# Opposition Brief — Gregory v. Lee

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0214%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1214

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0214%3A2. Public record. Not legal advice.