Case:0-cv-00-JSW Document Filed0// Page of 0 MELINDA HAAG (SBN United States Attorney JOANN M. SWANSON (SBN Chief, Civil Division JONATHAN U. LEE (SBN NEIL T. TSENG (SBN Assistant United States Attorneys 0 Golden Gate Avenue, Floor San Francisco, California 0- Telephone: ( -0 Facsimile: ( - Email: jonaan.lee@usdoj.gov ATTORNEYS FOR DEFENDANTS UNITED STATES, LISA SHAFFER, AND MIKE HART LONG HAUL, INC. AND EAST BAY PRISONER SUPPORT, v. Plaintiffs, UNITED STATES OF AMERICA; MITCHELL CELAYA; KAREN ALBERTS; WILLIAM KASISKE; WADE MACADAM; TIMOTHY J. ZUNIGA; MIKE HART; LISA SHAFFER; AND DOES -. Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION No. C 0-0 JSW NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION BY DEFENDANTS LISA SHAFFER AND MIKE HART; (PROPOSED ORDER Place: Courtroom, Floor Judge: Hon. Jeffrey S. White
Case:0-cv-00-JSW Document Filed0// Page of 0 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE at pursuant to Norern District of California Civil Local Rule -(b(, Defendants Lisa Shaffer and Mike Hart hereby move is Court for an order granting em leave to file a motion for reconsideration of is Court s July, Order Regarding Motions For Summary Judgment ( Order. As required by Civil Local Rule -, Defendants Shaffer and Hart respectfully contend, as discussed more fully below, at e Order is [a] manifest failure by e Court to consider material facts or dispositive legal arguments which were presented to e Court before such interlocutory order. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Under Norern District Civil Local Rule -, a party may seek leave to file a motion for reconsideration any time before judgment. N.D. Civ. L.R. -(a. A motion for reconsideration may be made on one of ree grounds: ( a material difference in fact or law exists from at which was presented to e Court, which, in e exercise of reasonable diligence, e party applying for reconsideration did not know at e time of e order; ( e emergence of new material facts or a change of law; or ( a manifest failure by e Court to consider material facts or dispositive legal arguments presented before entry of judgment. N.D. Civ. L.R. -(b(-(. The moving party may not reargue any written or oral argument previously asserted to e Court. Id., -(c. See also Hopkins v. Bonvicino, WL, * (N.D. Cal. Mar., (White, J. (unpublished; School Dist. No. J, Multnomah County, Or. v. ACandS, Inc., F.d, ( Cir. ( Reconsideration is appropriate if e district court ( is presented wi newly discovered evidence, ( committed clear error or e initial decision was manifestly unjust, or ( if ere is an intervening change in controlling law.. /// C 0-0 JSW
Case:0-cv-00-JSW Document Filed0// Page of 0 follows: Defendants Shaffer and Hart seek leave to move for reconsideration of e Order as. There is no material fact supporting e Order s conclusion at neier defendant Shaffer nor defendant Hart enjoy qualified immunity because e statement of probable cause and search warrant were not at e scene of e search in dispute.. Even if ere were evidence supporting e conclusion at neier defendant Shaffer nor defendant Hart has qualified immunity because e statement of probable cause and search warrant were not at e scene of e search in dispute, defendants Shaffer and Hart were line officers, and erefore ey have qualified immunity because as a matter of law neier had a duty to read or even see e warrant but could reasonably rely on e description ey received from e lead officer at e pre-search briefing as well as eir own review of e warrant and statement of probable cause.. On plaintiffs claim at defendants Shaffer and Hart s conduct in e execution of e search warrant violated e Four Amendment, which because of e Court s analysis of e plaintiffs overbread claim e Court did not reach, defendants Shaffer and Hart request at e Court now reach is additional claim under e Four Amendment and grant eir motion for summary judgment based on qualified immunity. I. No Facts Support e Order s Conclusion That e Warrant and Probable Cause Statement Were Not Present At e Search. In its Order, e Court concluded at, viewing e evidence in e light most favorable to plaintiffs, e statement of probable cause did not accompany e warrant to e scene of e search and erefore e warrant was indisputably overbroad and no reasonable officer could have mistakenly believed oerwise. The Court pointed to deposition testimony by lead officer Detective Kasiske of e University of California-Berkeley Police Department ( UCBPD in which he stated he did not remember for certain wheer he had e statement of probable cause wi him at e time of e search but he believed at it was probably likely at he did. (Docket #: Supplemental Declaration of Matew Zimmermann, Ex. at :-. The oer officers testimony plaintiffs cited in e motion proceedings support a conclusion at C 0-0 JSW
Case:0-cv-00-JSW Document Filed0// Page of 0 particular officers eier did not know or could not remember wheer or not e probable cause statement was attached to e warrant. (Docket #0: Ex., Deposition of Karen Alberts, :-. Defendant Shaffer, however, stated at her recollection is at e statement of probable cause was in fact attached to e search warrant. (Docket #: Declaration of Lisa Shaffer,.. This body of testimonial evidence did not support a conclusion at ere was a disputed material question of fact on is issue. The Court erred when it found at in considering e evidence in e light most favorable to e non-moving party, ere was evidence creating a question of fact which precluded granting summary judgment. As a result, summary judgment should have been granted in favor of defendants Shaffer and Hart on eir qualified immunity defense. II. On Plaintiffs Overbread Claim, Defendants Shaffer and Hart Should Enjoy Qualified Immunity Wheer or Not e Warrant and Probable Cause Statement Were Present At e Search. Even if ere is a triable issue of fact regarding wheer e warrant and probable cause statement were present at e scene of e search, as a matter of law, bo defendants Shaffer and Hart have qualified immunity from plaintiffs claim at e search warrant was overbroad. Here, ere was no dispute over e roles of Shaffer or Hart in applying for e warrant or its execution. Defendants Shaffer and Hart were FBI employees who were involved only because of a request from e University of California-Berkeley Police Department ( UCBPD for assistance in carrying out e search. Neier participated in e drafting of e warrant application or presenting e application to e Alameda County judge, bo of which were done by UCBPD. Bo Shaffer and Hart attended e pre-search briefing meeting on e morning of e search and were provided wi a copy of e warrant and e statement of probable cause, which bo reviewed. Bo relied on e explanation of UCBPD s investigation at resulted in e warrant application, e warrant as issued, and e search planned by UCBPD, given by UCBPD s lead officer, Detective Kasiske, at e pre-search briefing meeting. Qualified immunity analysis is dependent on e individual officer s particular role in e search in question. Under Nin Circuit precedent, neier Shaffer nor Hart were required to read, review or even see e warrant or probable cause statement because ey attended e C 0-0 JSW
Case:0-cv-00-JSW Document Filed0// Page of 0 briefing meeting and learned before e search about e nature and scope of e warrant and e contents of e probable cause statement. Ramirez v. Butte-Silver Bow County, F.d 0, 0 ( Cir. 0 ( Line officers... are required to do much less. They do not have to actually read or even see e warrant; ey may accept e word of eir superiors at ey have a warrant and at it is valid. ; KRL v. Estate of Moore, F.d, 0 ( Cir. 0 ( [E]ven if a warrant is so lacking in probable cause at official reliance is unreasonable, line officers who do not read e warrant are still entitled to qualified immunity if ey inquire as to e nature and scope of e warrant, and rely on representations made by eir superiors.. Wheer or not e statement of probable cause accompanied e search warrant when e search was executed, under clearly established precedent, defendants Shaffer and Hart have qualified immunity because as line officers ey did not have a duty to read or even see e warrant but could reasonably rely on e description ey received from e lead officers. III. On Plaintiffs Claim That Defendants Shaffer and Hart s Conduct In The Execution of e Search Warrant Violated e Four Amendment, The Court Should Have Granted Summary Judgment Based on Qualified Immunity. The Court in its Order denying summary judgment on qualified immunity grounds made no distinction between e conduct of Defendant Shaffer, Defendant Hart or e oer officers named as Defendants. The undisputed evidence established at Defendants Shaffer and Hart, in addition to no involvement in e planning of e search, had only minimal involvement in e execution of e warrant. There is no dispute regarding Shaffer and Hart s actions during e search. Detective Shaffer assisted in e search of e premises by looking in a limited number of file cabinets and oer document repositories; she did not seize anying. Defendant Hart did not assist e search by looking at or seizing any materials but provided external surveillance in case crowds gaered outside e premises. Bo Shaffer and Hart also assisted UCBPD by carrying a portion of e boxes of computer equipment to UCBPD vehicles parked outside e building. Neier Shaffer nor Hart ever searched any computers or computer-related equipment seized from e premises. C 0-0 JSW
Case:0-cv-00-JSW Document Filed0// Page of The Court should erefore grant e motion on e basis at defendants Shaffer and Hart have qualified immunity against plaintiffs claim at eir conduct in executing e search warrant violated e Four Amendment. CONCLUSION For e foregoing reasons, Defendants Shaffer and Hart request permission from is Court to file eir motion for reconsideration. Respectfully submitted, MELINDA HAAG United States Attorney 0 Dated: September, /s/ JONATHAN U. LEE NEILL T. TSENG Assistant United States Attorneys Attorneys for Defendants Lisa Shaffer and Mike Hart C 0-0 JSW
Case:0-cv-00-JSW Document Filed0// Page of [PROPOSED] ORDER Good cause appearing, Plaintiffs motion for leave to file a motion for reconsideration is hereby GRANTED. IT IS SO ORDERED. 0 Dated: HONORABLE JEFFREY S. WHITE United States District Judge C 0-0 JSW