Opposition Brief — Gregory v. Lee

Robert Q. Lee for many years. /d. Julian cursed and hung

up the telephone. /d

Agent Gregory was “a little upset” when Julian hung

up on him. (C.A.E.R. 197, 310). Although he had known

that there was an outstanding arrest warrant in Florida

for a “Christopher Lee,” since he had received the lead in

July, 1999 and had done nothing with respect to it, Greg-

ory now acted. (C.A.E.R. 172-173). Immediately after the

telephone call in which Mr. Lee complained of Gregory's

actions, cursed and then hung up, Gregory telephoned the

Dade County Sheriff's Office and had that office fax him a

copy of the 1998 Florida state warrant for “Christopher”

Lee. (C.A.E.R. 79-80, 197)

The same day, April 21, 2000, Gregory called the San

Diego Sheriff's Department's Encinitas Substation and

“briefed” the watch commander, Sergeant Bulow. (C.A.E.R

80). He then faxed Sergeant Bulow a copy of the Florida

warrant. /d. Within 30 minutes of his call with Sergeant

Bulow, Gregory appeared at the Encinitas Substation

(C_A.E.R. 218-219). He told Sergeant Bulow that there was

a “Florida warrant for a man living in Encinitas, Califor

nia” and asked Bulow if the Sheriff's Department “could

help serve it.” (C.A.E.R. 219). Gregory gave Bulow Mr

Lee’s address and a description of his car. Jd. Gregory told

Bulow that “the suspect is a large man” and gave Bulow

the copy of the warrant. /d

Gregory gave Julian's home address to Sergeant

Bulow and said that address was where Christopher Lee,

the Florida warrant suspect, lived. (C.A.E.R. 219, 224,

312). Agent Gregory also gave Sergeant Bulow a descrip

tion of Julian's car and told him it belonged to the same

Florida warrant suspect. (C.A.E.R. 219, 312

Gregory never informed Bulow that the warrant

might not pertain to Julian Lee; nor did he disclose to

Bulow that Robert Q. Lee had misappropriated Julian

Lee’s middle name, social security number and date of

birth. (C.A.E.R. 100-101). He did not suggest that the

applicability of the Florida warrant to Julian Lee required

any inquiry before the sheriffs executed the warrant

(C.A.E.R. 101)

Sergeant Bulow then told San Diego County Sheriff's

Deputy John Maryon and his partner, Deputy Marco

Garmo about the warrant. (C.A.E.R. 221, 311). At one

point Maryon called Gregory because he was curious about

how Gregory had obtained the warrant. (C.A.E.R. 222,

311). Gregory told Maryon that he wanted to be contacted

when Julian was arrested so he could talk to Julian

(C.A.E.R. 223)

In deposition, Agent Gregory said he did not remem-

ber what information he had given to the state deputies

after unequivocally telling Bulow that Julian Lee was the

subject of the Florida warrant

Q: Did you advise Deputy Maryon that the

Plaintiff's identity had been misappropri-

ated by the Plaintiif’s brother?

I don’t remember whether I advised him of

that

Did you tell him that the federal fugitive

had used the alias “Christopher” Lee?

I don't remember if I told him that or not

Didn't you tell them that you were investi-

gating a fugitive who had used the alias

Christopher Lee?

9

A: I don’t remember if I told them that.

Q: What could refresh your recollection?

A: Perhaps Divine Intervention. (C.A.E.R. 312).

Deputy Maryon swore that:

At no time during my contact with Gregory did he

inform me that the warrant did not apply to the

plaintiff, that the warrant’s applicability to plain-

tiff needed to be investigated, that plaintiff's iden-

tity including his name, social security number and

date of birth had been misappropriated by plain-

tiffs brother or that plaintiff’s brother used plain-

tiff’s name as an alias. (C.A.E.R. 231).

Garmo and Maryon both testified that they would never

have arrested Julian if Agent Gregory told them that

Robert Q. Lee had misappropriated his identity. (C.A.E.R.

212, 312-313).

Deputy Garmo testified

Q: In other words, Maryon never told you that

he had learned from the FBI that the FBI

had knowledge that the wanted brother of

this person had misappropriated his identity

and was going under that name?

No. The FBI never gave us that information

If. in fact, if we had that information, we

would not have arrested him....

But what you just said was that if the FBI

told you that the wanted brother had used

this man’s identity, you wouldn't have ef-

fected the arrest?

10

A: Of course not. It would have been an unlaw-

ful arrest

(C.A.E.R. 211-212).

On May 4, 2000, Deputy Maryon and his partner,

Garmo, arrested Julian on the Florida warrant as Julian

was driving to the store. They decided not to do a felony

hot stop because Julian seemed like a “nice guy” and

“didn’t seem to be too much a threat.” (C.A.E.R. 225-226

313). Julian was very “cooperative” during the arrest

(C.A.E.R. 90, 313). Julian told the deputies that he was

not the person wanted by the warrant, that he had never

been to Florida; and that his brother was using his identi-

fication. (C.A.E.R. 313). Julian repeatedly told the depu-

ties they were making a mistake, “several times, over and

over.” /d.

As he had promised, Maryon telephoned Gregory, who

arrived at the station within 15-20 minutes. Gregory spoke

to Julian, who was in a holding cell. (App. 30). Gregory

told Julian:

Are you ready to talk to me now? The last time |

talked to you, you had an attitude. Do you want

to go home? Do you want to get out of here ‘to

night? Then tell me where your brother is

Id. Gregory also told Julian Lee, “If you want to get out of

this Florida situation, you better talk to me now about

your brother, otherwise you will be staying here in jail.”

Id.

Julian told Gregory that he did not know where his

brother was and that he had not seen him for many years

Id. He told Gregory that his brother had been using his

name and social security number and that his family

1]

actually learned this information from the FBI itself,

several years earlier. Jd

Julian Lee told Gregory that Julian had never been to

Florida; he said that he was not the person named in the

warrant; he pointed out that he was several inches taller,

almost 100 pounds heavier (he weighed 290 pounds on the

day of the arrest); had a different hair style, different color

eyes, and a different complexion. Julian told Gregory that

Gregory could call Julian’s “job” and that his employers

could verify that he had been working there since June,

1998 and could not have committed a crime in Florida in

December, 1998. (App. 30-31)

Julian Lee asked Gregory to “check” because Gregory

was arresting the wrong person (App. 31). Gregory smiled

and asked again for information regarding Robert Lee. Jd

When Julian Lee stated, at one point, that he was not the

person named in the Florida warrant and had never been

in Florida, Gregory did not object. Jd. Gregory smiled and

stated that Julian Lee’s name and the name on the war-

rant were the same. /d. Gregory said that, if Julian

wanted to clear the matter up, he had better provide the

information Gregory wanted. /d. After Julian Lee reiter-

ated that he had no information about his brother, Greg-

ory smiled again, threw up his hand and said, “Have a nice

flight to Florida.” Jd

Julian Lee filed a complaint against Gregory pursuant

to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) and against the

United States under the Federal Tort Claims Act, 28

U.S.C. §§ 1346(b), 2671, et seg. The complaint alleged in

its Bivens action that Gregory's actions had violated, inter

alia, (1) Julian Lee’s First Amendment right to speak as he

12

felt appropriate to government agents without threat of

vindictive governmental reprisal or retaliation; and (2)

Julian Lee’s Fourth Amendment right to be free of unrea-

sonable search and seizures and to be free of arrests

without probable cause. (App. 9). The First Amendment

claim was based upon City of Houston v. Hill, 482 U.S. 451

(1987) (the arrest of a citizen for protesting a police action

is a violation of the First Amendment). The First Amend-

ment claim was an intent-based tort under Craw/ford-Fi v.

Britton, 523 U.S. 574 (1998).

The complaint alleged that “.. . by causing the arrest

and continued detention of Julian Lee, defendant Gregory

arrested him without probable cause, in an unreasonable

manner, under circumstances that would lead a reason-

able person to believe that there was no probable cause to

arrest Julian C. Lee.” Jd.

The Bivens count alleged that Gregory caused the

arrest and continued detention “to retaliate against Julian

C. Lee for what Mr. Lee had said to Gregory in enunciat-

ing his complaints with Gregory's action, which comments

were protected by the First Amendment.” (App. 10).

Count one sought punitive damages against Gregory

based on the oppressive, fraudulent and malicious nature

of the conduct. (App. 11). The complaint also alleged,

under the Federal Tort Claims Act, the following causes of

action in these counts: (2) a violation of the Unruh Act, a

state statute (California Civil Code § 51, et seq.); (3) false

arrest and false imprisonment; (4) malicious prosecution,

which alleged a favorable termination of the extradition

action and that Gregory acted with malice; (5) abuse of

process; (6) battery; (7) intentional infliction of emotional

distress; (8) negligence; (9) negligent infliction of emotional

13

distress; (10) negligent supervision and training; and (11)

negligent hiring and retention.

Defendants Gregory and United States filed a motion

to dismiss under Rule 12(b)(6) of the Federal Rules of

Criminal Procedure and an early motion for summary

judgment. The district court dismissed counts 2, 10 and

11, denied the balance of the motion to dismiss, and ruled

that the complaint stated a claim sufficient to permit

discovery. (C.A.E.R. 27-44). The district court’s ruling on

this motion belies Gregory’s claim that the court relied

upon some impermissible “subjective” test in permitting

the case against him to go forward.

Plaintiff argues that the analysis focuses on

whether a “reasonable officer could have believed

that probable cause existed to arrest” Plaintiff.

Hunter v. Bryant, 502 U.S. 224 (1991). This is an

objective analysis, focused on a reasonable officer

confronted with the facts and circumstances ac-

tually known to the defendant officer. Act Up!/

Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.

1993). Plaintiff further argues that it has been

clearly established that a valid arrest under a

warrant may only occur if the arresting officers

reasonably believe the arrestee is the person

sought in the warrant, citing to Hill v. Califor-

nia, 401 U.S. 797 (1971). In Hill, the Supreme

Court found that “sufficient probability” is the

touchstone of reasonableness under the Fourth

Amendment. /d. at 804.

After an analysis of the applicable law, the court

finds that the Plaintiff has sufficiently demon-

strated that Agent Gregory may face § 1983/

Bivens liability “for executing a warrant in an

unreasonable manner.” See Bergquist v. County

of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986)

14

(overturned on other grounds by City of Canton

v. Harris, 489 U.S. 378 (1989)), and specifically

for the arrest of a person with a warrant when

the officer believes that the person is not the one

named in the warrant. Accordingly, the relevant

question for the court is: Would a reasonable offi-

cer confronted with the facts and circumstances

actually known to Agent Gregory have deter-

mined that there was a sufficient probability that

Plaintiff was the person named in the Florida ar-

rest warrant? (C.A.E.R. 35)

The district court’s ruling also addressed the mental

element to be proven on the issue of the false arrest cause

of action alleged under the Federal Torts Claims Act,

which required proof of malice. (C.A.E.R. 42-43).

After discovery Gregory filed a motion for summary

judgment as to the Bivens claim, while the United States

sought judgment on the Federal Torts Claims Act causes of

action. Gregory argued that, because he himself did not

perform an arrest or take Mr. Lee into custody, he violated

no federally protected right of Mr. Lee. He argued that,

because the Florida warrant was “facially valid” and

matched Julian Lee’s name, gender, race, date of birth,

and social security number, Gregory's “limited role” in

obtaining a copy of the felony arrest warrant from law

enforcement authorities in one state and then providing it

to local law enforcement authorities elsewhere “did not

give rise to any constitutional violation.” Finally, Gregory

argued that there was no clearly established law by which

a reasonable agent could know of the illegality of the

conduct

The district court denied Gregory's motion for sum-

mary judgment, holding that procuring an unlawful arrest

y Juegm ~ Pp g

15

can give rise to liability and finding that factual disputes

made summary judgment inappropriate. (C.A.E.R. 232-

246). The district court found that factual disputes as to

whether Gregory acted with malicious intent precluded

summary judgment on the false arrest, malicious prosecu-

tion and abuse of process causes of action. (C.A.E.R. 242-

243).

The Court of Appeals’ ruling on Gregory’s interlocu-

tory appeal rejected Gregory's claim that he could not be

liable because he did not personally effect the arrest. It

held that Gregory’s intent or motive in causing Julian

Lee’s arrest was irrelevant to the analysis of Mr. Lee’s

Fourth Amendment claim. This claim, the Court held,

must be resolved on an objective standard based on Greg-

ory’s actual knowledge of the facts at the time of Julian's

arrest. Gregory’s claim, that no reasonable officer could

believe that causing the arrest of the wrong person is

against clearly established law. was re*~~ted.

ARGUMENT

There Is No Jurisdiction Under Johnson v. Jones

Counsel for Julian Lee wishes to bring to the Court’s

attention that the Court of Appeals that rendered the

decision was without jurisdiction to do so and that this

court is without jurisdiction to act on the petition for

certiorari. Gregory's appeal presented the following

issue for review as the sole question for determination

by the Court of Appeals: “Whether, in this Bivens action

alleging Fourth Amendment violations arising out of

plaintiff's arrest in a case of mistaken identity, the

district court erred in concluding that triable issues of

material fact exist that preclude granting summary

16

judgment to FBI agent Gregory, based on his claim of

qualified immunity.” (Gregory’s opening brief, p. 2). John-

son v. Jones, 515 U.S. 304 (1995), which holds that a

defendant entitled to invoke a qualified immunity defense

may not appeal a district court’s summary judgment order

insofar as that order determines whether or not the

pretrial record sets forth a “ger:uine” issue of fact for

trial compels that conclusion that the Court of Appeals

was without jurisdiction to determine Gregory's inter

locutory appeal pursuant to 28 U.S.C. § 1291.

Gregory may seek this Court’s review by arguing

that in rendering its decision, the Court of Appeals ruled

on an issue of law that is now appropriate for review on

certiorart. Given the single issue, however, as presented

to the Court of Appeals by Gregory, the Court of Appeals

was without jurisdiction ab initio.

The factual statement upon which Gregory bases his

petition argues the facts in the light most favorable to

him. He omits critical facts adverse to his petition and

colors others in a misleading way. For example, he says,

“At the same time, FBI records indicated that respon-

dent’s brother, Robert Lee, might have used ‘Christo-

pher Lee’ as an alias.” (Pet. 3). There is no “might” in

the evidence. The state prosecutor wrote that the infor-

mation received “is that subject has changed his name

to Christopher Lee, d.o.b. 3/7/67 .. .” (App. 33). The FBI

agent swore before the magistrate that “Robert Q. Lee

has changed his name to Christopher Lee.... ” (App.

38). The magistrate judge issued a federal arrest war-

rant for “Robert Q. Lee, a/k/a Christopher Lee” based on

the outstanding complaint against Robert Q. Lee, a/k/a

Christopher Lee (App. 35). Gregory asserts that “the

social security number, date of birth, race and gender

17

listed on the warrant were all exact matches for respon-

dent,” (Pet. 3) but fails to disclose that Gregory knew

that Robert Lee had used the respondent’s date of birth

and social security number. (C.A.E.R. 56, 117-119, 289)

Gregory's lawyer on appeal tells the court “one factor

beyond the matching social security number and birthday

pointed decisively toward the conclusion that respondent

and not his brother was the person sought by Florida

authorities. The FBI description of respondent's brother

indicated that he had multiple identifying marks, includ-

ing scars on his neck and thigh and a tattoo on his left

forearm. (C.A.E.R. 85). The Florida warrant’s ‘scars or

tattoos’ line did not list any identifying marks. /d. at 83.”

(Pet. 4)

Gregory’s petition does not reveal that this “decisive”

factor was never mentioned by Gregory in his affidavit,

nor at any time during his depositions; that there is no

evidence Gregory ever read or even knew of any issue

concerning “scars or tattoos” anywhere in the record; that

Gregory never mentioned this “decisive” fact in any plead

ing filed in the district court, including his two motions for

summary judgment. Nor does Gregory reveal that this

“decisive” fact was never presented to the Court of Appeals

in any briefs nor in his petition for rehearing en banc. The

fact was apparently discovered during the preparation of

his certiorari petition. It now forms a “decisive” part of the

basis for his argument

In these instances and throughout his factual! presen-

tation, Gregory has relentlessly violated the rule requiring

that the issue of qualified immunity be determined on the

basis of facts in the light most favorable to the party

claiming the violation; that on appeal, the facts must be

18

taken in the light most favorable to the non-moving party.

He complains that: “In answering that question, the Ninth

Circuit did not identify any dispute about the evidence

before Agent Gregory — i.e., what agent Gregory saw and

heard.” (Pet. 7). Of course this is true. Gregory's right to

bring an interlocutory appeal requires that the question on

the appeal be one presenting “neat abstract issues of law”

in which “purely legal matters are at issue.” Johnson v.

Jones, 514 U.S. 304, 316-317 (1995). Gregory’s argument,

as he presses it here, is an attempt to appeal the district

court’s order, on issues of fact. Gregory so distorts the

factual record as the basis for his legal argument that,

after complaining at length that the Court of Appeals has

improperly smuggled subjectivity back into Fourth

Amendment qualified immunity analysis, he is moved to

assert, “The evidence, moreover, shows that agent Gregory

subjectively believed respondent was named in the Florida

warrant.” (Pet. 26)

Gregory's petition, to be sure, repeatedly attempts to

trick out a legal issue. This he does by constantly inserting

his parenthetic rephrasing of the Circuit Court's actual

holding, e.g.: “ by asserting that agent Gregory actually

knew” —i.e., that Gregory subjectively concluded from the

evidence before him (Pet. 9); and alleging that the

officer effected the seizure knowingly — i.e., after subjec-

tively concluding that the suspect was innocent.” (Pet. 11)

Gregory's argument is premised on assertions of disputed

facts. He faults the Ninth Circuit for failing to ask, as an

objective matter, whether the disputed facts he posits

would provide an objectively reasonable basis for an

arrest. (Pet. 13). Although Gregory does not formally label

his petition as one which raises the issue of whether the

pretrial record sets forth a “genuine” issue of fact for trial,

19

his petition has done so in substance, under the guise of

seeking resolution of a legal question. Johnson makes clear

that there is no appellate jurisdiction for an interlocutory

appeal of an order denying qualified immunity insofar as that

order determines wh. ther or not the pretrial record sets forth

a “genuine” issue of fact for trial. Johnson, supra, at 309, 320

The unanimous court in Johnson described the harm which

promiscuous litigation of interlocutory appeals can cause,

including delay and wasted, unnecessary work by appellate

courts. /d. at 309. The Court noted that questions about

whether or not a record demonstrates a “genuine” issue of fact

for trial, if appealable, can consume inordinate amounts of

appellate time. /d. at 316. The Johnson Court held

We recognize that, whether a district court's denial

of summary judgment amounts to (a) a determina-

tion about preexisting “clearly established” law, or

(b) a determination about “genuine” issues of fact

for trial, it still forces public official to trial. See

Brief for Petitioners 11-16. And to that extent, it

threatens to undercut the very policy (protecting

public officials from lawsuits that (the Mitchell

Court held) militates in favor of immediate ap-

peals. Nonetheless, the countervailing considera-

tions that we have mentioned (precedent, fidelity

to statute, and underlying policies) are too strong

to permit the extension of Mitchell to encompass

appeals from orders of the sort before us

515 U.S. at 317-318

Gregory's appeal, albeit nominally one which states a

legal question for review, in substance is so intertwined

with his disputed factual submission that it requires

application of the Johnson rule. Gregory's legal question,

and his petition as presented, is merely a sub rosa attempt

to obtain appellate review of factual issues by this Court,

20

which should not be forced into sitting as a district court

judge to parse disputed submissions of fact or asked to

determine a “legal” issue in a fact-bound, fact-based case

when the facts are in dispute. Even if Gregory’s petition

presents a valid legal question for which review under 28

U.S.C. § 1291 would be appropriate, by relying, as he does,

on disputed factual submissions, by slanting the record in

the light most favorable to him, and by relying on factual

arguments that were neither raised in the district co irt

nor considered or relied upon by the Court of Appeals (e.g.,

the issue of scars and tattoos), Gregory has run head-on

into Johnson’s policy. He has submitted, at best, a legal

issue whose resolution will require the Court to deal in

extenso with disputed factual issues, a problem he has

caused by the improper factual submission in his petition.

The Court should deny his petition for lack of jurisdiction.

An Examination Of Gregory’s

Knowledge is Critical To Determine

The Reasonableness Of His Conduct

Gregory's semantic attempt to convert the inquiry into

Gregory's knowledge of relevant fact into a proscribed

inquiry into motive must fail. While intent or motive are

ordinarily not relevant to Fourth Amendment analyses,

the officer’s knowledge of facts is critical to a determina-

tion of the objective reasonableness of his conduct.

Whether an arrest is constitutionally valid depends on

whether, at the time the arrest is made, the officers have

“facts and circumstances within their knowledge and of

which they had reasonably trustworthy information”

sufficient to warrant “a prudent man in believing that the

person to be a ‘rested had committed or was committing an

offense.” (em; «sis added) Beck v. Ohio, 379 U.S. 89, 91

21

(1964), citing Brinegar v. United States, 338 U.S. 160, 175-

176 (1949). Henry v. United States, 361 U.S. 98, 102

(1959); See also Saucier v. Katz, supra, at 207; Hunter

Bryant, supra, at 228. This Court has consistently held

that examination of the officer’s knowledge is the sine qua

non to determine probable cause: “Whether probable cause

exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the time of

the arrest.” Devenpeck v. Alford, 543 U.S. 146 (2004),

citing Maryland v. Pringle, 540 U.S. 366, 171 (2003). To

assess whether probable cause exists, one must ask

whether the facts actually known to the officer are suffi-

cient to constitute probable cause. The Fourth Amendment

inquiry is whether the officer’s actions are objectively

reasonable in light of the facts and circumstances con-

fronting him. Graham v. Connor, 490 U.S. 386, 397 (1989)

The Court's qualified immunity jurisprudence, while it

eschews inquiry into motive, requires an analysis of what

the officer actually knew:

It follows from what we have said that the de-

termination whether it was objectively legally

reasonable to conclude that a given search was

supported by probable cause or exigent circum-

stances will often require examination of the in-

formation possessed by the searching officials

Anderson v. Creighton, 483 U.S. 635, 641 (1987)

The question of what the officer knew permits an

officer to explain that he reasonably believed something

which turned out to be wrong. Gregory relies on the

principle that “when the police have probable cause to

arrest one party, and when they reasonably mistake a

second party for the first party, then the arrest of the

second party is a valid arrest.” Hill v. California, supra, at

802

If the officer reasonably believes something which

turns out to be mistaken, he is entitled to qualified immu-

nity. The “objective reasonableness” standard gives ample

room for mistaken judgments Malley v. Briggs, 475 US.

335, 343 (1986). To determine whether a judgment is

based on a reasonable mistake, the question must be

asked as to what the officer reasonably believed. Thus, the

inquiry into whether an officer acted reasonably requires a

determination of what was in the official’s mind; i.e., what

did he know, what did she believe? Then the question

becomes whether the officer acted in an objectively rea-

sonable way based on that knowledge. A blanket condem-

nation of inquiry into what the official had in his mind, as

a probing into alleged “subjective belief,” misses the mark.

The fact is, before the court can judge the objective rea-

sonableness of an officer’s action, it must make an inquiry

into what was in the officer’s mind — what were the facts

and circumstances as he or she reasonably believed them

to be. This Court’s cases do hold that an officer’s intent or

motive does not invalidate an action which is objectively

reasonable, based on the facts and reasonable beliefs and

inferences in that officer’s mind. One “subjective” inquiry

is forbidden: what was the private motive or intent?

Another “subjective” inquiry is mandated under Beck v.

Ohic: what did the officer know or reasonably believe? The

determination of objective reasonableness and hence, of

qualified immunity starts with this question which, of

necessity, re. uires evidence of what the officer believes

the facts to be

23

Gregory’s Conduct, In Light Of

His Knowledge, Was Unreasonable

The legal question, based on a proper rendition of

facts, is whether, in light of his actual knowledge of the

facts, Gregory’s actions in causing state officers to arrest

Mr. Lee and his failure to disclose to the arresting officer

the relevant facts of which he had knowledge, were rea-

sonable. Gregory had actual knowledge that (1) Julian

Chnstopher Lee was 6'3" and weighed 270 pounds; (2)

Robert Q. Lee, Julian’s brother, was a fugitive who had

changed his name to Christopher Lee, and had misappro-

priated Julian’s date of birth and social security number;

(3) in 1994, Robert Lee was described as being six feet tall

and weighing 180 pounds; (4) in his career Gregory had

never seen a discrepancy between a warrant description

and the subject to be greater than 30 to 40 pounds; (5)

Julian Lee had no previous criminal record; (6) a witness

had stated that Julian Lee’s physical characteristics did

not fit the warrant description, and the same witness,

reviewing a photograph of Robert Q. Lee a/k/a Christopher

Lee, had stated that the person depicted was not respon-

dent Julian Lee; (7) the federal complaint and affidavit,

and the warrant for the fugitive, were for Robert Q. Lee,

a/k/a Christopher Lee; and (8) FBI records showed that

there was a possibility that Robert Q. Lee had lived in the

Southeastern United States, but there was no evidence

that Julian Lee had ever been in or lived in Dade County,

Florida, from where the state warrant issued.

Having actual knowledge of these facts, Gregory then

obtained a copy of the Florida State warrant for “Christo-

pher Lee,” called local California authorities, and repre-

sented unequivocally that Julian Lee was the subject of

the Florida warrant, asking that he be notified when they

arrested Mr. Lee. Gregory failed to disclose to the state

official that there were significant discrepancies between

the subject of the warrant and Julian Lee and that the

fugitive he was seeking had assumed Mr. Lee's identity,

including his middle name, date of birth and social secu-

rity number. Gregory even failed to tell the state officers

that there might be some question or issue that the person

he told them was the one to be arrested on the Florida

warrant might not be the right one. In reliance on Greg-

ory’s representation, the state officials then arrested Mr.

Lee, which they assert they would never have done, had

Gregory disclosed the facts. The deputies ignored Julian

Lee’s protestations of innocence at the time of his arrest.

When Julian Lee explained to Gregory that his brother

Robert has assumed Julian's identity and that Julian was

grossly dissimilar to the suspect described in the Florida

warrant (all of which Gregory already knew to be true),

Gregory informed neither the California deputies nor the

Florida officials of any of the facts, leaving Mr. Lee to be

held in custody and extradited.

Gregory's conduct in this case was patently unreason-

able. If the officers in Baker v. McCollan, 443 U.S. 137

(1979) had known when they arrested Linnie Baker that

his brother Leonard had procured a duplicate license, and

had assumed Linnie’s identity, they would never have

arrested him. When the jailer discovered that Linnie’s

brother had assumed Linnie’s identity, he immediately

released Linnie Baker from custody

In Hill v. California, supra, the Court was clear that

the officers made a reasonable mistake in arresting the

wrong person. Gregory's defense, that he should not be

subject to suit because he made a reasonable mistake, is

meritless.

There Is No Actual

Conflict Among The Circuits

Gregory contends that the First Circuit's decisions in

Floyd v. Farrell, 765 F.2d 1 (1985) and Brady v. Dill, 187

F.3d 104 (1999) conflict with the Ninth Circuit’s holding in

this case.

He is wrong. Floyd v. Farrell held that:

Probable cause exists when facis and circum-

stances within the arresting officer’s knowl-

edge and of which he had “reasonably trustworthy

information” warrant a reasonable belief that the

defendant is committing or has committed a

crime .. . 705 F.2d 1, 5 (emphasis added).

The Harlow standard requires that we make an ob-

jective analysis of the reasonableness of conduct in

light of the facts actually known to the officer

and not consider the officer’s motives for conduct to

be considered in evaluating a qualified immunity

defense. 705 F.2d 1, 6 (emphasis added).

This decision holds:

Allegations of ulterior motives cannot invalidate

police conduct that is justified by probable cause.

Whren v. United States, 517 U.S. 806, 811-15

(1996). Thus, if Gregory’s motive in causing

Julian’s arrest was to squeeze Julian for infor-

mation about Robert, Whren does render such

motive irrelevant. However, Gregory’s contention

ignores the fact that his conduct must be “objec-

tively reasonable in light of the facts and circum-

stances confronting him without regard for [his]

underlying intent or motivation. Graham v. Con-

nor, 490 U.S. 386, 397 (1989) (emphasis added).

Gregory's actions are not impugned because of

26

his motive but because of his claimed knowledge

that Julian was not the person named in the

Florida arrest warrant.

Julian contends that in light of the facts and cir-

cumstances confronting Gregory, Gregory actu-

ally knew that the Florida warrant applied not to

him but to Robert. The district court found the

evidence presented a genuine issue of material

fact as to whether Gregory actually knew that

the warrant did not apply to Julian. We may not

review that determination. We may not review

that determination. Mendocino Envtl Ctr, 192

F.2d at 1291. Gregory's contention that his actual

knowledge should be ignored is completely

without merit. (Pet. App. 7a).

Farrell requires that the analysis be based on what is

“actually known”. This case states that the Court must

look to material facts within the officer’s “actual knowl-

edge”. Gregory may object to the Court of Appeals’ applica-

tion of the legal standard to the facts of this case, but the

legal standard in Farrell is the same as the standard here.

There is no conflict.

Brady v. Dill is simply inapposite to the instant case.

Brady took pains to note:

We emphasize that we are dealing here with a

situation in which the troopers arrested and took

into custody the individual who was named in a

facially valid warrant. If the police were to

mis-execute a warrant, i.e., if they were to arrest

someone other than the person named in the

warrant because of mistaken identities, a

different case would arise.

187 F.3d 104, 115 n.10 (emphasis added).

27

The Law Provides Ample Protection

For Officers Who Arrest The Wrong

Person, Acting Reasonably But By Mistake

Gregory’s lament that this case presents a future peril

for law enforcement officers who will be subject to attack

by clever plaintiffs’ lawyers is unfounded. This Court’s

jurisprudence provides ample protection for officers who

effect mistaken arrests. The two-party analysis of Saucier

v. Katz, supra, coupled with the protection of Anderson v.

Creighton, supra, insure that officers who arrest the wrong

person are immune from suit, if they act reasonably, based

upon the knowledge they have at the time of the arrest.

The “objective reasonableness” standard gives ample room

for mistaken judgments. Malley v. Briggs, 475 U.S. 335,

343 (1986). The requirement that the assessment of

qualified immunity be based upon the officer’s actual

knowledge is no threat to law enforcement. By focusing on

what the officer knew at the time, it allows ample room for

reasonable mistake. It will insure that qualified immunity

will protect “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, at 341.

The standard also permits the innocent injured to

seek redress from those few who, like Gregory, act in a

clever but unconstitutional way.

Respectfully submitted,

EUGENE G. IREDALE, Esq.

LAW OFFICES OF EUGENE G. IREDALE

West F Street, 4th Floor

San Diego, California 92101

TEL: (619) 233-1525

FAX: (619) 233-3221

App. 1

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

JULIAN C. LEE, CASE NO. 01CV0739-K(RBB)

an individual, PLAINTIFF'S FIRST

Plaintiff, AMENDED COMPLAINT FOR:

V (1) Bivens Action

JAKE GREGORY, 2) Unruh Act

UNITED STATES

OF AMERICA,

and DOES 1 ‘ Malicious Prosecution

through 10, inclusive,

False Arrest/Imprisonment

Abuse of Process

Defendants Battery

Intentional Infliction of

Emotional! Distress

Negligence

Negligent Infliction of

Emotional Distress

Negligent Supervision and

Training

Negligent Hiring and

Retention

JURY DEMAND IS

HEREBY MADE

COMES NOW, Plaintiff JULIAN C. LEE, by and

through his attorneys of record, Law Offices of Fugene G.

Iredale, by Eugene G. Iredale, Esq. and Law Offices of

Douglas S. Gilliland, by Douglas S. Gilliland, Esq. and

allege and complain as follows:

App. 2

L.

GENERAL ALLEGATIONS

1. Jurisdiction is proper in the United States District

Court for the Southern District of California pursuant to

28 U.S.C. §1331 and 28 U.S.C. §1346(b)(1), et. seg. Venue

is proper because at all times relevant hereto, all of the

acts or omissions giving rise to the liability of these defen-

dants occurred in San Diego County, California.

2. Plaintiff Julian C. Lee’s claim under the Federal

Tort Claims Act was timely filed on October 20, 2000 and

was denied on April 24, 2001 by the United States De-

partment of Justice — Federal Bureau of Investigation by

the letter attached hereto as Exhibit 1 and incorporated

herein by reference, thereby satisfying the Federal Tort

Claims Act claim form requirements.

3. At all times relevant to this complaint, Plaintiff

JULIAN C. LEE was an individual residing in San Diego

County, California.

4. At all times relevant to this complaint, the Fed-

eral Bureau of Investigation was a federal agency of

defendant UNITED STATES OF AMERICA and was

operating in San Diego County, California through, in

part, its agent Defendant JAKE GREGORY.

5. At all times relevant to this complaint, Defendant

JAKE GREGORY was an individual employed by the

Federal Bureau of investigation, and was at all times

hereto working within the course and scope of that em-

ployment and the acts and/or omissions of Defendant

JAKE GREGORY, intentional or otherwise, were en-

dorsed, ratified and approved by Defendant UNITED

STATES.

App. 3

6. Plaintiff LEE is truly ignorant of the true names

and capacities of DOES 1 through 10, inclusive, and will

amend this complaint once their identities have been

ascertained as well as the facts giving rise to their liability.

These defendants were agents, servants and employees of

each other or of the other named defendants and were

acting at all times within the full course and scope of their

agency and employment, with the full knowledge and

consent, either expressed or implied, of their principal

and/or employer and each of the other named defendants

and each of the defendants approved or ratified the actions

of the other defendants, thereby making the currently

named defendants herein liable for the acts and/or omis-

sions of their agents, servants and/or employees.

Il.

FACTS

Plaintiff, JULIAN C. LEE hereby realleges para-

graphs 1 through 6 of this Complaint and incorporates the

same by reference as if these paragraphs were fully set

forth herein.

7. Plaintiff JULIAN C. LEE was born on March 7,

1967, at Fort Bragg in Fayetteville, North Carolina while

Mr. Lee’s father was in the Army. After his honorable

discharge, Plaintiff JULIAN C. LEE’s father raised the

family in New Jersey where he was a Willingsborough,

New Jersey police officer.

8. After high school, Plaintiff JULIAN C. LEE joined

the United Stated Marine Corps. Plaintiff JULIAN C. LEE

graduated in the top of his class and became a weapons

instructor in Quantico, Virginia. At Quantico, Plaintiff

App. 4

JULIAN C. LEE taught classes in weapons and static

displays to FBI Agents, DEA Agents and officers from

every branch of the armed services

9. When Desert Storm began, Plaintiff JULIAN C.

LEE was transferred to Camp Pendleton where he was a

section leader in a weapons company. His unit was trans-

ferred to Pakistan where it was involved Desert Storm’s

Desert Shield strategy and “island hopped,” freeing allied

prisoners of war

10. After his military service, Plaintiff JULIAN C

LEE returned to California to begin his civilian life

Plaintiff JULIAN C. LEE worked as a foreman with the

San Diego Gas and Electric Company and later for Conti-

nental Central Credit. When his father had a stroke,

Plaintiff JULIAN C. LEE went into commercial fishing in

Alaska and worked 7 days a week so he could help pay his

father’s medical bills and help buy his parents a house

that would accommodate his father’s wheelchair.

11. After helping to buy his parents a house, Plain-

tiff JULIAN C. LEE moved back to California. In July of

1998, he resumed work in the collection industry working

for Household Automotive Finance. Plaintiff JULIAN C

LEE has worked with Household Automotive Finance

continually since July of 1998 (and sends his parents

$500.00 every month). Plaintiff JULIAN C. LEE is an

impressive, upstanding citizen. He has never been in

trouble with the law.

12. Plaintiff JULIAN C. LEE has a brother named

Robert Lee. Robert also goes by the name of Razul. Robert

is a fugitive and is wanted on robbery and assault charges

He has also been the subject of a television episode on

America’s Most Wanted. Robert is estranged from his

App. 5

family and they have no idea where Robert lives. They

have not heard from Robert nor seen him in many years.

13. Over the years, Robert has used many aliases. In

the past, he has used Plaintiff JULIAN C. LEE’s name

and social security number in several states and this was

well known to the FBI. For years, the FBI has routinely

checked with Plaintiff JULIAN C. LEE’s parents to see if

they have heard from Robert.

14. In July 1998, an FBI agent, Defendant JAKE

GREGORY, visited one of Plaintiff JULIAN C. LEE’s old

roommates, Grace Kessler. Defendant JAKE GREGORY

said his investigation had nothing to do with Plaintiff

JULIAN C. LEE. He said he just wanted to ask Plaintiff

JULIAN C. LEE some questions about his brother “Robert

aka Razul.”

15. A few months later, an FBI agent, Defendant

JAKE GREGORY, contacted Plaintiff JULIAN C. LEE’s

old girlfriend Jana Dubraveak. Again the agent said the

inquiry was not about Plaintiff JULIAN C. LEE. Defen-

dant JAKE GREGORY was inquiring about “Robert aka

Razul.”

16. In April, 2000, an FBI agent, Defendant JAKE

GREGORY, contacted one of Plaintiff JULIAN C. LEE’s

old roommates named J.B. and asked him to come into his

Carlsbad office to answer some questions. In the office,

Defendant JAKE GREGORY showed J.B. a picture of

Robert Lee. J.B. said he had never seen Robert Lee before.

17. On April 28, 2000, FBI agent Defendant JAKE

GREGORY came to Plaintiff JULIAN C. LEE’s home in

Encinitas. Plaintiff JULIAN C. LEE was at work. Defen-

dant JAKE GREGORY spoke with Plaintiff JULIAN C.

App. 6

LEE’s girlfriend’s brother Bryan Ingraham. Defendant

JAKE GREGORY told Mr. Ingraham that his interview

had nothing to do with Plaintiff JULIAN C. LEE. Defen-

dant JAKE GREGORY left a business card with a written

note asking Plaintiff JULIAN C. LEE to call Defendant

JAKE GREGORY on Tuesday. However, Plaintiff JULIAN

C. LEE’s girlfriend Sarah came home later that day and

called Plaintiff JULIAN C. LEE at work and told him

about Defendant JAKE GREGORY'S visit.

18. In response, Plaintiff JULIAN C. LEE immedi-

ately called Defendant JAKE GREGORY that same day.

Plaintiff JULIAN C. LEE explained that he had no idea

where his brother was and that he had not spoken to his

brother in many years. Plaintiff JULIAN C. LEE also

demanded that Defendant JAKE GREGORY stop follow-

ing him and harassing his friends, old roommates and old

girlfriend because he had no idea where his brother was

located and neither did his friends.

19. The following week, on Thursday May 4, 2000, a

San Diego County Sheriff’s deputy was in Plaintiff

JULIAN C. LEE’s neighborhood questioning a neighbor

about Plaintiff JULIAN C. LEE and his brother Robert.

Plaintiff JULIAN C. LEE’s neighbor assured the deputy

that Plaintiff JULIAN C. LEE had lived there for 2-3

years and was a very nice person.

20. Thirty minutes later, Plaintiff JULIAN C. LEE’s

girlfriend saw a sheriff's car parked in the street by

Plaintiff JULIAN C. LEE’s house. She went to speak with

the deputy in the car named Marco Garmo. Deputy Marco

Garmo informed her that he was working with the FBI on

the case involving Robert Lee and there was a warrant for

his arrest from Florida. Garmo in fact was acting in

App. 7

concert with, and at the direction of, defendant Jake

Gregory. Sarah explained that the FBI had been looking

for Plaintiff JULIAN C. LEE’s brother for years and they

know all about Robert and the fact that he is estranged

from the Lee family and Plaintiff JULIAN C. LEE in

particular.

21. Sarah immediately called Plaintiff JULIAN C.

LEE at work to explain. Plaintiff JULIAN C. LEE then

called deputy Marco Garmo on Garmo’s cellular telephone.

Plaintiff JULIAN C. LEE explained to deputy Marco

Garmo that he had no idea where his brother was and that

he had not spoken to him nor heard from him in years.

Plaintiff JULIAN C. LEE thought that cleared up the

situation.

22. Plaintiff JULIAN C. LEE came home from work

that same day, Thursday May 4, 2000, and had dinner

with Sarah. That evening he went out to buy some cat food

at Ralphs. As he drove to Ralphs, he noticed two sheriff’s

cars following him. Shortly before he pulled into Ralphs

parking lot, Plaintiff JULIAN C. LEE was surrounded by

several sheriff’s cars and ordered out of his car at gun-

point. Deputy Marco Garmo was one of the officers pre-

sent. The officers told Plaintiff JULIAN C. LEE that they

were arresting him on the warrant for his brother in

Florida. While acting as a result of a concerted agreement

with Defendant JAKE GREGORY, they placed him under

arrest and took him to the Encinitas Sheriff’s station.

23. When Plaintiff JULIAN C. LEE arrived in

handcuffs, Defendant JAKE GREGORY was at the station

waiting for Plaintiff JULIAN C. LEE. Defendant JAKE

GREGORY demanded that Plaintiff JULIAN C. LEE give

him information on his brother Robert. Defendant JAKE

App. 5

GREGORY said he would be able to clear up the whole

“Florida situation” if Plaintiff JULIAN C. LEE gave him

information about his brother Robert. Plaintiff JULIAN C

LEE was astonished that he was being held under a

warrant relating to charges against his brother Robert,

and told Defendant JAKE GREGORY that he had no idea

where his brother was and that he had aot heard from him

nor spoken to him in years. Defendant JAKE GREGORY

replied “Have a nice trip to Florida” and walked out of the

room

24. Plaintiff JULLAN C. LEE was transferred to the

Vista Jailhouse. Thereafter, he was moved to the down

town San Diego Jail

25. Plaintiff JULIAN C. LEE was held in custody

under a $35.000.00 bail. He was not able to make bail

until May 8. 2000. On May 8, 2000, extradition papers

were filed to begin Plaintiff JULIAN C. LEE’s extradition

to Dade County, Florida for the crime committed by his

brother in Florida. On May 9, 2000, he was formally

charged in San Diego under California Penal Code section

1551.1 for being a fugitive from justice regarding the crime

his brother Robert committed in Flonda. Thereafter.

Plaintiff JULLAN C. LEE, through his friends, was able to

hire an attorney who contacted the San Diego District

Attorney's office to inform them of the true facts regarding

Plaintiis JULIAN C. LEE to stop the extradition to Dade

County, Florida. Plaintiff JULIAN C. LEE was freed and

the extradition case was dismissed by the San Diego

District Attornev’s office

App. 9

Il.

FIRST CAUSE OF ACTION

Violation of Constitutional Rights

by Federa’ . ficer: Bivens Action

[Against Jake Gregory and DOES | through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 25 of this Complaint and incorporates the same

by reference as if there paragraphs were fully set forth

herein

26. This cause of action is based upon Bivens v. Six

Unknown Federal Narotic Agents 403 U.S. 388 (1971)

Defendant Jake Gregory deprived Plaintiff JULIAN C

LEE of the following rights under the United States

Constitution

1. Julian Lee’s First Amendment right to speak as

he felt appropriate to government agents without

threat of vindictive government reprisal! or re-

taliation

Julian Lee’s Fourth Amendment right to be free

of unreasonable searches and seizures and to be

free of arrests without probable cause

Julian Lee’s Fifth Amendment right to be free

from deprivation of liberty without due process of

law

Julian Lee’s Eighth Amendment right to be free

of cruel and unusual punishment

The arrest and detention was done in violation of due

process; it was effected upon a person Gregory knew to be

innocent as a way of inflicting punishment on Mr. Lee

which was cruel and unusual. The knowing infliction of

App. 10

pain upon a person known to be innocent is cruel and

unusual punishment and in violation of the due process

clause of the Fifth Amendment. Among other things, by

causing the arrest and continued detention of Julian Lee

defendants Gregory arrested him without probable cause,

in an unreasonable manner under circumstances that

would leave a reasonable person under the same circum-

stances to believe that no probable cause existed to arrest

Julian C. Lee. The arrest and continued detention was

caused by Gregory, to retaliate against Julian C. Lee for

what Mr. Lee has said to Gregory in enunciating his

complaints with Gregory’s action, which comments were

protected by the First Amendment. The arrest and deten-

tion was also to punish Mr. Lee for what defendant Jake

Gregory perceived as a lack of cooperation by Mr. Julian

Lee

27. Defendants Gregory deprived Plaintiff JULIAN

C. LEE of his rights alleged above under the United States

Constitution to be free from unlawful and unreasonable

search and seizures, to due process of law and to be free

from the infliction of cruel and unusual punishment by

implementing or executing a policy statement, ordinance,

regulation, decision, custom or usage that permitted its

employees and agents to arrest Plaintiff JULIAN C. LEE

under these circumstances without probable cause with

the intent to deprive plaintiff of the rights alleged herein.

Plaintiff JULIAN C. LEE’s right to be free from any

violence, or intimidation through the threat of violence,

committed against him because of his race, color, ancestry,

or national origin, was violated by defendant because

Plaintiff JULIAN C. LEE was battered, falsely accused,

falsely arrested, wrongfully incarcerated, falsely impris-

oned, wrongfully prosecuted, and held up to public shame

App. 11

and obloquy. His rights under the United States Constitu

tion were further violated, in particular, the right to be

free from being compelled to speak to a law enforcement

official, the right of privacy, the right to be free from

unlawful searches and seizures, the right to be free from

the imposition of punishment without due process of law,

the right to be free from cruel and unusual punishment

and the right to due process of law

28. The conduct alleged herein caused Plaintiff

JULIAN C. LEE to be deprived of his civil rights that are

protected under the United States Constitution which has

also legally, proximately, foreseeably and actually caused

Plaintiff JULIAN C. LEE to suffer emotional! distress, pain

and suffering, damage to reputation and further damages

according to proof at the time of trial

29. The conduct alleged herein also amounts to

oppression, fraud or malice within the meaning of Civil

Code Section 3294; justifying the award of exemplary

damages against defendant Gregory in an amount accord-

ing to proof at the time of trial in order to deter the defen-

dant from engaging in similar conduct and to make an

example by way of monetary punishment. Plaintiff LEE is

also entitled to attorney fees and costs of suit herein

IV.

SECOND CAUSE OF ACTION

California Civil Rights Violation - Unruh Act

{Against All Defendants and DOES 1 through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 29 of this Complaint and incorporates the same

App. 12

by reference as if these paragraphs were fully set forth

herein

30. All persons within the State of California have

the right to be free from any violence, or intimidation by

threat of violence, committed against them because of

their race, color, ancestry and/or national origin. This right

is guaranteed by the Unruh Civil Rights Act codified at

California Civil Code section 51, et seq

31. Julian C. Lee is an African American. Plaintiff

JULIAN C. LEE’s right to be free from any violence, or

intimidation through the threat of violence, committed

against him because of his race, color, ancestry, or national

origin, was violated by defendants because Plaintiff

JULIAN C. LEE was battered, falsely accused, falsely

arrested, wrongfully incarcerated, falsely imprisoned,

wrongfully prosecuted, held up to public shame and

obloquy. His rights under the United States Constitution

and California Constitution were further violated, in

particular, the right to be free from being compelled to

speak to a law enforcement official, the right of privacy,

the right to be free from unlawful searches and seizures,

the right to be free from the imposition of punishment

without due process of law, the right to be free from cruel

and unusual punishment and the right to due process of

law

32. Due to the violation of Plaintiff JULIAN C

LEE’s rights by all defendants, Plaintiff JULIAN C. LEE

suffered economic damages and non-economic damages,

including, but not limited to, emotional distress, pain and

suffering, fear and humiliation caused by the acts com-

plained of herein according to proof at the time of trial

App. 13

33. Plaintiff JULIAN C. LEE is also entitled to the

statutory civil penalties, exemplary damages and aftor-

neys’ fees and costs of suit incurred herein

V.

THIRD CAUSE OF ACTION

False Arrest/Iniprisonment

[Against All Defendants and DOES 1 through 10]

Plaintiff JULLAN C. LEE hereby realleges paragraphs

1 through 33 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

34. Defendants intentionally and uniawfully exer-

cised force or the express or implied thr at of force to

restrain, detain or confine Plaintiff JULIAN C. LEE.

35. The restraint, detention or confinement com-

pelled Plaintiff JULIAN C. LEE to stay or go somewhere

for some appreciable time.

36. Plaintiff JULIAN C. LEE was unlawfully ar-

rested and taken into custody

37. The Defendants authorized, encouraged, directed

or assisted an officer in either doing an unlawful act or

procuring without proper process, Plaintiff JULIAN C.

LEE’s arrest

38. The restraint, detention, confinement and arrest

caused Plaintiff JULIAN C. LEE to suffer injury, damage,

loss or harm according to proof at the time of trial

App. 14

39. The conduct of defendants also amounts to

oppression, fraud or malice within the meaning of civil

code section 3294 et seq. and punitive damages should be

assessed against each defendant for the purpose of pun-

ishment and for the sake of example.

Vi.

FOURTH CAUSE OF ACTION

Malicious Prosecution

[Against All Defendants and DOES 1 through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 39 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein.

40. By engaging in the acts alleged herein, the

Defendants initiated or were actively instrumental in

procuring the arrest and prosecution in a criminal action

41. The arrest proceeding and criminal action

against Plaintiff JULIAN C. LEE terminated in his favor.

42. The Defendants acted without probable cause in

initiating the arrest or procuring the arrest or prosecution

of Plaintiff JULIAN C. LEE and they acted with malice.

43. As a direct, proximate and foreseeable result,

Plaintiff JULIAN C. LEE suffered damage according to

proof at the time of trial.

44. The conduct of Defendants also amounts to

oppression, fraud or malice within the meaning of civil

code section 3294 et seq. and punitive damages should be

App. 15

assessed against each defendant for the purpose of pun-

ishment and for the sake of example

VIL.

FIFTH CAUSE OF ACTION

Abuse of Process

[Against All Defendants and DOES 1 through 10)

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 44 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

15. The Defendants abused the process of this court

by misusing the power of the court by acts done in the

name of the court and under its authority by means of use

of a legal process not proper in the conduct of a proceeding

for the purpose of perpetrating an injustice

i6. In particular, the Defendants used the legal

process in a wrongful manner, not proper in the regular

conduct of a proceeding to accomplish a purpose for which

it was not designed because |sic] used the Florida warrant

to manipulate the process in California and battered,

falsely accused, falsely arrested, wrongfully incarcerated

falsely imprisoned, wrongfully prosecuted, held up to

public shame and obloquy, and his rights under the United

States Constitution were violated, in particular the right

to be free from unlawful searches and seizures under the

Fourth Amendment, right to be free from the imposition of

punishment without due process of law and the right to

due process of law under the Fifth Amendment. They also

used the process to wrongfully commence extradition

against Plaintiff Lee and wrongfully charge him with a

App. 16

felony for being a fugitive from the law and punish him for

what Defendant JAKE GREGORY perceived to be a lack of

cooperation.

47. The conduct alleged herein caused Plaintiff

JULIAN C. LEE to be deprived of his civil rights that are

protected under the United States Constitution which has

also legally, proximately, foreseeably and actually caused

Plaintiff LEE to suffer emotional distress, pain and

suffering, damage to reputation and further demages

according to proof at the time of trial

48. The conduct alleged herein also amounts to

oppression, fraud or malice within the meaning of Civil

Code Section 3294; justifying the award of exemplary

damages against all Defendants in an amount according to

proof at the time of trial in order to deter the Defendants

from engaging in similar conduct and to make an example

by way of monetary punishment

VIIL.

SIXTH CAUSE OF ACTION

Rattery

[Against All Defendants and DOES 1 through 10]

Plaintiff JULLAN C. LEE hereby realleges paragraphs

1 through 48 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

49. The Defendants, and each of them, acted with an

intent to cause harmful or offensive contact with the

person of Plaintiff JULIAN C. LEE and the intended

App. 17

harmful or offensive contact did in fact occur. The harmful

or offensive contact was not privileged nor consented to.

50. As a result of the Defendants’ intent to cause

harmful or offensive contact with the person of Plaintiff

Lee and the fact that the intended harmful or offensive

contact did in fact occur, Plaintiff JULIAN C. LEE suf-

fered damages according to proof at the time of trial. Said

damages are currently in excess of the jurisdictional

minimum of this court.

51. The conduct of Defendants also amounts to

oppression, fraud or malice within the meaning of Civil

Code section 3294 et seq. and punitive damages should be

assessed against each defendant for the purpose of pun-

ishment and for the sake of example.

[X.

SEVENTH CAUSE OF ACTION

Intentional Infliction of Emotional Distress

|Against All Defendants and DOES 1 through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 51 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

52. By engaging in the acts alleged herein, the

Defendants engaged in outrageous conduct that was

intended to cause Plaintiff JULIAN C. LEE to suffer

emotional distress or engaged in the conduct with a

reckless disregard of the probability of causing Plaintiff

JULIAN C. LEE to suffer emotional distress

App. 18

53. As a direct, proximate and foreseeable result,

Plaintiff JULIAN C. LEE suffered sever emotional! distress

and the outrageous conduct was the cause of the emotional

distress suffered by Plaintiff JULIAN C. LEE

54. The conduct of Defendants also amounts to

oppression, fraud or malice within the meaning of Civil

Code section 3294 et seq. and punitive damages should be

assessed against each defendant for the purpose of pun-

ishment and for the sake of example

X.

EIGHTH CAUSE OF ACTION

Negligence

[Against All Defendants and DOES | through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 54 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

55. Defendants had a duty to Plaintiff JULIAN C

LEE to act with ordinary care and prudence so as not to

cause harm or injury to another

56. By engaging in the acts alleged herein, the

Defendants failed to act with ordinary care and breached

their duty of care owed to Plaintiff JULIAN C. LEE

57. As a direct, proximate and foreseeable result of

the Defendants breach of their duty of care, Plaintiff

JULIAN C. LEE suffered damages in an amount according

to proof at the time of trial

XI.

NINTH CAUSE OF ACTION

Negligent Infliction of Emotional Distress

[Against All Defendants and DOES 1 through 10]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 57 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

58. By engaging in the acts alleged herein, the

Defendants engaged in negligent conduct and a willful

violation of the laws of the State of California causing

plaintiff to suffer serious emotional distress

59. As a direct, proximate and foreseeable result

Plaintiff JULIAN C. LEE suffered serious emotional!

distress and the outrageous conduct was the cause of the

emotional) distress suffered by Plaintiff JULLAN C. LEE

X11.

TENTH CAUSE OF ACTION

Negligent Supervision and Training

[Against The United States]

Plaintiff JULLAN C. LEE hereby realleges paragraphs

1 through 59 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

60. The Federal Bureau of Investigation, an agency

of defendant United States by employing persons in the

capacity of peace officers, has a duty to ensure proper

training so that the officers, in performing their duties, do

App. 2(

not violate the federally protected constitutional rights of

citizens

61. The Federal Bureau of Investigation is specifi-

cally deficient in training officers with regard to their

responsibilities under the Fourth Amendment to have

probable cause before executing an arrest warrant, to

truthfully disclose all material facts in seeking an arrest

warrant and to avoid false or misleading statements when

applying for arrest warrants, and to act with due care to

insure that no one who is innocent of wrongdoing is falsely

arrested

62. These training deficiencies resulted from the

Federal Bureau of Investigation’s deliberate indifference

to rights guaranteed by the Fourth Amendment rights

63. The deliberate indifferent training and lack

thereof was the cause and moving force behind the viola-

tion of Plaintiff JULIAN C. LEE’s Fourth Amendment

nights

64. The deliberately indifferent training and lack

thereof by the Federal Bureau of Investigation caused

Plaintiff JULIAN C. LEE to suffer damages according to

proof at the time of trial. As such, Plaintiff JULIAN C

LEE is entitled to attorney fees and punitive damages

according to proof

App. 21

XII,

ELEVENTH CAUSE OF ACTION

Negligent Hiring and Retention

[Against The United States]

Plaintiff JULIAN C. LEE hereby realleges paragraphs

1 through 64 of his Complaint and incorporates the same

by reference as if these paragraphs were fully set forth

herein

65. The Federal Bureau of Investigation, an agency

of defendant United States by employing persons in the

capacity of peace officers, has a duty to ensure that its

agents are adequately qualified and continue to receive

proper and adequate training after they are hired.

66. The Federal Bureau of Investigation was specifi-

cally deficient in making sure that Defendant JAKE

GREGORY was adequately qualified and continued to

receive adequate training with regard to his responsibili-

ties under the Fourth Amendment to have probable cause

before obtaining an arrest warrant, to truthfully disclose

all material facts in seeking an arrest warrant and to

avoid false or misleading statements when applying for

arrest warrants, and to act with due care to insure that

affidavits submitted are truthful and accurate.

67. These deficiencies in qualifications and retention

of Defendant JAKE GREGORY resulted from the Federal

Bureau of Investigation’s deliberate indifference to rights

guaranteed by the Fourth Amendment rights.

68. The deliberate indifference was the cause and

moving force behind the violation of Plaintiff JULIAN C

LEE’s Fourth Amendment rights

App. 2:

69. The deliberate indifference by the Federal

Bureau of Investigation caused Plaintiff JULIAN C. LEE

to suffer damages according to proof at the time of trial. As

such, Plaintiff JULIAN C. LEE is entitled to attorney fees

and punitive damages according to proof

WHEREFORE, Plaintiff JULIAN C. LEE prays as

follows

FIRST CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

4. Costs of suit and attorney fees incurred herein;

and

Exemplary damages

SECOND CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just; and

4. Costs of suit and attorney fees incurred herein;

and

Exemplary damages

App. 23

THIRD CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

1. Costs of suit and attorney fees incurred herein,

and

Exemplary damages

FOURTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just,

4. Costs of suit and attorney fees incurred herein;

and

Exemplary damages

FIFTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

Costs of suit and attorney fees incurred herein;

Exemplary damages

App. 24

SIXTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

1. Costs of suit and attorney fees incurred herein;

and

5. Exemplary damages.

SEVENTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just,

4. Costs of suit and attorney fees incurred herein;

and

5. Exemplary damages.

EIGHTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deem:

just; and

1. Costs of suit and attorney fees incurred herein.

App. 25

NINTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

4. Costs of suit and attorney fees incurred herein;

and

TENTH CAUSE OF ACTION

1. General damages, including emotional distress

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

4. Costs of suit and attorney fees incurred herein

and

Exemplary damages

ELEVENTH CAUSE OF ACTION

1. General damages, including emotional distress,

according to proof at the time of trial;

2. Special damages according to proof at the time of

trial;

3. Any further declaratory relief as this Court deems

just;

4. Costs of suit incurred herein: and

5. Exemplary damages

App. 26

DATED: July 2, 2001

Law Offices of Eugene G. Iredale

By: /s/ Eugene G.lredale

Eugene G. Iredale, Esq.

DATED: July 2, 2001

Law Offices of Douglas S. Gilliland

By: /s/ Douglas S. Gilliland —s—

Douglas S. Gilliland, Esq

App. 27

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

JULIAN C. LEE, an

individual,

Plaintiff,

CASE NO.

vs 01CV0739-K(RBB)

FEDERAL BUREAU OF DECLARATION OF

INVESTIGATION, a JULIAN

federal agency, JAKE CHRISTOPHER LEE

GREGORY, an

individual, UNITED September 24, 200!

STATES, and DOES 1-100, ? 14:00 a.m.

inclusive, |

Defendants.

I, JULIAN CHRISTOPHER LEE, being duly sworn,

hereby state as follows:

1. I am the plaintiff in this case.

2. Ihave nocriminal record of any kind. I have never

been arrested nor charged with any crime, save for the

arrest in this case.

3. After high school, I joined the United Stated

Marine Corps. I became a weapons instructor in Quantico,

Virginia. At Quantico, I taught classes in weapons and

static displays to FBI Agents, DEA Agents and officers

from every branch of the armed services.

4. When Desert Storm began, I was transferred to

Camp Pendleton where I was a section leader in a weap-

ons company. My unit was later transferred to the Gulf

App. 28

where it was involved in Desert Storm’s Desert Shield

strategy.

5. After my military service, I returned to California

to resume civilian life. | worked as a foreman with the San

Diego Gas and Electric Company and later for Continental

Central Credit. When my father had a stroke, I went into

commercial fishing in Alaska and worked so I could help

pay my father’s rnedical bills and help buy my parents a

house that would accommodate my father’s wheelchair.

6. After helping to buy my parents a house, I moved

back to California. In July of 1998, I resumed work in the

collection industry, working for Household Automotive

Finance. I have worked for Household Automotive Finance

continuously since July of 1998.

7. I have three brothers and one sister. One of my

brothers is named Robert Q. Lee. I have not seen him for a

decade. My brother is a fugitive from charges in New

Jersey. | became aware several years ago that my brother

Robert Q. Lee was using my name and social security

number, as well as the names and social security numbers

of my brother Kenneth Lee, my other brother Wilmore

Lee, as well as that of my cousin Robert McMillan. |

became aware of this because these facts had been re-

ported to one of my brothers and one of my cousins by the

FBI who informed them that Robert was in fact using our

names and social security numbers during the time he was

a fugitive. I became aware of this well before I was ar-

rested in May 2000.

8. Ihave never been to Miami, Florida.

9. At the time of my arrest, in May of 2000, I stood 6'

3" tall and weighed at least 284 pounds. My driver’s

App. 29

license which was issued in March of 2000 reflected my

proper height and weight. It was quite apparent to me and

to anyone who had seen me that | weighed at least 284

pounds. In fact, my weight at the time | saw and spoke

with FBI agent Jake Gregory on May 2000, was over 290

pounds

10. I became aware in the year 2000 that an FBI

agent was asking friends and relatives of mine questions

about me. I obtained the telephone number of Mr. Jake

Gregory from Brian Ingraham, my girlfriend’s brother who

had spoken to Mr. Gregory at my home while I was not

there. Brian Ingraham related to me that Gregory had

requested that I call him.

11. As a result of this request, | telephoned FBI

agent Jake Gregory. I identified myself as Julian Christo-

pher Lee. After I identified myself, I asked Jake Gregory if

there was any law that required me to speak with him. He

replied that there was not. | said to him that I wanted him

to stop harassing my friends and to stop harassing me. |

told him that | had not seen my brother for many years.

Because i was angry, I cursed at him. | then hung up the

phone

12. Approximately a week after my telephone call

with Mr. Jake Gregory, | was placed under arrest by the

San Diego County Sheriffs. A Sheriff whose name I believe

to be Marco Garmo told me that he was working with the

FBI in this matter. I told the Sheriffs that I was not the

person that they were seeking who was described in the

warrant

13. During the transportation to the Sheriff's sta-

tion, | saw what I believed to be a copy of the warrant

from Florida. In hand writing there were annotations

App. 30

which were further descriptions of the person named in

the warrant. The hand written descriptions that I saw on

the warrant included notations that the person had a

shaved head, light complexion, weighed approximately 180

pounds, was 6 feet tall and had hazel eyes. These physical

attributes all applied to my brother and were clearly not

applicable to me. I have never had a shaved head. I wore

shoulder length dread locks at the time of my arrest and

have had them for several years

14. FBI Agent Gregory spoke to me in the cell at the

Sheriff's station within approximately five minutes of my

arrival there. When he first came into the cell to speak

with me he said words to the effect of “Are you ready to

talk to me now? The last time I talked to you, you had an

attitude”. He then said “Do you want to go home? Do you

want to get out of here tonight? Then tell me where your

brother ‘s.” I told him “Like I told you on the phone, I don’t

know where he is.” FBI agent Gregory said “If you want to

get out of this Florida situation, you better talk to me now

about your brother, otherwise you will be staying here in

jail.” I told him again that I did not know where my

brother was and had not seen him for many years.

15. 1 told Gregory that my brother had been using

my name and social security number as well as that of my

other brothers, and that our family had learned this

information from the FBI itself several years before. | told

him that I had never been in Florida, and that | was

clearly not the person who was named in the warrant

because | was several inches taller, about 100 pounds

heavier, had a different hair style, different color eyes and

a different complexion. I told Gregory that he could call

my job and that they could verify that I had never been to

Florida and had been working in San Diego since June

App. 31

1998, and therefore could not have committed any crime in

Florida in December of 1998.

16. I asked Gregory to please check because he was

arresting the wrong person. Gregory simply smiled at me

and asked me again if I could help him with information

about my brother. When I reiterated for the third time

that I had no information about my brother Robert, he

smiled at me, threw up his hand and said to me “have a

nice flight to Florida”. He then left.

17. It was clear to me that Agent Gregory was upset

and angry because I had previously cursed at him and

hung up the phone. It was also clear to me that he was

telling me that if I gave him the information he felt I had

concerning my brother, he would release me immediately.

He did not tell me anything about his willingness to

contact Florida authorities to obtain assistance for me in

“my” Florida case. Rather, he made it quite clear that he

would arrange for me to be released immediately if I gave

him the information he was seeking.

18. When I told him that I was not the person named

in the warrant from Florida and had never been in Flor-

ida, he did not object, protest or state that I was. Rather

he smiled and pointed out that my name was Julian

Christopher Lee and the Florida warrant was for a person

named Julian Christopher Lee and that if | wanted to

clear the matter up I had better give him the information

he wanted. Throughout the time I spoke with Gregory, he

made it clear to me that if | provided the information he

wanted I would be released

App. 32

DATED: September 10, 2001

/s/ Julian C. Lee

JULIAN CHRISTOPHER LEE

App. 33

ISEAL]

Gloucester County Prosecutor

P.O. Box 623

Woodbury, New Jersey 08088

(609) 384-5500

FAX (609) 384-8824

(Names Omitted In Printing!

February 6, 1997

Jeremy Frey, U.S. Attorney

District of New Jersey

U.S. Court House

P.O. Box 2098

Camden, New Jersey 08101

Re: State of New Jersey v. Robert Q. Lee

Gloucester County Indictment 93-02-00103

DOB 12/21/65, FBI #50360EA4

Dear Mr. Frey

This office requests your assistance in locating the

above subject. We also request the subject be charged with

an unlawful flight to avoid prosecution warrant

The current information received is that subject has

changed his name to Christopher Lee, DOB 3/7/67 and he

may be residing with his brother, Alex Fukay, 5675 Old

Pascagoula Road, Mobile, Alabama, Phone 334-653-8851

Mr. Lee is wanted by this office for armed robbery and

aggravated assault

Enclosed you will find our arrest warrant for Mr. Lee

and if apprehended our office will extradite

Thank you for your cooperation in this matter

App. 34

Very truly yours,

ANDREW N. YURICK

COUNTY PROSECUTOR

By /s/N.R. Armstrong _

N Robert Armstrong

Chief of County Investigation

Enclosure

Faxed 2/6/97

CC: FBI Special Agent Paul Murray/Cherry Hill

John C. Porter, Sgt /CCPO Fugitive Unit

App. 35

United States District Court

District of New Jersey

UNITED STATES OF

AMERICA - WARRANT FOR

v. ARREST

ROBERT Q. LEE , Case Number: 97-2005

a/k/a Christopher Lee

To: The United States Marshal Special Agents of the

Federal Bureau of Investigation, and any Authorized

United States Officer

YOU ARE HEREBY COMMANDED to arrest

ROBERT Q. LEE, a/k/a Christopher Lee and bring him or

her forthwith to the nearest magistrate judge to answer

a(n)

Indictment Information _X Complaint

___OrderofCourt _ Violation Notice Probation

Violation Petition

charging him or her with (brief description of offense)

Unlawful flight to avoid prosecution (UFAP).

in violation of Title 18, United States Code, Section(s)

1073.

Honorable Joel B. Rosen United States Magistrate Judge

Name of Issuing Officer Title of Issuing Officer

/s/ Joel B. Rosen | February 7, 1997 at Camden, NJ

Signature of Issuing Officer Date and Location

Bail fixedat$ | by

Name of Judicial Officer

App 36

RETURN

This warrant was received and executed with the arrest

of the above-named defendant at

NAME AND TITLe OF SIGNATURE OF

ARRESTING OFFICER ARRESTING OFFICER

DATE RECEIVED

DATE OF ARREST

App. 37

United States District Court

District of New Jersey

UNITED STATESOF : .

AMERICA , CRIMINAL

COMPLAINT

Magistrate No. 97-2005

Filed Feb. 7. 1997)

Vv.

ROBERT Q. LEE

a/k/a Christopher Lee

I, the undersigned complainant being duly sworn

state the following is true and correct to the best of my

knowledge and belief. In or about April, 1994 in Gloucester

County, in the District of New Jersey and elsewhere

defendant did

knowingly and willfully travel in interstate commerce

from the State of New Jersey to the Commonwealth of

Alabama wit!; the intent to avoid prosecution for the

crimes of Robbery and Aggravated Assault with a Deadly

Weapon, which are felon|y| offenses, contrary to New

Jersey Statutes Sections 2C:15-1 and 2C:12-1bi2

In violation of Title 18. United States Code. Section

1073

| further state that | am a Special Agent with the

Federal Bureau of Investigation and that this complaint is

based on the following facts

SEE ATTACHMENT

William P. Grace

Signature of Complaint

Williams P. Grace

Special Agent, F.B.I

App. 38

Sworn to before me and subscribed in my presence,

February 7, 1997 at Camden, New Jersey

Date City and State

Honorable Joel B. Rosen

United States Magistrate Judge /s/ Joel B Rosen

Name & Title of Judicial Signature of Judicial

Officer Officer

Attachment

I, William P. Grace, being duly sworn, deposes and

,

t. On or about February 25, 1993, an indictment was

handed down by a grand jury sitting in Gloucester County,

New Jersey, charging the defendant ROBERT Q. LEE

with Robbery and Aggravated Assault with a Deadly

Weapon, in violation of N.J.S.A. sections 2C:15-1 and

2C:12-1Lbi2)

2. On or about April 14, 1994, an arrest warrant was

issued by Superior Court Judge Donald A. Smith, Jr., for

the arrest of defendant ROBERT Q. LEE_for violation of

N.J.S.A. sections 2C:15-1 and 2C:12-1b(2). Since that time,

the local authorities have been unable to locate the defen-

dant ROBERT Q. LEE in the State of New Jersey

3. On or about February 6, 1997, our office received

information from the Gloucester County Prosecutor's

Office that the defendant ROBERT Q. LEE has changed

his name to Christopher Lee, and that he may be residing

in Mobile, Alabama with family members

App 39

4. The Gloucester County Prosecutor's Office

indicated that if the defendant is apprehended, he w

extradited to the State of New Jersey to face charges

4

No. 05-344

IN THE

Supreme Court of the United States

JAKE GREGORY,

Petitioner,

Vv.

JULIAN C. LEE,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY FOR PETITIONER

JEFFREY A. LAMKEN

Counsel of Record

JACOB A. SOMMER

HEATHER M. MCCANN

BAKER Botts L.L.P.

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 639-7700

Counsel for Petitioner

Wu_SON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D C. 20001

TABLE OF CONTENTS

The Ninth Circuit's Decision Conflicts With

This Court’s And The First Circuit's

a

II. This Court Has Jurisdiction Over The Legal

Issue Presented By The Petition

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)

Behrens v. Pelletier, 516 U.S. 299 (1996)

Brady v. Dill, 187 F.3d 104 (ist Cir. 1999)........... 2, 3, 4, !

Davis v. Scherer, 468 U.S. 183 (1984)

Fletcher v. Tom Thumb, Inc., No. Civ. 99-

1680, 2001 WL 893913 (D. Minn. Aug. 7,

2001)

Floyd v. Farrell, 765 F.2d 1 (ist Cir. 1985)..........2, 3, 4, 10

Gay v. Wall, 761 F.2d 175 (4th Cir. 1985) 5

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Hebein v. Young, 37 F. Supp. 2d 1035 (N.D.

Ill. 1998)

Hunter v. Br ,<nt, 502 U.S. 224 (1991)

Johnson v. Jones, 515 U.S. 304 (1995)

Johnson v. Miller, 680 F.2d 39 (7th Cir. 1982)

Malley v. Briggs, 475 U.S. 335 (1986)

Mitchell v. Forsyth, 472 U.S. 511 (1985)

Moore v. Hartman, 388 F.3d 871 (D.C. Vir.

EEE I SAE LE LES Ae Pe REE '

Ornelas v. United States, 517 U.S. 690 (1996)

Sanders v. City of Flatwoods, No. 90-5540,

1991 WL 100588 (6th Cir. June 1', 1991)

Saucier v. Katz, 533 U.S. 194 (2001)

Tower v. Brown, 326 F.3d 290 (ist. Cir. 2003)...........

Whren v. United States, 517 U.S. 806 (1996)

iv

TABLE OF AUTHORITIES—Continued

STATUTE AND RULE

28 U.S.C. § 1291

Fed. R. Civ. P. 56

REPLY FOR PETITIONER

Respondent does not dispute that the Ninth Circuit denied

FBI Special Agent Jake Gregory qualified immunity based on

allegations about Gregory's state of mind. Instead, respon

dent defends that reasoning: “[{Tlhe inquiry into whether an

officer acted reasonably,” respondent states, “requires a de

termination of what was in the official's mind; * * * what did

[he] believe?” Br. in Opp. 22 (emphasis added); see ibid. (court

“must make an inquiry into what was in the officer’s mind”)

Like the courts below, respondent eschews resolving probable

cause based solely on the objective evidence before the

officer—what he saw, read, and heard. Like the courts below,

respondent declines to address, for qualified immunity pur

poses, whether “a reasonable officer” with precisely the “infor

mation possessed” by Agent Gregory “could have believed”

there was cause for respondent’s arrest. Anderson v.

Creighton, 483 U.S. 635, 641 (1987) (emphasis added)

To respondent and the Ninth Circuit alike, Fourth Amend

ment reasonableness and qualified immunity instead depend

on a jury's assessment of the “beliefs and inferences in | Agent

Gregory]'s mind.” Br. in Opp. 22. Thus, it is of no moment

that, as respondent concedes, the Ninth Circuit found no “dis-

pute about the evidence before Agent Gregory—i.e., what

[A]gent Gregory saw and heard.” Pet. 7; Br. in Opp. 18 (“this

is true”). It matters not that that evidence included a facially

valid Florida warrant issued in respondent's name, with re-

spondent’s Social Security number, date of birth, gender, race,

and approximate height. Nor does it matter that the warrant

omitted the scars and identifying marks included in every de-

scription of respondent’s brother. Instead, qualified immunity

is unavailable because a juror could find that Agent Gregory

subjectively concluded from the evidence—and thus “knew”—

that respondent's brother, not respondent, had committed the

Florida crimes. Because “[k]nowingly arresting the wrong

person” is “self-evidently” unlawful, the Ninth Circuit de-

clared, there must be a trial to “determine whether Gregory

knew or did not know he was causing the arrest of the wrong

9

man.” Pet. App. 10a. And the dispositive issue for the jury is

whether Gregory in fact “mistakenly|| believed” that respon-

dent was the person sought by Florida authorities, or whether

he believed respondent was innocent but “procured [respon

dent’s} arrest” under the warrant nonetheless to “pressur(e]

[respondent] to provide information.” Pet. App. 22a-23a.

That approach conflicts with this Court’s Fourth Amend

ment and qualified immunity decisions, including Harlow v.

Fitzgerald, 457 U.S. 800 (1982), which “reject the inquiry into

state of mind in favor of a wholly objective standard.” Davis v.

Scherer, 468 U.S. 183, 191 (1984) (emphasis added); see Whren

v. United States, 517 U.S. 806, 813 (1996) (officer’s “state of

mind” irrelevant if “the circumstances, viewed objectively,”

justify the action). It conflicts with the First Circuit’s deci

sions in Floyd v. Farrell, 765 F.2d 1 (1985), and Brady v. Dill,

187 F.3d 104 (1999), which make clear that the “objective rea-

sonableness” standard looks to the facts before the officer, not

allegations about the thoughts the officer had in his mind. It

exacerbates disarray on this issue in the federal courts. And it

has a profound impact on law enforcement, making qualified

immunity nearly impossible to resolve vefore trial in a growing

category of cases. See Pet. 25-27; Br. State Amici 12.

Respondent’s brief in opposition offers only a half-hearted

effort to address the circuit conflict (Br. in Opp. 25-26) and the

issue’s importance (id. at 26). Instead, respondent devotes

much of his argument (id. at 15-20) to the unfounded claim

that this Court lacks jurisdiction under Johnson v. Jones, 515

U.S. 304 (1995). We address those arguments in turn.

I. The Ninth Circuit’s Decision Conflicts With This

Court’s And The First Circuit's Precedents

A. Respondent does not dispute that, under the “objec-

tive” Feurth Amendment and qualified immunity standards

adopted by this Court, the officer's motives are irrelevant.

Reasonableness depends on the “facts known” and “informa-

tion possessed” by the officer. Br. in Opp. 21-22. For Fourth

Amendment purposes, the question is “whether the{ |] historical

facts, viewed from the standpoint of an objectively reasonable

3

police officer, amount to * * * probable cause.” Ornelas v

United States, 517 U.S. 690, 696 (1996). For qualified immu-

nity, the issue is whether “on an objective basis, it is obvious

that no reasonably competent officer would have concluded”

that probable cause existed; if “officers of reasonable compe

tence could disagree on this issue, immunity [must] be

recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Seizing on the need to determine the “facts and circum-

stances within [the officer's} knowledge,” Br. in Opp. 20, 21;

see id. at 25, 26, respondent urges that courts may “inquir(e|

into what was in the officer’s mind,” the “inferences” he alle-

gedly drew, and thus what the officer “believe{d).” /d. at 22,

23. But that conflates knowledge with subjective belief. In the

Fourth Amendment and qualified immunity contexts, an offi-

cer’s “knowledge” consists of the facts the officer observed

(and which any officer in his shoes would also have observed),

ie., the “information possessed” by the officer and “the cir-

cumstances [he] confronted.” Anderson, 483 U.S. at 640, 641.

The off cer’s subjective assessments of those facts and his con-

clusions are precisely the sort of “subjective beliefs” this Court

has long deemed “irrelevant.” /d. at 641; Pet. 14-18.

B. Respondent's and the Ninth Circuit’s conflation of

“knowledge” with inference and subjective belief squarely con

flicts with the First Circuit’s decisions in Floyd and Brady. in

Floyd, the plaintiff (like respondent here) alleged that the

arresting officer had inferred and thus “knew” he was inno-

cent, but arrested him nonetheless. Pet. 19-20. Respondent

nowhere disputes that the First Circuit explicitly rejected

reliance on the officer’s “own evaluation of the facts before

him”—including the claim that he “believe(d| that” the plain

tiff “did not know the car was stolen.” 765 F.2d at 6. Nor does

respondent deny that the Ninth Circuit reached the opposite

result here, holding that Gregory's alleged belief in respon-

dent’s innocence was not only relevant but dispositive.

Nonetheless, respondent urges that Floyd is limited to the

issue of “motive,” and he quotes it as holding that an “objec-

tive analysis of the reasonableness of conduct” requires the

i

court to consider “the facts actually known to the officer and

not consider the officer's motives ** * .” Br. in Opp. 26 (some

emphasis added). But that “quotation” omits the critical

language. In fact, Floyd states that courts must look to “the

facts actually known to the officer and not consider the indi

vidual officer's subjective assessments of those facts.” 765

F.2d at 6 (emphasis added). The First Circuit thus held that

courts may not do precisely what the Ninth Circuit did here—

.e., determine reasonableness by examining the individual

officer’s subjective “evaluation of the facts before him,” rather

than examining the objective facts themselves. /d. at 6.

Nor does respondent reconcile the Ninth Circuit s decision

with Brady, supra. in Brady, as here, the plaintiff was ar

rested under a werrant issued in his name because his brother

had appropriated his identity. See Pet. 21. The plaintiff in

Brady, like respondent here, claimed that the officers detained

him even though they had concluded (and thus “knew”) that he

was innocent. /bid. But the First Circuit in Brady, unlike the

Ninth Cireuit here, held that allegation to be irrelevant

Assuming the officers “came to believe, with some degree of

subjective certainty, that the man they had arrested, though

named in the warrant, was innocent of the underlying charge,”

the court declared, that “is not knowledge, but subjective

belief.” 187 F.3d at 113. Citing this Court's decision in Whren,

supra, the First Circuit held that allegations about that “kind

of subjective belief” are irrelevant. /bid. Thus, under Brady,

courts evaluating knowledge in the First Circuit are limited to

the objectively observable information before the officer—and

may not consider, as the Ninth Circuit did here, what the par

ticular officer allegediy inferred from his observations. See

also Tuwer v. Brown, 326 F 3d 290, 296 (ist Cir. 2008) (we may

“not consider the individual officer's subjective assessment”).

Respondent asserts that Brady is “inapposite” because that

decision states, in a footnote, that the result might be different

where the plaintiff is not the person actually “named in [the]

facially valid warrant.” Br. in Opp. 26 (quoting 187 F.3d at 115

n.10). But that does not distinguish Brady from this case. No

5

less than the plaintiff in Brady, respondent was the person

named in the warrant. Both were identified by “name, date of

birth, and Social Security number.” 187 F.3d at 106; Pet. App

ja. It just turns out that in both cases, because of filial identi

ty theft, the warrants had been issued for the wrong brother

Respondent also ignores the rampant confusion throughout

the federal courts. See Pet. 23-25. Respondent thus does not

deny that the courts of appeals, see, ¢.g., Gay v. Wall, 761 F.2d

175 (4th Cir. 1985); Sanders v. City of Flatwoods, No. 90-5540,

1991 WL, 100588, at *2 (6th Cir. June 11, 1991), and the district

courts are in disarray over whether objective reasonableness

“take[s| into account the subjective view of the defendant,”

e.g., Hebein v. Young, 37 F. Supp. 2d 1085, 1043 (N.D. IDL.

1998), or precludes “speculation” about his “thoughts” and

“subjective state of mind,” ¢g., Fletcher v. Tom Thumb, Inc.,

No. Civ. 99-1680, 2001 WL 893913 (D. Minn. Aug. 7, 2001)

C. The issue, moreover, is important. As the petition (at

25-27) and the thirteen State Amici (at 12-13) explain, the

Ninth Circuit's decision effectively prevents qualified immuni

ty ft wm being resolved before trial. Proof at the arrest stage

(probable cause) is rarely air tight, and an erroneously arrest

ed individual will almost always be able to point to some dis

crepancy suggesting that the officer was arresting the

“wrong” person. Br. State Amici '2; Brady, 187 F.3c at 113

(“descriptive innaccuracies” are “commonplace”). Under the

Ninth Circuit's approach, that will always give rise to a triable

issue of fact on whether the officer “knew”—z¢., subjectively

inferred—that he was arresting an innocent person. /hid. In

this case, for example, respondent was arrested under a

warrant issued in his name, with his Social Security number,

birth date, and appro«imate height.’ Yet the Ninth Circuit re

jected qualified immunity by finding a “dispute” over whether

Contrary to respondent's assertion, J.B. Kleiman’s description of re-

spondent (as “over six feet tall and weigh/ing| more than 200 pounds”)

Br. in Opp. 6, 23, did “match” the warrant, which described the suspect

as 6 1” tall and weighing approximately 200 pounds. C.A. E.R. 83

6

Gregory “knew” (based largely on a weight discrepancy) that

the warrant should have been issued for respondent's bro-

ther—even though the warrant omitted the scars and marks

that characterized respo dent's brother. See Pet. 4.

This Court repeatedly has warned against any approach

that “routinely places the question of immunity in the hands of

a jury.” Hunter v. Bryant, 502 U.S. 224, 227-228 (1991); see

Saucier v. Katz, 533 U.S. 194, 200-201 (2001) (“[Wle have re

peavedly stressed the importance of resolving immunity ques-

tions at the earliest possible stage in litigation.”). If arresting

officers confront the “peril” of litigation and trial any time

there is a “discrepancy” in the warrant description, “many a

criminal will slip away.” Johnson v. Miller, 680 F.2d 39, 41

(7th Cir. 1982). Worse, if evidence that the officer subjectively

believed the arrestee was “innocent” is a sufficient basis for

burdensome litigation, officers may decline to pursue alterna-

tive suspects after arrest for fear that those efforts will

become evidence they “knew” the detainee was innocent. It

was precisely those sorts of consequences that prompted this

Court, in Harlow, to reject inquiries into the officer's

subjective thoughts and replace them with a wholly objective

standard that looks to the information and circumstances

before the officer. 457 U.S. at 816-817.

Officers executing facially valid warrants face an ever

increasing risk of suit for false arrest—even when, as here,

they arrest the very person named in the warrant. Pet. 28.

Indeed, the federal reporters are replete wit) decisions

addressing mistaken arrests resulting from identity theft, and

identity theft is on the rise. Confronted by the threat of suit

for virtually every arrest, officers may hesitate to execute

facially valid warrants—from other jurisdictions or their

own—forestalling the sort of decisive action upon which

effective law enforcement depends. Pet. 29 & n. 6.

Il. This Court Has Jurisdiction Over The Legal Issue Pre-

sented By The Petition

Respondent’s claim that this Court lacks jurisdiction under

Johnson v. Jones, 515 U.S. 304 (1995), is baseless. As Johnson

7

explains, orders denying qualified immunity are “appealable

‘final decisions’” within the meaning of 28 U.S.C. § 1291—so

long as “the issue appealed concern|s], not which facts the par-

ties might be able to prove, but, rather, whether or not certain

given facts showed a violation of ‘clearly established’ law.” 515

U.S. at 311 (citing Mitchell v. Forsyth, 472 U.S. 511, 530

(1985)). Johnson clarified that officials cannot challenge deci-

sions regarding “which facts a party may, or may not, be able

to prove at trial.” 515 U.S. at 313; id. at 319-320 (whether “the

pretrial record sets forth a ‘genuine’ issue of fact”). But

“Johnson reaffirmed that summary-judgment determinations

are appealable when they resolve a dispute concerning an

‘abstract issule] of law’ relating to qualified immunity,” such

as whether “the conduct which the District Court deemed suf-

ficiently supported * * * met the Harlow standard of ‘objective

legal reasonableness.’” Behrens v. Pelletier, 516 U.S. 299, 313

(1996) (emphasis added).

Respondent does not deny that the petition presents pre-

cisely the sort of “‘abstract issule] of jaw’ relating to qualified

immunity” that can be raised notwithstanding Johnson. Beh-

rens, 516 U.S. at 313. The petition does not challenge whether

“the evidence” was sufficient to “support a finding that

particular conduct occurred.” J/bid. Instead, it presents “an

issue of law,” Br. in Opp. 16—whether “the lawfulness of a

seizure under the Fourth Amendment, and the availability of

qualified immunity, may turn on allegations that the officer

subjectively inferred * * * —and thus ‘knew—that the ar-

restee was innocent.” “et. i; Br. in Opp. 18-19. This Court

repeatedly has gran e¢ seview to address similar qualified

immunity questions j . vrecisely this procedural context. See,

e.g., Saucier, 534 U.S. at 196 (whether qualified immunity and

Fourth Amendment inquiries merge in excessive force cases);

Anderson, 483 U.S. at 638-639 (“level of generality” at which

“clearly established law” is determined); Harlow, 457 U.S. at

816-817 (adopting objective standard for qualified immunity).

While conceding that the question before this Court is

within the limits set forth by Johnson, respondent urges that