery is sometimes appropriate to seek to uncover additional evidence sufficient to create a genuine issue as to whether the defendants in fact violated clearly established law. Johnson v. Boreani, 947 F.2d 67, 70 (8% Cir. A-51 1991), (quoting from Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2606, 2815, 86 L. Ed, 2d 411 (1985)). Even with the lack of even limited discovery, the court is able to resolve the summary judgment motion. Were the court unable to do so, the motion would be denied to permit plaintiffs to conduct the limited discovery discussed above. The dispute arises over statements made and omitted by Moore in obtaining a search warrant for the Clear Lake facility. Moore intentionally misrepresented the facts when he told the Magistrate that Hoffmann, as president and stockholder-owner of Technical Ordnance, had told Moore that Technical Ordnance was involved in DoD work only. Moore failed to tell the Magistrate the definitions that he knew were being used by plaintiffs. He failed to tell the Magistrate the facts as to what he knew about the records being in Minnesota and the fact that ATF made no effort to go and see what was there. The issue, for purposes of the qualified immunity claim, is whether, in the absence of all this information, there would still have been probable cause for the search warrant. “Whether a given set of facts entitles the defendant to qualified immunity is a question of law,” Creighton v. Anderson, 922 F.2d 443, 446 (8th Cir. 1990). However, if there is a dispute over facts that might affect the outcome of the suit under the law of qualified immunity, there can be no summary judgment. See Anderson v. Liberty Lobby, Inc., 477 US. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). As held in George v. City of St. Louis, “[iJn the context of a police officer obtaining a warrant, immunity will be lost only where the warrant application is so lacking in the indicia of probable cause as to render official belief in its existence unreasonable.” 26 F.3d 55, 57 (8th Cir. 1994), citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271 (1986). “The issue is not whether the affidavit actually establishes probable cause, but rather whether the officer had an objectively reasonable belief that it established probable A-52 cause.” Thompson v. Reuting, 968 F.2d 756, 760 (8th Cir. 1992). In resolving the qualified immunity defense in the summary judgment context, there are four steps that need to be considered by the court: “First, the court must determine whether the plaintiff has alleged the violation of a constitutional right. Second, the court must determine whether- the right was “clearly established” at the time of the alleged violation. Third, if the constitutional right was clearly established, the court must determine whether there are material facts in dispute regarding the objective reasonableness of the defendant's conduct in light of the law and the facts known to the defendant at the time. Lastly, if the facts are undisputed, and the defendant could be found to inave acted reasonably if the conduct is viewed objectively, then summary judgment must be granted for the defendant.” Doran v. Condon, 5 F.Supp.2d 1067, 1072 (D. Neb. 1998) (quoting Cross v. City of Des Moines, 965 F.2d 629, 631-33 (8th Cir. 1992 )). In a § 1983 action, when the defendant raises qualified immunity as a defense, the burden shifts to the plaintiff to establish that the defendant violated clearly established constitutional rights. Guffey v. Wyatt, 18 F.3d 869, 871 (10th Cir. 1994). According to Creighton _v. Anderson, once the plaintiff has demonstrated that the law governing the plaintiffs rights was clearly established at the time of the defendant's acts, the defendant has the burden of proof with respect to all other elements of the qualified immunity defense. 922 F.2d at 447. Plaintiffs have alleged a violation of their Fourth Amendment rights. “The law was clearly established that the presentation of an affidavit for a search warrant that contains materially false statements of omissions, knowingly A-53 - or recklessly made in conscious disregard of the truth, violates the Fourth Amendment, when, if the affidavit is corrected to rectify the incorrect statements of omissions, no probable cause exists and a search warrant is issued because of the incorrect affidavit. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978).” Doran, at 1072-73. The burden thus shifts to the defendants to show that there are no material facts in dispute regarding Moore’s conduct in light of the law and the facts known to Moore at the time he signed the affidavit in support of the search warrant and that Moore acted reasonably if his conduct is viewed objectively. In Franks v. Delaware, the Supreme Court held that the Fourth Amendment is violated when a search warrant is issued upon an affidavit containing a falsehood if three things are established: (1) a statement is included in an affidavit for search warrant which was in fact false; (2) either (a) the statement was deliberately made with knowledge of its falsity, or (b) the statement was made with reckless disregard of the truth; and, (3) the false statement was material—that is, without the false statement the affidavit fails to establish probable cause for the issuance of the warrant. Jones v. United States, 878 F. Supp. 1290, 1293 (D. Neb. 1995), citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676- 77, 57 L. Ed.2d 667 (1978). In determining whether any of these elements exist, the court applies the following five caveats: 1) a negligent or innocent mistake is not enough; 2) a statement may be untrue because it is literally false, or because it contains omissions that render the statements false when viewed from the perspective of the judge who reviewed the search-warrant A-54 affidavit; 3) law enforcement officers cannot be expected to put everything they knc 1 a search warrant affidavit, and thus an omission .s actionable only if it is designed to mislead or is made with reckless disregard of whether it would mislead; 4) it is normally not enough to prove reckless disregard from omitted information alone; 5) even a deliberate lie or reckless disregard for the truth is not enough if considering the false statement, the search warrant affidavit as corrected would still have supported the existence of probable cause. [ones v. United States, 878 F. Supp. at 1293-94. Certain facts are not genuinely in dispute on the present record. Moore knew that plaintiffs objected to ATF jurisdiction and the inspectiou and record keeping requirements that went with that jurisdiction, but that Technical Ordnance had nonetheless obtained an ATF license for its activities. On the day of the March 1992 inspection, Technical Ordnance was working on only DoD contract work. Hoffman told Moore, however, that Technical Ordnance does engage in both DoD contract work and foreign military sales. Moore knew that plaintiffs included in their definition of foreign military sales transactions which the ATF deems commercial sales. Notwithstanding plaintiffs’ position, the inspection and explosion investigation was allowed to proceed that day, with the exception of the inspection of the bunker marked classified. When Moore inquired about record keeping, Hoffman advised Moore that the records were kept at the St. Bonifacius facility. Following the March inspection, Moore obtained information that substantiated the ATF’s position that Technical Ordnance engaged in non-exempt commercial transactions which did come under the claimed jurisdiction and record keeping requirements of the ATF. Moore did not even attempt to inspect the- St. Bonifacius facility to determine if Technical Ordnance was nonetheless keeping A-55 the appropriate records. Thus, Moore had no information at all upon which to base the assertion in his affidavit in support of the search warrant that “either no records are being maintained...or false records are being maintained....” He presented false information to the magistrate. Moore also did not have any reasonable basis to believe that Hoffman had made a false statement. On the day of the inspection, he knew that Technical Ordnance was working on only DoD contracts. Hoffman told Moore, however, that Technical Ordnance manufactured and sold products both to fulfill DoD contracts and foreign military sales, which Moore knew included what ATF considered non-exempt commercial sales. On the record before the Court, several statements included in the affidavit for search warrant were in fact false and material facts tending to show that probable cause was lacking were intentionally omitted. These statements were deliberately made with knowledge of their falsehood and incompleteness. The false and misleading statements were material in that if the affidavit had not contained false statements and had contained the omitted information, the affidavit fails to establish probable cause for the issuance of the warrant. Where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, the shield of immunity will be lost. Malley v. Briggs, 475 U.S. 335, 344, 106 S. Ct. 1092, 1098, 89 L. Ed. 2d 271 (1986). In Illinois v. Gates, the Supreme Court held that probable cause requires only the probability of criminal activity, not a prima facie showing, 462 U.S. 213, 235, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983). In the context of a qualified immunity defense, where a motion for summary judgment has been filed by the defense, the relevant question becomes “the objective (albeit fact-specific) question of whether a reasonable [defendant] could have believed (the challenged conduct) to be lawful, in light of clearly established law and the information the [defendant] A-56 possessed.” v. Crei 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987). The question for qualified immunity purposes is not “whether the judge was correct in assessing the question of probable cause, but whether the officers could have objectively believed that probable cause existed.” Kohl v. Casson, 5 F.3d 1141, 1146-47 (8" Cir. 1993). Viewing the totality of the affidavit by Moore, and the information he possessed at the time he executed the affidavit, no reasonable person under the same circumstances could have felt there was probable cause to believe that a crime was being committed. Moore knew that plaintiffs included in their definition of “foreign military sales” transactions which the ATF deemed commercial. Therefore, Moore knew that plaintiffs were not claiming Technical Ordnance was not engaging in these transactions. Although plaintiffs took the position that Technical Ordnance was therefore exempt from ATF inspection and record keeping, the inspection was allowed to continue. Moore had no evidence that Technical Ordnance was not keeping the appropriate records. A reasonable officer would have known there was no probability or even the possibility of criminal activity. A reasonable officer would have known that the dispute and the argument over definitions should have been dealt with in some administrative manner, not in the context of accusations of criminal activity, with search warrants involving two places of business. There was no emergency or any danger of records being destroyed. If Moore believed, although without any foundation therefor, that no sufficient records existed, the fact of “no records” was not going to change while the ATF proceeded administratively or in the context of a declaratory judgment lawsuit. Citizens are allowed to differ with federal officials as to what the law is without being subjected to what transpired in this case. Agent Moore is not entitled to qualified immunity from damages for his actions arising out of the presentment of the affidavit in support of the search warrant. A-57 All other claims in the amended complaint that remain are derivative of the Fourth Amendment claim. Liability for malicious prosecution and prosecution in an attempt to chill First Amendment rights depend upon the ultimate finding of whether there was probable cause for the search warrant, an issue that must be decided after discovery and trial. The motion for summary judgment as it pertains to those issues is therefore denied. | Pursuant to D.S.D. LR 7.1, the motion for summary judgment will be decided without oral argument. Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 426-427 (8th Cir. 1997). Plaintiffs’ request for oral argument, Doc. 45, has been considered and is denied. ORDER Now, therefore, ‘i IT IS ORDERED that the motion for summary judgment, Doc. 38, should be and is denied. Dated this 30th day of September, 1998. BY THE COURT: /s/ CHARLES B. KORNMANN USS. District Judge ATTEST: JOSEPH HAAS, Clerk BY: s/Gineen L. Madsen DEPUTY (SEAL) A-58 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA mi _— WW WRREREEEERERRERER KR KAR lah KCC ck TECHNICAL ORDNANCE, INC. and NORMAN H. HOFFMAN, Plaintiffs, -VS- * * * * * * UNITED STATES OF AMERICA; . DOUGLAS MOORE, Special Agent, * The Bureau of Alcohol, Tobacco, and * Firearms (“ATF”), U.S. Department * of the Treasury; and OTHER s UNKNOWN ATE AGENTS " JOHN DOE 1, JOHN DOE 2, . JOHN DOE 3, JOHN DOE 4, ° JOHN DOE 5, . True Names Unknown, ° Defendants. Sook, khkkkkkkkkkkkkkkik bbb bbb bb bbb OEE RLEREREN EERE KK RAK KKK KK cz I Plaintiffs instituted this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. § 1346, seeking redress for alleged violations of plaintiffs’ constitutional rights arising out of the procurement of search warrants, the investigation, and the prosecution of plaintiffs for unlawful manufacture, distribution and storage A-59 of explosive materials, CR 93-10025. Jury verdicts were rendered on February 18, 1994, acquitting Technical Ordnance and Hoffman of all 36 counts of the indictment in that case. Counts I, II, and Ill of plaintiffs’ amended complaint allege violations of plaintiffs’ First, Fourth, and Fifth Amendment rights. Count IV alleges a conspiracy to deprive plaintiffs of their civil rights in violation of 42 U.S.C. § 1985. Count V alleges a claim under the Federal Tort Claims Act for malicious prosecution. Count VI alleges a claim under the Federal Tort Claims Act for abuse of process. Count VII alleges a claim under the Federal Tort Claims Act for what is presumed to be intentional infliction of emotional distress upon plaintiff Hoffman. Count VIII seeks an injunction against the defendants to prohibit the continuance of an alleged policy to “disrupt, intimidate, harass, threaten, entrap, and otherwise attempt to injure plaintiffs in violation of their rights to freedom of speech and expression . . . and in violation of their rights to be secure in their liberty and property... .” This is the third time this matter has come before the Court on a dispositive motion. Defendants previously filed a motion to dismiss for failure to state a claim and to assert a defense of qualified immunity. This Court granted the motion to dismiss only as to plaintiff's Fifth Amendment, conspiracy and abuse of process claims and granted defendant Moore qualified immunity on plaintiffs’ Fourth Amendment claim that the search was unlawfully expanded beyond the warrant. Following the denial of a motion to reconsider (made in violation of the Federal Rules of Civil Procedure which rules do not allow for a motion to reconsider or a motion to reconsider the denial of a motion to reconsider, ad infinitum), defendants appealed but subsequently withdrew the appeal and instead sought summary judgment, asserting there was no genuine issue of material fact that the search warrant affidavit was supported by probable cause and again A-60 interposing the defense of official immunity. That motion for summary judgment was denied because the facts, viewed in the light most favorable to the plaintiffs, showed that the warrant application was so lacking in indicia of probable cause as to render official belief in its existence unreasonable and, therefore, agent Moore was not entitled to qualified immunity from damages for his actions arising out of the presentment of the affidavit in support of the search w urrant. Defendants have now filed two Separate motions for summary judgment. Moore contends in his motion that, following discovery, there now exists no genuine issue of material fact in the record that agent Moore’s affidavit “contained no false statements or material misleading Omissions and that a law enforcement officer could reasonably believe - as SA Moore did - that probable cause existed for a search warrant.” Moore further contends that the law in the Eighth Circuit does not clearly establish “malicious prosecution” as a constitutional injury actionable under Bivens. Finally, Moore contends plaintiffs have failed to identify any retaliatory motive to support their malicious and retaliatory prosecution claims. The United States contends in its motions that the plaintiffs’ federal tort claim for malicious prosecution is barred by sovereign immunity because the Federal Tort Claims Act waiver of immunity is limited to acts of investigative law enforcement officers and does not extend to the Assistant United States Attorneys who prosecuted plaintiffs. Even if Moore was responsible for plaintiffs’ prosecution, the United States argues, he is shielded from liability under the Federal Tort Claims Act by the discretionary exception doctrine. The United States argues that even if Moore is not shielded by the discretionary exception doctrine, plaintiffs have failed to show that the Prosecution was without probable cause or was motivated by malice. The United States also contends that plaintiffs have failed to establish the tort of intentional infliction of emotional distress. A-61 Defendants filed a motion under Fed. R. Civ. P. 35 for a mental examination of Hoffman by Dr. David Bean. Defendants contend Hoffman put his mental state in issue when he made a claim for emotional distress damages. Defendants filed a motion to strike plaintiffs’ statement of material facts in resistance to defendants’ motions for summary judgment and the declaration in support thereof. Defendants contend these items are replete with arguments, legal conclusions, hearsay, statements made without personal knowledge, and statements that are unadorned by citations to the evidentiary record. Two days prior to the motions hearing, plaintiffs filed a motion to compel the production of the ATF investigative report regarding the administrative claims filed by Technical Ordnance and Hoffman. In response to a request for such document in an interrogatory, defendants asserted that those documents were privileged. Plaintiffs alternatively seek in camerainspection of the documents to determine the validity of the claim of privilege. Defendants have submitted documents to the Court for in camerareview and have filed their opposition (Doc. 103) to the motion to compel production of the ATF report, the defendants objecting to plaintiffs seeing such report. Such documents are now under in camerareview by the Court. Although the parties were orally advised on the record at oral argument that this case was finally going to trial, defendants have now filed what they caption as a request for ruling (Doc. 110), a creature unknown to the common law or the Federal Rules of Civil Procedure. In the alternative, defendants have moved to sever and postpone the trial on the Bivens claims. This is despite the fact that this is the oldest case on the docket of this Court and the Court has recently been required to report this case as pending more than three years. Plaintiffs filed on October 22, 1999, a “notice of recent decision” (Doc. 108), attaching a copy of a case decided by the United States Court of Appeals for the Eighth Circuit on A-62 a aaa March 29, 1999. Such action was unnecessary, given the fact that this Court reads each and every decision decided in the Eighth Circuit, including the case cited. Defendants filed a motion to strike such filing by plaintiffs (Doc. 111). This Court has no intention of prohibiting counsel in any case from submitting any additional authority missed during the briefing schedule. The filing made by plaintiffs is, in any event, harmless and causes no prejudice to defendants since the Court was well aware of such “recent” decision. DECISION I. Probable Cause. The Court need not repeat here the standards for summary judgment which have been set out in previous orders. The record has not changed substantially. The plaintiffs have set forth in response to the motions for summary judgment sufficient facts which, if established at trial, would show that Moore knew that, at the time of the compliance inspection, Hoffmann objected to ATF’s jurisdiction and oversight. Despite his objections, Hoffmann had procured for Technical Ordnance the necessary ATF license as he was required by law to do. Since, despite his objections, Hoffmann complied with the law, there exists a genuine issue for trial whether or not it was objectively reasonable to assume that either no records or inadequate records existed, as alleged in the warrant application. Moore was told that the records were in Minnesota but neither he nor any other government agent went to Minnesota to see what was there. During the inspection, Hoffmann and the inspectors looked at current printouts of Technical Ordnance’s jobs in progress which showed only exempt projects were being worked on at that time. Thus, Hoffmann’s statement that Technical Ordnance is “currently” working on only DoD contracts was not inaccurate and Moore knew that. A reasonable trier of fact A-63 could conclude that Moore's affidavit was not based upon probable cause and was knowingly false. The motion for summary judgment should be denied as it relates to plaintiffs’ Fourth Amendment claim. II. Malicious Prosecution. A. Existence of Claim. The United States Supreme Court held in Albright v Oliver, 510 U.S. 266 (1994), that a constitutional claim of malicious prosecution must be grounded on an explicit constitutional provision, not on the generalized notion of substantive due process. The threshold of a constitutional malicious prosecution claim is “some deprivation of liberty consistent with the concept of ‘seizure.’” Singer v. Fulton County Sheriff, 63 F.3d 110 (2nd Cir. 1995). The Third Circuit has held that post-indictment restrictions consisting of the need to post bond, forced attendance at court proceedings, weekly contacts with pretrial services officials, and limits on out-of-state travel are enough to satisfy the “seizure” element. Gallo v. Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). Albright noted that as long as a defendant is bound to appear in court and answer criminal charges, a “seizure” of the person under the Fourth Amendment exists. Albright v. Oliver, 510 U.S. at 277-278. The record is sufficient to show a claimed Constitutional deprivation. Moore contends that plaintiffs have not shown a clearly established constitutional right to support a malicious prosecution claim. The D.C. Circuit held in 1995 that “it has not been clearly established that malicious prosecution violates any constitutional or statutory right” Moore v. Valder, 65 F.3d 189, 195 (D.C. Cir. 1995). Agent Moore misunderstands. What plaintiffs must show is a clearly established constitutional right, which they have done. It was Clearly established at the time of Moore’s conduct that lying in an affidavit in support of an application for a search A-64 warrant constitutes an illegal seizure without probable cause. Plaintiffs have a clearly established constitutional right to be free from Fourth Amendment seizures, absent probable cause. The exact nature of the cause of action, whether it be under the Federal Tort Claims Act, a Bivens action, or whatever need not be clearly established at the time of the offense. That Moore’s alleged conduct was wrongful was clearly established. There exists a cause of action for such wrongful conduct and that cause of action is malicious prosecution. B. Moore's Responsibility. Moore and the United States contend that since Moore was not personally responsible for the decision to indict and prosecute, he cannot be held personally responsible. Moore cites several cases in support of his claim, including Albright v Oliver, supra and Ames v. United States, 600 F.2d 183 (8th Cir. 1979). However, Ames recognized that a “specific allegation, such as the presentation of false evidence or the withholding of evidence” may nullify the general rule that “the grand jury indictment breaks any chain of causation linking the employees’ activities to the institution of criminal proceedings, thus insulating the F.BI. and Justice Department employees from tort liability.” Ames v. United States, 600 F.2d at 185; Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (“(A] prosecutor’s decision to charge, a grand jury’s decision to indict, a prosecutor's decision not to drop charges but to proceed to trial—-none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decis [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0838%3A2. Public record. Not legal advice.