Case3:09-cv JSW Document44 Filed07/02/09 Page1 of 14

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1 Case3:09-cv JSW Document44 Filed07/02/09 Page1 of SCHFF HARDN LLP WLLAM J. CARROLL (CSB #118106) wcarroll@schiffhardin.com LARRY B. GARRETT (CSB #225192) garrett@schiffhardin.com One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA Telephone: (415) Facsimile: (415) Attorneys for Defendants VCTORA HARRSON, KAREN ALBERTS, WLLAM KASSKE, WADE MACADAM, TMOTHY J. ZUNGA, BRUCE BAUER LONG HAUL, NC., and EAST BAY PRSONER SUPPORT, V. UNTED STATES DSTRCT COURT NORTHERN DSTRCT OF CALFORNA Plaintiff, VCTORA HARRSON; KAREN ALBERTS; WLLAM KASSKE; WADE MACADAM; TMOTHY J. ZUNGA; BRUCE BAUER, et al., Case No. 3:09-cv-0168 JSW DEFENDANTS VCTORA HARRSON, KAREN ALBERTS, WLLAM KASSKE, WADE MACADAM, TMOTHY J. ZUNGA, AND BRUCE BAUER S ANSWER TO FRST AMENDED COMPLANT 20 Defendants Defendants Victoria Harrison, Karen Alberts, William Kasiske, Wade Macadam, 23 and Timothy J. Zuniga (hereinafter collectively referred to as Defendants ) submit following Answer and Affirmative Defenses to Plaintiffs First Amended Complaint (hereinafter Amended Complaint ). Every averment expressly admitted is denied. / / in Amended Complaint not SCHFF HARDN LLF DEFENDANTS VCTORA HARRON, KAREN ALBERTS, WLLAM KASSKE, WADE MACADAM, CASE NO. 3:09-CV-0168 JSW

2 Case3:09-cv JSW Document44 Filed07/02/09 Page2 of 14 ANSWER located at of Defendants admit that Long Haul nfoshop Shattuck Avenue in Berkeley, California. Except (hereinafter as expressly defendants are without knowledge or information sufficient to form a belief allegations set forth in paragraph of Amended Complaint. Long Haul ) is as admitted, to truth 6 2. Defendants are without knowledge or information sufficient to form a belief SCHFFHARDNLLP 7 10 as to officers from Bureau 11 admitted, 12 Complaint was expressly Amended truth of allegations set Defendants of nvestigation admit that forth in paragraph 2 of Amended on August 27, 2008, six or more law University of California at Berkeley Police executed defendants deny allegations set Defendants admit a Complaint. enforcement Department and Federal search warrant on Long Haul. Except that forth in paragraph officers did not inform unaffiliated with Long Haul but maintained office admitted, Complaint. Defendants defendants deny allegations set admit search warrant forced entry through team 20 looked at book 21 on 22 second lock on looked through sales records, list of space in forth in 3 of as expressly Amended magistrate that building. Except paragraph that when Long Haul was closed, team back door of Long Haul. Defendants people who had borrowed books from seized each floor of Long Haul, broke door to EBPS office. of public locks on Except as expressly 23 without knowledge or information sufficient to form a belief 24 allegations set publicly forth in Defendants paragraph admit 5 of that y accessible computers seized conducted searches defendants deny on that data allegations set from Amended or ir from Long Haul access computers Slingshot office, and as Complaint. agents have those computers. forth in - 2 paragraph and that 6 of admitted, to Except copied 4 of EBPS as executing admit library, from a that space unscrewed defendants are truth of data y or ir as expressly on agents have admitted, Amended Complaint. CASE NO. 3:09-CV-O168JSW

3 Case3:09-cv JSW Document44 Filed07/02/09 Page3 of Defendants deny that plaintiffs are entitled to relief which y purport 2 to pursue as set forth in paragraph 7 of Amended Complaint Defendants admit that plaintiffs purport to bring this action under United 4 States Constitution, Title 42 of United States Code 1983 (civil rights action) and aa et seq. (Privacy Protection Act), Title 28 of United States Code 2201 and (declaratory relief), and under Bivens v. Six Unknown Named Agents, 403 U.S, 7 388(1971) Defendants admit that this Court has jurisdiction over this action Defendants admit that venue is proper and assignment to eir San 10 Francisco or Oakland Division is proper pursuant to Local Rule 3-2(d). Except as 11 expressly admitted, defendants deny allegations set forth in paragraph 10 of 12 Amended Complaint Defendants admit Long Haul is located at 3124 Shattuck Avenue in 14 City of Berkeley. Except as expressly admitted, defendants are without knowledge or 15 information sufficient to form a belief as to truth of allegations set forth in 16 paragraph 11 of Amended Complaint Defendants admit that EBPS occupies an office on first floor of Long 18 Haul. Except as expressly admitted, defendants are without knowledge or information 19 sufficient to form a belief as to truth of allegations set forth in paragraph 12 of 20 Amended Complaint Defendants admit that plaintiffs have named United States as a 22 defendant in this action Defendants admit that defendant Victoria Harrison is Associate Vice 24 Chancellor/Chief of Police of University of California at Berkeley Police Department 25 ( UCPD ). Defendants admit that UCPD s primary duty is enforcement of law within 26 campus of University of California at Berkeley and an area within one mile of 27 exterior boundaries of that campus. Defendants furr admit that defendant Harrison 28 has responsibility over operations of UCPD, which include training and SCHFF 1-ARDN CL? CASE NO. 3:09-CV-0168JSW DEFENDANTS ViCTORA HARRSON, KAREN ALBERTS, WLLAM KASSKE, WADE MACADAM,

4 Case3:09-cv JSW Document44 Filed07/02/09 Page4 of 14 supervision of UCPD officers. Defendants admit that at all relevant times, defendant 2 Harrison acted under color of law and in course and scope of her employment 3 with UCPD. Defendants admit that plaintiffs purport to sue defendant Harrison in her 4 official capacity. Except as expressly admitted, defendants deny allegations set forth 5 in paragraph 14 of Amended Complaint Defendants admit that defendant Sergeant Karen Alberts is a Sergeant of 7 nvestigations at UCPD. Defendants furr admit that defendant Alberts participated in 8 execution of subject warrant at Long Haul. Defendants admit that defendant 9 Alberts had responsibility for supervising and controlling or UCPD officers involved in 10 execution of subject warrant at Long Haul. Defendants admit that at all relevant 11 times, defendant Alberts acted under color of law and in course and scope of her 12 employment with UCPD. Defendants admit that plaintiffs purport to sue defendant 13 Alberts in her individual and official capacities. Except as expressly admitted, 14 defendants deny allegations set forth in paragraph 15 of Amended Complaint Defendants admit that defendant Detective William Kasiske is a UCPD 16 police officer, that he applied for and obtained August 26, 2008 search warrant at 17 issue in this case, and that he participated in execution of subject warrant at 18 Long Haul. Defendants admit that defendant Kasiske at all relevant times acted under 19 color of law and in course and scope of his employment with UCPD. Defendants 20 admit that plaintiffs purport to sue defendant Kasiske in his individual and official 21 capacities. Except as expressly admitted, defendants deny allegations set forth in 22 paragraph 15 of Amended Complaint Defendants admit that Detective Wade MacAdam is a UCPD police officer. 24 Defendants admit that defendant MacAdam participated in execution of search 25 warrant at issue in this case. Defendants admit that defendant MacAdam at all relevant 26 times acted under color of law and in course and scope of his employment with 27 UCPD. Defendants admit that plaintiffs purport to sue defendant MacAdam in his 28 SCEFF HARWN LLP 4 CASE NO. 3:09-CV-O1 68 JSW

5 Case3:09-cv JSW Document44 Filed07/02/09 Page5 of 14 individual and official capacities. Except as expressly admitted, defendants deny 2 allegations set forth in paragraph 17 of Amended Complaint Defendants admit that Corporal Timothy J. Zuniga is a UCPD police officer. 4 Defendants admit that defendant Zuniga participated in execution of search 5 warrant at issue in this case. Defendants admit that defendant Zuniga at all relevant 6 times acted under color of law and in course and scope of his employment with 7 UCPD. Defendants admit that plaintiffs purport to sue defendant Zuniga in his individual 8 and official capacities. Except as expressly admitted, defendants deny allegations 9 set forth in paragraph 18 of Amended Complaint Defendants admit that defendant officer Bruce Bauer is a UCPD police 11 officer. Defendants aver that defendant officer Bruce Bauer has been dismissed as a 12 defendant from this matter through an order signed on June 12, Except as 13 expressly admitted, defendants deny allegations set forth in paragraph 19 of 14 Amended Complaint Defendants admit that defendant Special Agent Lisa Schaffer is a special 16 agent of Federal Bureau of nvestigation ( FB ). Defendants furr admit that 17 defendant Shaffer participated in executing search warrant in this case. Defendants 18 admit that at all relevant times defendant Shaffer acted under color of law and in 19 course and scope of her employment with FB. Defendants admit that plaintiffs 20 purport to sue her in her individual and official capacities. Defendants deny that 21 defendant Shaffer participated in obtaining search warrant in this case. Except as 22 expressly admitted or denied, defendants are without knowledge or information sufficient 23 to form a belief as to truth of allegations set forth in paragraph 20 of 24 Amended Complaint Defendants admit that defendant Hart participated in execution of 26 search warrant, as a deputized law enforcement officer under authority and control of 27 FB. Defendants admit that defendant Hart is a retired member of Alameda 28 County Sheriff s Department. Defendants furr admit that at all relevant times SCHFFHARDNLLP CASE NO. 3:09-CV-O168JSW ATrORNEYS AT LAW

6 Case3:09-cv JSW Document44 Filed07/02/09 Page6 of 14 defendant Hart acted under color of law and in course and scope of his 2 engagement with FB. Defendants admit that plaintiffs purport to sue him in his 3 individual and official capacities. Defendants deny that defendant Hart participated in 4 investigation leading up to raid. Except as expressly admitted or denied, 5 defendants are without knowledge or information sufficient to form a belief as to truth 6 of allegations set forth in paragraph 21 of Amended Complaint Defendants admit that plaintiffs purport to sue additional defendants DOES under such fictitious names. Except as expressly admitted, defendants are without 9 knowledge or information sufficient to form a belief as to truth of allegations set 10 forth in paragraph 22 of Amended Complaint Defendants deny allegations set forth in paragraph 23 of Amended 12 Complaint Defendants are without knowledge or information sufficient to form a belief 14 as to truth of allegations set forth in paragraph 24 of Amended Complaint Defendants admit that Long Haul provides public with free computer 16 use and nternet access. Except as expressly admitted, defendants are without 17 knowledge or information sufficient to form a belief as to truth of allegations set 18 forth in paragraph 25 of Amended Complaint Defendants admit that Long Haul serves as a meeting space and resource 20 hub for local activist groups and members of community. Except as expressly 21 admitted, defendant are without knowledge or information sufficient to form a belief as to 22 truth of allegations set forth in paragraph 26 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 24 as to truth of allegations set forth in paragraph 27 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 26 as to truth of allegations set forth in paragraph 28 of Amended Complaint Defendants deny that Slingshot s office is on second floor of Long Haul 28 and marked with a sign that clearly reads Slingshot. Except as expressly denied, SCHFF HARDN LLP CASE NO. 3:09-CV-0168 JSW

7 Case3:09-cv JSW Document44 Filed07/02/09 Page7 of 14 defendants are without knowledge or information sufficient to form a belief as to truth 2 of allegations set forth in paragraph 29 of Amended Complaint Defendants admit that Long Haul offers an nternet room with computers 4 providing online access to public. Defendants admit that nternet room is located 5 on second floor loft of Long Haul, up a staircase separate from staircase leading 6 to Slingshot office. Defendants admit that nternet room contained approximately 7 six operative nternet-connected computers, two hard drives, and five computers that 8 were not connected to monitors. Except as expressly admitted, defendants are without 9 knowledge or information sufficient to form a belief as to truth of allegations set 10 forth in paragraph 30 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 12 as to truth of allegations set forth in paragraph 31 of Amended Complaint Defendants admit that East Bay Prisoner Support s office is on first 14 floor of Long Haul and is marked with a sign indicating that that space is EBPS 15 office. Defendants admit that on August 27, 2008 at time of execution of 16 search warrant, EBPS office was locked. Except as expressly admitted, defendants 17 are without knowledge or information sufficient to form a belief as to truth of 18 allegations set forth in paragraph 32 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 20 as to truth of allegations set forth in paragraph 33 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 22 as to truth of allegations set forth in paragraph 34 of Amended Complaint Defendants admit allegations set forth in paragraph 35 of Amended 24 Complaint Defendants deny allegations set forth in paragraph 36 of Amended 26 Complaint SCHFF HARDN LU CASE NO. 3:09-CV-0168 JSW ATTORN:ys AT LAW

8 Case3:09-cv JSW Document44 Filed07/02/09 Page8 of Defendants admit that Statement of Probable Cause and warrant did 2 not make any reference to EBPS. Except as expressly admitted, defendants deny 3 allegations set forth in paragraph 37 of Amended Complaint Defendants deny allegations set forth in paragraph 38 of Amended 5 Complaint Defendants admit that on Wednesday morning, August 27, 2008, at least 7 three officers from UCPD (Defendants Kasiske, MacAdam, and Alberts) and at least 8 two officers acting on behalf of Federal Bureau of nvestigation (Defendants Shaffer 9 and Hart) arrived at Long Haul. Defendants admit that no one was inside. Defendants 10 admit that y entered through front door of Homeless Action Center next door, 11 went through that office to back of Long Haul, and forced ir entry into Long Haul 12 through its secured back door. Except as expressly admitted, defendants deny 13 allegations set forth in paragraph 39 of Amended Complaint Defendants admit that y did not show anyone warrant during 15 execution of warrant. Except as expressly admitted, defendants are without 16 knowledge or information sufficient to form a belief as to truth of allegations set 17 forth in paragraph 40 of Amended Complaint Defendants admit that y spent approximately two hours searching 19 premises. Defendants admit that y did not permit Long Haul members to enter 20 building during pendency of search. Defendants admit that members of 21 team cut locks off of cabinets behind front desk and looked through log of 22 individuals that borrowed books from library and through log of book sales. 23 Except as expressly admitted, defendants are without knowledge or information 24 sufficient to form a belief as to truth of allegations set forth in paragraph 41 of 25 Amended Complaint Defendants admit that team executing warrant removed every 27 computer which y located during search from building, including computers 28 from Long Haul s public space, and computers from locked offices. Except as expressly SCHFF HARDN LU - 8 CASE NO. 3:09-CV-0168 JSW

9 Case3:09-cv JSW Document44 Filed07/02/09 Page9 of 14 admitted, defendants are without knowledge or information sufficient to form a belief as 2 to truth of allegations set forth in paragraph 42 of Amended Complaint Defendants admit y broke open locked door of an office on 4 second floor which contained Slingshot publications and seized computers from that 5 room Defendants are without knowledge or information sufficient to form a belief 7 as to truth of allegations set forth in paragraph 44 of Amended Complaint Defendants deny allegations set forth in paragraph 45 of Amended 9 Complaint Defendants are without knowledge or information sufficient to form a belief 11 as to truth of allegations set forth in paragraph 46 of Amended Complaint Defendants admit that team executing warrant unscrewed lock 13 fastened on door of EBPS office. Defendants admit that team entered 14 EBPS office and seized a computer. Except as expressly admitted, defendants deny 15 allegations set forth in paragraph 47 of Amended Complaint Defendants are without knowledge or information sufficient to form a belief 17 as to truth of allegations set forth in paragraph 48 of Amended Complaint Defendants deny allegations set forth in paragraph 49 of Amended 19 Complaint Defendants admit allegations set forth in paragraph 50 of Amended 21 Complaint Defendants deny allegations set forth in paragraph 51 of Amended 23 Complaint Defendants admit allegations set forth in paragraph 52 of Amended 25 Complaint Defendants admit that y or ir agents have copied or caused to be 27 copied data from computers and storage media seized from Long Haul, 28 Slingshot office, and EBPS office. Defendants admit that devices were returned SCHFF HARDN LLP CASE NO. 3:O9-CVO168 JSW ATrORNEYS AT LAW

10 Case3:09-cv JSW Document44 Filed07/02/09 Page10 of 14 to plaintiffs following execution of warrant. Defendants deny that y have 2 illegally retained copies of data. Except as expressly admitted or denied, defendants 3 are without knowledge or information sufficient to form a belief as to truth of 4 allegations set forth in paragraph 53 of Amended Complaint Defendants admit that on October 22, 2008, counsel for plaintiffs stated 6 that Slingshot computers are protected by Privacy Protection Act, 42 U.S.C aa et seq. in a letter sent to UCPD and FB. Defendants admit that on October 8 27, 2008, counsel for plaintiffs asserted that EBPS computers are also protected by 9 that same act, in a letter sent to UCPD and FB. Defendants admit that both letters 10 asked UCPD and FB to cease any search of computer data and destroy any 11 copies. Defendants deny that UCPD refused. Except as expressly admitted or denied, 12 defendants lack knowledge or information sufficient to form a belief as to truth of 13 allegations set forth in paragraph 54 of Amended Complaint Defendants admit that after May 19, 2009, pursuant to a stipulation 15 between parties, this Court ordered defendants to refrain from searching data copied 16 from devices seized from Slingshot and EBPS without advance notice to plaintiffs. 17 Defendants admit no such restrictions have been imposed on defendants with regard to 18 data copied from devices defendants seized from public access area. 19 Defendants admit that y have caused that data to be searched. Except as expressly 20 admitted, defendants deny allegations set forth in paragraph 55 of Amended 21 Complaint Defendants deny allegations set forth in paragraph 56 of Amended 23 Complaint Defendants deny allegations set forth in paragraph 57 of Amended 25 Complaint Defendants deny allegations set forth in paragraph 58 of Amended 27 Complaint. 28 SCHFFHARDNLLP 10 CASE NO. 3:09-CV-O168JSW SAN )RANCSCO

11 Case3:09-cv JSW Document44 Filed07/02/09 Page11 of Defendants incorporate by reference ir answers, set forth above, to 2 each allegation in each paragraph incorporated by reference in paragraph 59 of 3 Amended Complaint Defendants deny allegations set forth in paragraph 60 of Amended 5 Complaint Defendants incorporate by reference ir answers, set forth above, to 7 each allegation in each paragraph incorporated by reference in paragraph 61 of 8 Amended Complaint Defendants deny allegations set forth in paragraph 62 of Amended 10 Complaint Defendants incorporate by reference ir answers, set forth above, to 12 each allegation in each paragraph incorporated by reference in paragraph 63 of 13 Amended Complaint Defendants deny allegations set forth in paragraph 64 of Amended 15 Complaint Defendants incorporate by reference ir answers, set forth above, to 17 each allegation in each paragraph incorporated by reference in paragraph 65 of 18 Amended Complaint Defendants deny allegations set forth in paragraph 66 of Amended 20 Complaint Defendants deny allegations set forth in paragraph 67 of Amended 22 Complaint Defendants deny that plaintiffs are entitled to relief requested in ir 24 prayer for relief, or to any or relief in any form whatsoever. 25 GENERAL DENAL 26 The defendants generally deny each and every allegation and legal conclusion 27 set forth in Amended Complaint not specifically admitted in this Answer. 28 SCHTFFHARDNLLP CASE NO. 3:09-CV-O168JSW

12 Case3:09-cv JSW Document44 Filed07/02/09 Page12 of 14 AFFRMATVE DEFENSES 2 As and for its affirmative defenses, and without admitting that any act or omission 3 on part of defendants has been improper or in violation of any statute, law or 4 regulation, defendants allege as follows: 5 FRST AFFRMATVE DEFENSE 6 (FALURE TO STATE A CAUSE OF ACTON) 7 The Amended Complaint, and each alleged cause of action, fails to state any 8 claim upon which relief can be granted and to allege facts sufficient to constitute any 9 cause of action. 10 SECOND AFFRMATVE DEFENSE 11 (ACTS OF OTHERS) 12 For each and every cause of action, any damages or injuries alleged were 13 proximately caused in whole or in part by negligence, fault, carelessness, or willful 14 acts or omissions of plaintiffs, or of parties whom defendants neir controlled nor had 15 right to control, and not by any acts, omissions, or or conduct of defendants. 16 Therefore, any damages sustained by plaintiffs are barred against defendants or must 17 be reduced according to rules of equitable indemnity and comparative fault. 18 THRD AFFRMATVE DEFENSE 19 (FALURE TO MTGATE) 20 For each and every cause of action, plaintiffs are barred from recovery, in whole 21 or in part, because of ir failure to mitigate damages. 22 FOURTH AFFRMATVE DEFENSE 23 (FALURE TO STATE A CLAM FOR DECLARATORY RELEF) 24 Plaintiffs have failed to state a claim for declaratory relief. 25 FFTH AFFRMATVE DEFENSE 26 (FALURE TO STATE A CLAM FOR NJUNCTVE RELEF) 27 Plaintiffs have failed to state a claim for imposition of injunctive relief against 28 defendants. SCFFHARDNLLP 12 CASE NO. 3:09-CV-O168JSW

13 - Case3:09-cv JSW Document44 Filed07/02/09 Page13 of 14 SXTH AFFRMATVE DEFENSE 2 (QUALFED MMUNTY) 3 Defendants are immune from liability for any alleged constitutional violations by 4 virtue of qualified immunity. 5 SEVENTH AFFRMATVE DEFENSE 6 (EXSTENCE OF PROBABLE CAUSE) 7 Probable cause existed to justify search and seizure of items listed in 8 search warrant referenced in Amended Complaint. 9 EGHTH AFFRMATVE DEFENSE 10 (ADEQUATE TRANNG ASSERTED UNDER 42 U.S.C. 1983) 11 UCPD did not fail to train individual defendants, nor was its training program 12 inadequate such that plaintiffs were injured as a result. 13 NNTH AFFRMATVE DEFENSE 14 (GOOD FATH DEFENSE ASSERTED UNDER 42 U.S.C. 2OOOAA-6(B)) 15 Defendants assert that y had a reasonable good faith belief in lawfulness 16 of ir conduct. 17 PRAYER FOR RELEF 18 WHEREFORE, defendants pray: That plaintiffs take nothing by way of first amended complaint; That judgment be entered in favor of defendants; For costs of suit herein, including reasonable attorneys fees, costs, and 22 litigation expenses, to extent authorized by applicable law; and SCHFFHARDNLP AlTORNEYSATLAW CASE NO. TMOTHY ZUNGA, AND BRUCE BAUER S ANSWER TO FRST AMENDED COMPLANT J. 3:09-CV-O168JSW

14 Case3:09-cv JSW Document44 Filed07/02/09 Page14 of For such or and furr relief as Court may deem just and proper. 2 3 Dated: July 2, 2009 SCHFF HARDN LLP 4 5 By: s? William S. Carroll WLLAM J. CARROLL 6 Attorneys for Defendants THE REGENTS OF THE UNVERSTY OF 7 CALFORNA, VCTORA HARRSON, KAREN ALBERTS, WLLAM KASSKE, 8 WADE MACADAM, TMOTHY J. ZUNGA, BRUCE BAUER 10 SF\ SCHFF HARDN CL ATTORNEYS AT LAW CASE NO. 3:09-CV-0168 JSW