Notes on format: The above Table of Contents is not part of the original document, but has been added to aid readability and online navigation. Each of the items above is a link to the referenced section in the document. The pagination of the original document has been preserved by including the original page numbers at the bottom of each original page, with a horizontal line indicating original page breaks. The line numbering and double line spacing of the original have been abandoned in the interest of compactness and printability. Apart from these changes and possible inadvertent errors due to OCR processing of the faxed decision, the following is a verbatim copy of the original document.

issues, and grants Defendants' counter-motion in part and denies it in part. SAIC Held's motion for summary judgment, previously heard on January 12, 1996, is granted.

BACKGROUND

This case arises from a much-publicized bomb explosion that injured Ms. Bari and Mr. Cherney on May 24, 1990, and from the ensuing investigation by the Federal Bureau of Investigation ("FBI") and the Oakland Police Department. Previous orders of the Court have discussed the general background facts in this case. See also Mendocino Environmental Ctr. v. Mendocino County, 14 F.3d 457 459-60 (9th Cir. 1994). Specific facts relevant to this motion are discussed below. (Note 1)

I. PLAINTIFFS' ARREST

Oakland Police placed Ms. Bari under arrest at 3:00 p.m. on May 24, 1990, just a few hours after the explosion, while Ms. Bari was still hospitalized and before the police obtained search warrants
_________________________
(Note 1) Defendants have objected to the photographs and documents that Plaintiffs have attached to their motion for summary judgment, arguing that this evidence was not properly authenticated. Plaintiffs' counsel, Dennis Cunningham, has signed two sworn statements that Plaintiffs' exhibits are true and correct copies of photographs and documents obtained from Defendants during discovery and of deposition transcripts. Plaintiffs' Motion at 42; Plaintiffs' Reply at 10 n.4. This statement is sufficient to authenticate the deposition transcripts. Ms. Bari's declaration (Exhibit 8-b) authenticates some of the photographs based on her personal knowledge of the bomb scene and of FBI evidence she subsequently examined. Plaintiffs' ¶-6, ¶-17 through ¶-19. As for the other FBI and Oakland Police Department reports and photographs mentioned in this order, the Court notes that these documents were produced by Defendants to Plaintiffs during discovery, and Defendants have not suggested any reason to believe that the documents they produced are not authentic. The Court therefore will assume that these documents are authentic. Defendants' objections to other evidence not referred to herein are overruled as moot.

for her home. Plaintiffs' Ex. 3-a. (Note 2) Ms. Bari was booked in absentia for possession of an explosive device in violation of California Penal Code section 12303.2. In the arrest report, Oakland Police Officer W. Ludwig stated that he met the ambulances transporting Ms. Bari and Mr. Cherney at the hospital and attempted to interview Ms. Bari while she was in a trauma room. Ms. Bari was in a great deal of pain and could not make a formal written statement, but she stated that she was an Earth First! political activist, that the timber industry was responsible for bombing her car, and that she had received death threats from two named Nazi party members. Officer Ludwig mentioned that he recovered Ms. Bari's clothing but did not discuss any other evidence that might incriminate her. Officer Ludwig named Defendant Oakland Police Sergeant Michael Sitterud as the complainant.

Sgt. Sitterud arrested Mr. Cherney at 3:00 a.m. on May 25, 1990, after transporting him from the hospital to a police station and interviewing him. Plaintiffs' Ex. 3-b; Ex. 44. Mr. Cherney was arrested for, inter alia, possession of a destructive device and possession of a destructive device in a public place in violation of California Penal Code sections 12303 and 12303.2. Mr. Cherney had previously given his consent to Defendant FBI Special

____________________
(Note 2) Lt. Sims testified that he did not make the decision to arrest Ms. Bari until after consulting with FBI agents and Alameda County Deputy District Attorneys at Oakland Police Headquarters in the late evening of May 24 and early morning of May 25, 1990. Plaintiffs' Ex. A-5 at 289, 299-300, 309-10. He was unable to explain why an arrest report reported the time of "1500," or 3:00 p.m., on May 24, 1990, as the time of Ms. Bari's arrest.

Agent ("SA") Phillip Sena and SA David E. Williams (note 3) to search his van. Plaintiffs' Ex. 10; Ex. 44. A search of Mr. Cherney's van revealed a metal tool box with bluish grey duct tape, red wires, alligator clips, and a bag containing items that Sgt. Sitterud believed were "a road spiking kit to blow out lumber truck tires": "a plastic pipe nipple with metal end caps and 6-8 pieces of one half inch 12" long rebar sharpened at one end." Plaintiffs' Ex. 10. Sgt. Sitterud did not explain the basis for his belief that these items constituted a road spiking kit. Mr. Cherney claims that someone gave him this bag several months before the explosion and that he had intended to use the spikes "to hold down papers and - T-shirts on tables at outdoor events." Plaintiffs' Ex. A-3 (Second Cherney Decl.) at 1. He claims that he "never used them or thought to use them as road spikes." Id.

Prior to Mr. Cherney's arrest, SAs Reikes and Doyle briefed Lt. Sims, Sgts. Chenault and Sitterud, and other Oakland police officers in the late evening of May 24, 1990, at the Oakland Police Department Headquarters. Plaintiffs' Exs. 10, 13. This briefing also informed Sgt. Chenault's affidavit for the first search warrant, as will be discussed further below. SA Reikes briefed the Oakland police about the FBI's prior investigations of Earth First! with regard to the destruction of power poles in Arizona and Santa Cruz Plaintiffs' Ex. 34-d (Sitterud Depo.) at 36; Ex. 13. SA Doyle briefed the officers about the location and components of the

______________________
(Note 3) As will be discussed below, another FBI agent named David H. Williams conducted various laboratory tests. David R. Williams will be referred to as "SA Williams" in this order.

bomb in Ms. Bari's car. Plaintiffs' Exs. 10, 13.

II. THE FIRST SEARCH WARRANT

At 2:21 a.m. on May 25, 1990, the Municipal Court of the Oakland-Piedmont Judicial District issued a warrant for the search of Ms. Bari's home in Redwood Valley, California. (Note 4) Plaintiffs' Ex. 7; Ex. 10. The affidavit was prepared by Sgt. Sitterud's partner, Defendant Sergeant Robert Chenault, and contained information from various sources.

A. Plaintiffs' Statements to Paramedics

Sgt. Chenault spoke with the paramedics who transported Ms. Bari and Mr. Cherney to the hospital after the explosion. According to Sgt. Chenault's affidavit in support of the first search warrant, Ms. Bari told Sal Taormina, a paramedic at the scene, that a bomb went off in her car. Plaintiffs' Ex. 7. However, SA Stewart Daley's report from interviews he conducted with the paramedics on May 30, 1990, makes no mention of this statement by Ms. Bari. Plaintiffs' Ex. 42. According to Sgt. Chenault's affidavit, Mr. Cherney, who was transported to the hospital in a separate ambulance, told another paramedic that he and Ms. Bari were political activists with Earth First!, that the explosion was an assassination attempt, and that "they threw a bomb at us." Plaintiffs' Ex. 7; see also Ex. 10 (Sgt. Sitterud's chronology citing Sgt. Chenault). Sgt. Chenault noted in his

______________________
(Note 4) The first warrant also authorized the search of a structure in Berkeley in which the group Seeds of Peace was based and where Ms. Bari and Mr. Cherney had met with the group the night before the explosion.

affidavit that Mr. Cherney's explanation of the incident, that a bomb had been thrown at them, was "inconsistent with the physical evidence found at the scene." Id. Mr. Cherney denies ever saying or believing that a bomb had been thrown into the car. Plaintiffs' Ex. 44 (June 23, 1997 Cherney Decl.) at ¶ 1. SA Daley's interview notes make no mention of Mr. Cherney's alleged statement that a bomb was thrown into the car. Plaintiffs' Ex. 42.

B. Information from SA Doyle

Sgt. Chenault included in his affidavit information he obtained from Defendant SA Frank Doyle, Jr. SA Doyle is experienced in terrorism and bomb matters.

1. Nails

According to the affidavit, SA Doyle told Sgt. Chenault that he examined Ms. Bari's car at the scene of the explosion and observed components of a pipe bomb. SA Doyle observed "numerous nails bound together by silver duct tape for shrapnel effect." Plaintiffs' Ex. 7. The affidavit also states that SA Doyle told Sgt. Chenault that "a separate bag of nails was discovered in the vehicle that are identical to the nails taped to the explosive device." Id. SA Doyle testified in his deposition that SA Stockton Buck showed him nails that had been found in Ms. Bari's car near the rear seat. First Sher Decl. Ex. 2 at 196. (Note 5) At his deposition, SA Doyle did not recall seeing a bag of nails as stated in the affidavit. Id.
_________________
(Note 5) The First and Second Sher Declarations were filed in support of the Federal Defendants' Motion for Partial Summary Judgment on the Plaintiffs' Claims for Unlawful Search, which was stricken. Defendants have resubmitted these declarations as exhibits E and F to the Third Sher Declaration.

at 194-95, 197. SA Doyle testified that he compared nails that SA Buck found in the vehicle with nails found in the roadway. Id. at 200. SA Doyle has no expertise in tool marks. He simply held the nails up and compared them and found them to be "identical" in the "layman's" sense of the word. Id. at 199. SA Doyle did not recall whether he told Oakland officers that the nails were identical or that they appeared to be identical. Id. at 200.

The FBI inventory showed that one bag of roofing nails and one bag "containing an assortment of nails" were found at the scene of the bombing. Plaintiffs' Ex. 26-b. The nails on the bomb were identified as finishing nails. Ms. Bari states in a declaration that she examined the two bags of nails obtained from her car, one containing "a clump of 1" roofing nails, all the same size, with no finishing nails in it," and one containing "a small quantity of 8d vinyl sinkers and 6d box nails," with "no other kinds or sizes of nails in the bag and . . . no finishing nails." Plaintiffs' Ex. 8- b. According to Ms. Bari, the nails in the bags were "clearly different" from the bomb nails. Id. Plaintiffs' counsel William Simpich also inspected the nails and described the bag "containing an assortment of nails" as a bag of "framing nails." Plaintiffs' Ex. 26-a ¶ 3. Mr. Simpich states, "Like roofing nails, framing nails have flat heads; finishing heads have tiny, rounded heads, and the difference is clear." Id. Plaintiffs have submitted photographs which, although not taken to scale, show that the flat- headed nails in the two bags listed on the FBI inventory of crime scene evidence are not identical or even similar to the small,

rounded heads of the finishing nails from the bomb. SA Doyle stated that SA Buck did not show him any roofing nails or nails with flat heads. First Sher Decl. Ex. 2 at 193-94. At his deposition, SA David R. Williams, the FBI crime lab technician, testified at first that the nails in a bag in the trunk of Ms. Bari's car were clearly of a different type than the nails on the bomb. Plaintiffs' Ex. 25-a at 247-48. Later he testified that he thought he had made at least one match between a nail in that bag and the nails from the bomb, but he was unable to identify such a match in the FBI records. Id. at 288-3O6.

2. Location of Bomb

In his affidavit in support of the first search warrant, Sgt. Chenault reported that FBI agents at the scene of the explosion told him that "the bomb device was on the floor board behind the drivers [sic] seat when it detonated." Plaintiffs' Ex. 7. According to the affidavit, SA Doyle informed Sgt. Chenault "that his [SA Doyle's] conclusion regarding the location of the explosive device was based upon his observations of a large hole in the rear seat floorboard immediately behind the driver's seat and his observations of nails, duct tape and pipe bomb fragments in the roadway and the inside of the vehicle." Id. SA Doyle testified in his deposition that his conclusion about the location of the bomb was subject to the "caveats" that "a normal rundown of a crime investigation had not occurred" and that he had not seen an intact car or FBI laboratory results. Plaintiffs' Ex. 37 at 115-16, 123, 125. SA Doyle spoke at the FBI briefing session before Sgt.

Chenault drafted his affidavit, but SA Doyle could not remember if he specifically expressed these caveats to the Oakland Police. Id. at 117-18, 125-26. SA Doyle had assumed that "generally in compact cars, the seats are very close to the sliding rail and there's not room to put anything underneath the seat of any substance," and he stated in his deposition that "when I actually saw the duplicate car, I was surprised how much space there was" under the seat, and that "had [he] seen [the duplicate car], [he]may have . . . had a different opinion." Id. at l16, 153. SA Doyle testified that he waited at the front of a room at the Oakland Police headquarters while others in the back of the room drafted the affidavit on a computer from comments he had made at the briefing, and he was then summoned to the back of the room to review the affidavit and make corrections. Id. at 126-27. He made some corrections, although he could not remember at his deposition what they were. Id. at 127-28. Sgt. Chenault testified, however, that SA Doyle "almost dictated" portions of the affidavit to Sgt. Chenault while Sgt. Chenault wrote the affidavit at the computer. Plaintiffs' Ex. 19 at 43-44. Sgt. Chenault claimed that he included all of the information that SA Doyle gave him in the affidavit. Id. at 44.

Photographs taken at the bomb scene on May 24, 1990, show that the driver's seat was removed at the scene and that the hole in the rear seat floorboard extended under the driver's seat. Plaintiffs' ¶-8, ¶-9. SA Doyle could not remember at his deposition whether he had seen the car at the scene without the driver's seat, although

he thought that he "probably bent over and stuck [his]head down" to try and see the entire hole. Plaintiffs' Ex. 37 at 118-19. The report of Oakland Police Department Evidence Technician Michelle Gribi states that she took photos at the scene of the bombing of damage "under the drivers seat." Plaintiffs' Ex. 9 (emphasis added). SA McKinley's May 25, 1990 report states that there was a hole "under and to the rear of the driver's seat," as well as "through the driver's seat." Plaintiffs' Ex, 11-a. A report by an Alameda County Sheriff Deputy also stated, "It appeared that the device was underneath and possibly just to the rear of the drivers seat." Third Sher Decl. Ex. A. ATF Agent James Flanigan testified that when he observed the car at the scene, he concluded that the bomb was "underneath the [driver's] seat, towards its rear," but that at least a portion of the bomb would have protruded behind the seat and been visible. First Sher Decl. Ex. 5 at 41.

C. Interviews with Ms. Marr and Mr. Kemnitzer

Sgt. Chenault included in his affidavit information regarding Earth First!'s reputation for violence that he obtained from interviews he and Sgt. Sitterud conducted. Sgts. Chenault and Sitterud interviewed Shannon Marr and David Kemnitzer, both of whom had worked and spent time with Plaintiffs shortly before the explosion occurred. Plaintiffs were following Shannon Marr at the time of the explosion, and Plaintiffs had departed from David Kemnitzer's house on the day of the explosion. Sgt. Chenault stated in his affidavit, "Marr said that Seeds of Peace [was]

concerned about joining with Earth First! because it had a reputation for violence and property destruction. Marr said that Bari and Cherney and other Earth First! members convinced Seeds of Peace to support the demonstration." Plaintiffs' Ex. 7. Sgt. Chenault also included a similar description of Earth First! from Mr. Kemnitzer: "Kemnitzer told affiant that Earth First! had a reputation of violence and sabotage. Kemnitzer said there were several meetings where Bari and Cherney said that the Redwood Summer would be strictly nonviolent." Id.

The affidavit's description of Ms. Marr's and Mr. Kemnitzer's statements is reflected in the interview notes of both Sgt. Sitterud and Sgt. Chenault. Plaintiffs' Ex. 41­a at 4­5 (Sgt. Chenault's notes of interview with Ms. Marr) ("Earth­First [sic] has a reputation of tree spiking, monkey wrenching cars. . . . At first we said we wouldn't condone Earth First because of their rep. for prop. damage. They told us this demonstration would be non violent. We decided to help them under that condition."); Ex. 41­b at 3­4 (Sgt. Sitterud's notes of interview with Ms. Marr) ("Judy [sic] & Darryl are for non violence . . . . We had a lot of concern about involving ourselves with Earth First. We voted to support them under condition if it was to be non­violent."); Ex. 41­c at 1, 3 (Sgt. Chenault's notes of interview with Mr. Kemnitzer) ("Judy mentioned death threats. We discussed non­violence. People insisted that Earth 1st [sic] be non­violent not destroy prop. " "Earth First has a lousy reputation a very militant environmental group ­­ involved in sabotage, tree spiking

wrecking bulldozers."); Ex 41­d at 1, 3 (Sgt. Sitterud's notes l of interview with Mr. Kemnitzer) ("People at meeting were very |concerned about non­violence." "Earth First has a lousy reputation l to my knowledge. They were associated in past with sabotage, spiking etc. This was all to be a thing of the past.") In their depositions, Ms. Marr and Mr. Kemnitzer testified that although they did mention Earth First!'s reputation for violence, the context of these statements was that they had worked with Earth First! and concluded that this reputation was unfounded. Plaintiffs' Ex. 39 (Marr Depo. at 44­48); Plaintiffs' Ex. 40 (Kemnitzer Depo.) at 36­38. Ms. Marr stated that she had explained to Sgt. Sitterud that Seeds of Peace was not concerned that Redwood Summer would be violent. Plaintiffs' Ex 39 at 44. She also stated that the interview notes of Sgt. Chenault and Sgt. Sitterud omitted some information that she had given them and did contain statements that she did not remember making. Id. at 46. She specifically did not remember telling the police that Earth First! had a "reputation for property damage." Id. at 47.

Mr. Kemnitzer acknowledged at his deposition that he told Sgt. Sitterud that he initially had some anxieties about Earth First!' a reputation, but he insisted that he also told the police that after working with Earth First!, he discovered that the group's reputation for violence was undeserved. Plaintiffs' Ex. 40 (Kemnitzer Depo.) at 36, 38, 40. He also allegedly told the police that "particularly Judi and Darryl" were not violent. Id. at 37. Both Ms. Marr and Mr. Kemnitzer told Sgts. Chenault and Sitterud

that Ms. Bari had received death threats. Plaintiffs' expert Anthony Bouza criticized Sgt. Chenault's affidavit in support of the first search warrant for inaccurately taking Ms. Marr's and Mr. Kemnitzer's statements out of context. Plaintiffs' Ex. 36 (Bouza Depo. ) at 57­59, 87­88.

D. Plaintiffs' Characterization as Terrorists

Sgt. Chenault stated that he believed that Ms. Bari and Mr. Cherney were "members of a violent terrorist group involved in the manufacture and placing of explosive devices" and that they "were transporting an explosive device in their vehicle when the device exploded." Plaintiffs' Ex. 7. Although Sgt. Chenault does not mention the FBI briefing in his affidavit, SA Reikes briefed the Oakland Police on May 24, 1990, after the explosion and before the first warrant was obtained, about the FBI's investigation of Earth First! Plaintiffs' Ex. 34­d (Sitterud Depo.) at 36. SA Reikes stated in his deposition that the FBI did not characterize Earth First! as a terrorist group. Plaintiffs' Ex. 34­f (Reikes Depo.) at 348. However, according to Sgt. Sitterud, SA Reikes stated at the briefing that Earth First! "qualified as terrorists" and that the FBI was investigating Ms. Bari and Mr. Cherney as suspects in other incidents. Plaintiffs' Ex. 34­d at 36. Sgt. Chenault also testified that an FBI agent called Earth First! "terrorists [who] were being investigated by the terrorist squad," although Sgt. Chenault could not recall the agent's name. Plaintiffs' EX, 19 at 45­48, 50. Furthermore, in his May 25, 1990 report, SA McKinley stated that shortly after the explosion, he was informed by another

FBI agent that Plaintiffs "were the subjects of an FBI investigation in the terrorist field." Plaintiffs' Ex. 11­a at 3. l SA Reikes also briefed the Oakland Police officers about the destruction of power lines in Arizona and Santa Cruz. Plaintiffs' Exs. 13, 19 at 45­49. SAIC Held testified that when he asked his subordinate agents why the FBI was involved in investigating the explosion in Ms. Bari's car, agents told him that there was some connection with the Santa Cruz case and that there might be information that someone was bringing a bomb to Santa Cruz. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. A at 18­19, 21, 28­33. SA Sena claims, however, that by early May, 1990, he had concluded that Earth First! was not responsible for the destruction of power poles in Santa Cruz, for which a group calling itself the "Earth Night Action Group" had claimed responsibility. Plaintiffs' Exs. 13, 16­d at 85­87

III. THE SECOND SEARCH WARRANT

The Municipal Court of the Oakland­Piedmont Judicial District issued a second search warrant for Ms. Bari's residence on July 6, 1990. Plaintiffs' Ex. 28. Sgt. Sitterud prepared the affidavit and included information from SA Williams.

A. Matching Tool Marks on Nails From Ms. Bari's Home and From the Bomb

Sgt. Sitterud's affidavit stated that SA Williams had previously testified in other cases as an expert in tool mark identification, a study that "is very similar to Firearms ballistics identification." Plaintiffs' EX. 28 at 3. However, SA Williams stated in his deposition that he had never before examined

nails to determine the process of their manufacture. Plaintiffs' Ex. 25­a (Williams Depo.) at 213. According to Sgt. Sitterud's affidavit, SA Williams and other agents studied the tool marks on the nails recovered from Ms. Bari's house pursuant to the first search warrant and on the nails from the bomb and found the marks to be "identical." Plaintiffs' Ex 28. SA Williams "told [Sgt. Sitterud] that this indicated that [the nails] were fabricated on the same machine." Id. The affidavit also states that SA Williams "further explained to [Sgt. Sitterud] that due to the nature of the fabrication of nails by machine that the machine tool marks change from 'batch to batch' and that he could now testify that the 'bomb fragmentation nails and the two identical nails from the box from Ms. Bari's residence "were manufactured by the same machine within a batch of two hundred to one thousand nails." Id.

In his deposition, however, SA Williams stated that although he could determine that the nails were made in the same "batch," the same run of nails produced before the gripper was changed or turned off and cooled, and on the same gripper, he could not determine how many nails were made in each batch. (Note 6) Plaintiffs' Ex. 25­a at 220, 222­24, 226­27, 231. He acknowledged that "mass

______________________
(Note 6) SA Williams explained that he looked at "gripper" marks on the nails made by an instrument that grips the nail as it is being cut from a spool of wire. Usually the nail would be gripped between two opposing jaws. Plaintiffs' Ex. 25­a at 213. As the machine was used, the gripping surface would wear down over a period of time and the marks made on the nails would change. Id. at 214, 217. SA Williams testified that the microscopic tool marks made during the manufacturing process are unique to each gripper. Id. at 214­16, 219.

quantities [of nails] are produced over a very short period of time " Id. at 221. He denied ever telling Sgt. Sitterud that he could identify the number of nails produced in a batch. He also stated that he could not tell how much time had elapsed between the manufacture of one nail and another. Id. at 220­22. Similarly, SA Williams' June, 14, 1990 report states that toolmarks on certain finishing nails were "identical and that " [i]t can therefore be concluded that these nails were fabricated on the same machine." Plaintiffs' Ex. 24 at 24. The excerpt of his report submitted by Plaintiffs makes no mention of the number of nails that could be made in a single batch.

B. Other Information from SA Williams

SA Williams told Sgt. Sitterud about two additional events that were mentioned in the affidavit: another pipebomb device that partially exploded near a lumber company office building in Cloverdale, California, on May 9, 1990, approximately two weeks before the explosion in Ms. Bari's car; and a typewritten letter that an anonymous person sent to Mike Geniella of the Santa Rosa Press­Democrat in Ukiah, California, on May 29, 1990. Plaintiffs' Exs. 22, 28. The writer of this letter, claiming to be "the Lord's Avenger and citing various biblical passages, stated that he or she built a bomb and placed it in Ms. Bari's car because Ms. Bari advocated abortion outside of a clinic. Plaintiffs' Ex. 22. The writer also claimed to have placed the bomb in Cloverdale "to bring Infamy down on Judi Bari" and gave detailed descriptions of both the Cloverdale bomb and the bomb that exploded in Ms. Bari's car. Id.

The writer claimed to have placed the bomb in Ms. Bari's car while Ms. Bari "was at the meeting with the loggers" but that the bomb did not explode until two days later. Id.

Sgt. Sitterud was already familiar with the Cloverdale bomb and the "Lord's Avenger" letter. Plaintiffs' Ex. 28. According to Sgt. Sitterud's affidavit, SA Williams believed that the person who wrote the "Lord's Avenger" letter knew how both bombs were built and may have built the bombs. Id. Sgt. Sitterud included this information in the affidavit to explain the need to search for "typewritten (sic) exemplars" in Ms. Bari's home.

Sgt. Sitterud stated that SA Williams' expertise assisted him in the investigation and, along with "other parts of [Sgt. Sitterud's] investigation," led Sgt. Sitterud to conclude that the bomb that exploded in Ms. Bari's car was fabricated on Ms. Bari's property. Id.

C. Incorporation of First Search Warrant Affidavit

Sgt. Sitterud also attached Sgt. Chenault's affidavit from the first warrant. Sgt. Sitterud did not correct Sgt. Chenault's reference to a "separate bag of nails', found in Ms. Bari's car that were allegedly "identical" to the nails taped to the bomb. He also did not mention that the "large hole in the rear seat floorboard immediately behind the driver's seat" mentioned in the first affidavit actually extended under the driver's seat, or that SA Williams had been able to place a model of the bomb "all the way under the [driver's] seat" of a comparison car and had concluded that the actual bomb was also under the driver's seat. Plaintiffs'

Ex. 34­e at 171­74; Plaintiffs' Ex. 25­a at 250­52. SA Williams had seen "where the end caps from the bomb came off and hit the side walls of the floor panel" of Ms. Bari's car and concluded that the bomb had "fit snug against the sides of the seat mounting" and was not sliding around the interior of the car. Plaintiffs' Ex. 34­e at 171­73. Sgt. Sitterud also did not mention that SA Williams had concluded that a blue cloth towel had likely been placed over the bomb as if used to "camouflage" the bomb. Plaintiffs' Ex. 24 at 23, Ex. 34e at 174. Sgt. Sitterud saw the interior of the car at the scene of the explosion, and he also met with SAs Williams, Doyle and Hemje on June 14, 1990, to examine Ms. Bari's car and the comparison car. Plaintiffs' EX. 10.

D. Justification for Second Search

Sgt. Sitterud reported in his affidavit that they had not searched the trailer house or shed on Ms. Bari's property during the first search because it appeared that they were under the control of Ms. Bari's "estranged husband," Mike Sweeney. According to Sgt. Sitterud, former Defendant Sgt. Steve Satterwhite of the Mendocino County Sheriff's Office told Sgt. Sitterud that Sgt. Satterwhite "personally" knew Ms. Bari and her "estranged husband," that both Ms. Bari and Mr. Sweeney lived "communaly [sic] " on the property, and that they were jointly building a redwood house on the property. Plaintiffs' Ex. 28 Ms. Bari contradicted these statements, claiming that at the time of the searches she was divorced from Mr. Sweeney, that although they lived on the same property they occupied different structures, and that Sgt.

Satterwhite did not know her "personally," although she had |contacted him about death threats that she had received and he had ignored her. Plaintiffs' Ex. 8­b (Bari Decl.) ¶ 3.

IV. ALLEGED CONSPIRACY TO DISRUPT PLAINTIFFS' ACTIVISM

Plaintiffs claim that Defendants attempted to disrupt Plaintiffs' activism on behalf of Earth First! and smear their l reputations by falsely accusing them of transporting the bomb that l exploded in Ms. Bari's car, maintaining a baseless investigation of l them as suspects rather than victims, and covering up the allegedly l false arrests and illegal searches. Plaintiffs claim that the FBI l was already investigating Earth First! before the explosion occurred. In a March 22, 1991 response to an inquiry from Rep. Don Edwards, FBI SSA Horace Mewborn stated that the San Francisco office knew that Mr. Cherney had been arrested in connection with a non­violent Earth First! demonstration at the Golden Gate Bridge but had no information on Ms. Bari. Plaintiffs' Ex. 32­c. SSA Mewborn also stated that the FBI had not been investigating Earth First! before the explosion. Id.; see also Plaintiffs' Ex. 32­g (December 10, 1991 FBI Congressional Affairs letter to Rep. Frank Riggs claiming no prior investigation of Earth First!, Ms. Bari or Mr. Cherney). Similarly SA Reikes denied in his deposition that he had heard of Ms. Bari before the explosion, Plaintiffs' Ex. 34­f at 29, and SA Sena testified in his deposition that by early May, 1990, he did not suspect Earth First! of being involved in the destruction of power poles in Santa Cruz. Nonetheless, an FBI teletype issued the day after the explosion stated that "Bari and

Cherney were already considered potential suspects" in the Earth Night Action Group case in Santa Cruz, Plaintiffs' Ex. 11­b, and another internal FBI memo issued that day stated that SA Don Sachtleben advised that members of Earth First! "are suspected as being responsible for the sabotage of power lines in Northern California." Plaintiffs' Ex. 11­c. Furthermore, in a previous investigation code­named "Thermcon," Earth First! members had been investigated in connection with the destruction of power lines in Arizona.

Plaintiffs claim that Defendants failed to investigate leads that suggested that persons other than Plaintiffs placed the bomb in Ms. Bari's car. For example, Plaintiffs claim that SAs Hemje and Buck never sent some of the evidence to the crime laboratory in Washington D.C., including originals of letters containing threats against Ms. Bari that SA Buck obtained from MS. Bari's lawyer, Susan Jordan, on July 31, 1990. Plaintiffs' Ex. 26­f. Plaintiffs also claim that SA Buck interviewed a woman who suggested that a man named David Cruzan had written press releases falsely attributed to Earth First! before the explosion, but that SA Buck failed to pursue these leads. Plaintiffs' Ex. 26­g. Finally Plaintiffs claim that nothing in the FBI's files shows any attempt to match a fingerprint taken from the "Lord's Avenger" letter with a fingerprint found on the Cloverdale bomb. Plaintiffs' Ex. 21­c.

Plaintiffs also claim that the FBI's internal documents contain false information about Earth First! For example, SA Buck wrote in a report that Humboldt County Sheriff's deputies told him that

certain Earth First! members, including Mr. Cherney (but not mentioning Ms. Bari) were part of "a core group capable of violence." Plaintiffs' Ex. 31­a. Det. Rodney Lester testified that he did not remember telling SA Buck that members of Earth First! were involved in violent activity and that he did not think Earth First! was violent. Ex. 31­c at 48­58. Lt. Gary Philip also testified that although he gave SA Buck names of people who belonged to various environmental groups, he never told SA Buck that the individuals were violent. Plaintiffs' Ex. 31­d at 18 30.

Plaintiffs claim that SA Conway wrote a memorandum stating that agents believed that the people responsible for the bomb in Ms. Bari's car, the Cloverdale bomb, and the destruction of power poles in Santa Cruz were also responsible for vandalizing a U.S. Army recruiting center in Sonoma. Plaintiffs' Ex. 11­j. Plaintiffs claim that there was no evidence to support this statement. Plaintiffs also claim that the FBI investigated phone records of Earth First! members and that a November 21, 1991 airtel that Plaintiffs claim was written by SA Conway still portrayed Plaintiffs as suspects rather than victims. The airtel mentions the Thermcon investigation, states that Earth First! applauded the downing of power lines in Santa Cruz, and also states that Ms. Bari and Mr. Cherney had distributed leaflets in the Santa Cruz area calling for environmentalists "to go out at night and take action for the earth." Plaintiffs' Ex. 33­c at 2.

Plaintiffs also claim that in a July 31, 1990 memorandum, SA Conway initiated an FBI search for what he termed Ms. Bari's

"hideout." Plaintiffs' EX. 30­c. Plaintiffs claim that Ms. Bari's residence at that time was not a secret and that she had simply rented a new residence after the explosion. A few days later, however, another threat directed at Ms. Bari was delivered to Ms. Bari's new landlord. Plaintiffs' Exs. 30­a at 195­96, 30­b.

V. SUMMARY OF ALLEGATIONS REGARDING INDIVIDUAL DEFENDANTS

Plaintiffs' Seventh Amended Complaint alleges four causes of action: section 1983 claims against Defendants Reikes, Doyle, Sena, Buck, Webb, Sims, Sitterud and Chenault for the violation of Plaintiffs' Fourth Amendment rights against unreasonable search and seizure; (Note 7) section 1983 claims against all Defendants, including the City of Oakland and the Oakland Police Department, for the violation of Plaintiffs, First Amendment rights, section 1983 claims against all individual Defendants for conspiracy to violate Plaintiffs' constitutional rights; and state tort law claims against the individual Oakland Defendants and the City of Oakland.

The Court denied with prejudice Plaintiffs' motion to reinstate an equal protection claim that was previously stricken. Dec. 16, 1996 Order at 10­13. In an order filed May 9, 1997, the Court also dismissed the claims against Defendant FBI Supervising Special Agent Horace Mewborn for lack of personal jurisdiction.

___________________

(Note 7) In their Seventh Amended Complaint, Plaintiffs had also alleged Fourth Amendment claims against Defendants Held, Appel and Hahn. Plaintiffs apparently are no longer pursuing Fourth Amendment claims against these Defendants. The Court therefore grants summary judgment in their favor on Plaintiffs' Fourth Amendment claims. Plaintiffs' First Amendment and conspiracy claims against these Defendants are discussed below.

A. Federal Defendants

1. SAIC Richard W. Held

Defendant SAIC Held was the Special Agent in Charge of the San Francisco field office at the time of the investigation of the explosion. He retired from the FBI on August 1, 1993. SAIC Held previously moved for summary judgment. He argued that Plaintiffs have no evidence showing that he was aware Of Plaintiffs, arrest or that he was involved in the decision to search Ms. Bari's home; that he held any animus against Plaintiffs or environmental advocacy: or that he agreed to take any action against Plaintiffs. SAIC Held testified throughout his deposition that he did not remember the details of Plaintiffs' case, and that he did not keep abreast of all of the cases in the San Francisco office. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. A (Held Depo.) at 69. SAIC Held did not recall knowing about Earth First! or Plaintiffs before the explosion, although he testified that he may have known about the Thermcon investigation of Earth First! in Arizona. Id. at 14, 64, 66. He also testified that he did not know about the destruction of power poles in Santa Cruz or the "heavy hitters" tip until after the explosion. Id. at 33. Defendant SA John Reikes testified that he briefed SAIC Held shortly after the explosion. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. B (Reikes Depo.) at 231. Defendant SA Edward Appel testified that he was concerned that the arrests were premature and that SAIC Held shared this concern. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. C (Appel

Depo.) at 134-37. SAIC Held testified that his main concern was whether the FBI had jurisdiction over the case, or whether there was any "predication" for the FBI' s involvement. SAIC Held was told that there was some connection with the Santa Cruz case and that there might be information that someone was bringing a bomb to Santa Cruz. Plaintiffs' Opposition to Held' B Motion for Summary Judgment Ex. A at 18-19, 21, 28-33. SA Appel also believed that SAIC Held approved the use of an FBI helicopter for travel to conduct the first search of Ms. Bari's home. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. C at 64-65. SA Held, however, testified that he did not recall being asked about the helicopter and that someone else could have approved the use of the helicopter. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. A at 67.

After Plaintiffs' arrest and the initial search of Ms. Bari's home, in response to a newspaper article suggesting that environmentalists were being targeted by the FBI, SAIC Held wrote a letter in June, 1990, to the San Francisco Examiner denying that the FBI was attempting to disrupt legitimate activities. Id. Ex. A Attachment. He also apparently appeared on a television news broadcast on July 17, 1990, and stated, with regard to the FBI's investigation of Plaintiffs, "We've ruled no one in and we've ruled no one out. We have to go where the evidence goes." Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. E. He testified that he may have had ongoing conversations with SAs Reikes and Appel about the predicate for the FBI's investigation,

but he did not recall any specific conversations. Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex. A at 50.

2. SA Frank Doyle, Jr.

As discussed above, SA Doyle provided allegedly false information regarding the location of the bomb and the existence of identical nails that Sgt. Chenault used to obtain the first search warrant.

3. SA John Reikes

SA Reikes supervised an FBI squad in San Francisco that investigated terrorism and bombing cases. Sher Decl. in Support of Held's Motion for Summary Judgment Ex. 6 (Reikes Depo.) at 6. As noted above, SA Reikes allegedly told the Oakland Police before the first search warrant was obtained that Plaintiffs were terrorists. Plaintiffs' Ex. 34-d (Sitterud Depo.) at 36.

4. SA Philip Sena

SA Sena was the initial "case agent," or the agent principally responsible, for Plaintiffs' case. Sher Decl. in Support of Held's Motion for Summary Judgment Ex. 3 (Sena Depo.) at 9. He was replaced within approximately one week because of his assignment to investigate the destruction of power poles in Santa Cruz. Id. Defendant Oakland Police Lieutenant Michael Sims and Sgt. Chenault claim that before Sgt. Chenault drafted his affidavit for the first search warrant, SA Sena told them that SA Sena had received a tip from an informant stating that some "heavy hitters," or leaders, of Earth First! were traveling to Santa Cruz for some type of action. Plaintiffs' Ex. 16-a (Chenault Depo.) at 72 74i Ex. 16-b (Sims

Depo.) at 88-89 Lt. Sims and Sgt. Chenault testified that they did not know what type of action was planned. (Note 8) Id. Ex. 16-a at 81-82; Ex. 16-b at 89, 93-94. Sgt. Chenault said that the tip contributed to his belief that Plaintiffs were part of a violent terrorist group. Plaintiffs' Exs. 16-a at 84. In a report dated May 18, 1990, SA Sena stated that the informant told him that Earth First! and other activist groups had "banded together, thereby providing a larger number of extremists to draw from in order to commit crimes" and increasing "the possible targets for future I criminal acts." Plaintiffs' Ex. 18. The informant also allegedly told SA Sena that "a few 'heavy hitter' activists" would go to Santa Cruz at the end of May "for a major action." Id.

SA Sena also questioned Mr. Cherney at the hospital. Plaintiff's' Ex. 44.

5. SA Stockton Buck

SA Buck gathered physical evidence at the scene of the explosion and took an inventory of the evidence in the FBI's San Francisco office. Plaintiffs' Ex. 34-a (Buck Depo.) at 66, 96-100. Plaintiffs claim that even though an inventory of the evidence had been done in Oakland the day of the bombing, SA Buck took a number of days to do another inventory and delayed sending the evidence to the FBI's crime laboratory in Washington, D.C. See id. at 96-100,

____________________
(Note 8) SA Sena did not recall at his deposition whether the informant named Earth First!, but he stated that the informant explicitly referred to a bomb. Plaintiffs' Ex. 16-d (Sena Depo.) at 44-45, 86; see also Plaintiffs' Ex. 16-c (Reikes Depo.) at 47. 6 There is no indication in the record, however, that SA Sena told the Oakland Police that the "heavy hitters" were involved with a bomb.

143-44.

Plaintiffs also claim that SA Buck withheld certain evidence from the FBI crime laboratory in Washington, D.C., such as the bag of "identical" nails mentioned in Sgt. Chenault's affidavit, because Defendants' documents do not show that this bag was ever delivered to the crime lab. Plaintiffs' Ex. 26. SA Williams, however, did remember seeing at the crime lab at least one bag of nails that supposedly came from the trunk of Ms. Bari': car. Plaintiffs' Ex. 25-a at 247-48. Plaintiffs also claim that SA Buck did not send the back seat of Ms. Bari's car to the Crime lab, even though the driver's seat was sent to SA Williams in order to determine the position of the bomb in the car. Plaintiffs' Ex. 26-d at 2-3. Plaintiffs have submitted photographs showing that the back seat was relatively undamaged, except for a ripped seam, and argue that the condition of the back seat shows that the bomb was hidden under the driver's seat rather than placed on the rear floor board behind the seat.

SA Buck also found nails in Ms. Bari's car at the crime scene and brought them to SA Doyle. First Sher Decl. Ex. 2 (Doyle Depo.) at 192-96.

6. SA Patrick J. Webb

SA Webb was a senior terrorist squad agent who inspected Ms. Bari's car briefly at the scene of the explosion and also at the Oakland Police Department's yard. Plaintiffs' Ex. 47 (Webb Depo.) at 28-30. He also collected evidence at the scene of the explosion. Fourth Sher Decl. EX. (Webb Depo.) at 44-45. He

concluded that the location of the bomb was on the floorboard directly in front of the back seat. Plaintiffs' Ex. 47 at 29. He was present at the briefing at the Oakland Police Department the evening of the explosion but did not participate in drafting the affidavit for the first search warrant. Fourth Sher Decl. Ex. at 46-48. He was aware of the "Thermcon" investigation of Earth First! members in Arizona. Id. at 50.

7. SA Walter Hemje

SA Hemje succeeded SA Sena as the case agent responsible for Plaintiffs' case after SA Sena. Third Sher Decl. Ex. C (Hemje Depo.) at 10. He was not in San Francisco when the explosion occurred and did not work on the case before he became the case agent. Id. at 11. Plaintiffs claim that he was assigned outside of the FBI terrorist squad at the end of 1990.

8. SA John Conway

SA Conway participated in the search of Mr. Cherney's residence and became the case agent in the investigation after SA Hemje. Third Sher Decl. Ex. B (Conway Depo.) at 11-13. His participation in the investigation of and alleged conspiracy against Plaintiffs is discussed above.

9. SA Timothy McKinley

On the day of the explosion, SA McKinley heard a report of the incident on the radio and went to the scene. He observed "a large hole . . . blown through the floor of the vehicle approximately under and to the rear of the driver's seat. A similar large hole was visible through the driver's seat." Plaintiffs' Ex. 11-a (FBI

report prepared by McKinley) at 1. He spoke with Sgt. Chenault, who advised him that Plaintiffs were members of Earth First!. SA McKinley stated in his report that he was aware that Earth First! was "aggressively involved with efforts to control or restrict logging" and "that some news reports had linked the group to the placing of large nails or 'spikes' in timber to prevent its use as lumber." Id_ at 2. He asked other FBI agents to conduct record checks on Plaintiffs and accompanied Oakland police officers to search Mr. Kemnitzer's home. Id. at 3. When he returned to the scene of the explosion, he was informed by SA George that Plaintiffs "were the subjects of a FBI investigation in the terrorist field." IC. He spent the rest of the afternoon gathering blast debris. Id. at 3-4.

10. SA Edward S. Appel

SA Appel was the Assistant Special Agent in Charge of the San Francisco Office. Plaintiffs allege that he failed to investigate the similarity between a letter sent to the police in Ukiah by an informant, making negative allegations about Ms. Bari, and a threatening letter sent to Ms. Bari before the bombing, even though a reporter gave him copies of these letters. Plaintiffs' Exs. 35a, 35-b, 35-c, 35-e at 236-43.

B. Oakland Defendants

1. Capt. James Hahn

Defendants have moved to dismiss the complaint against Capt. Hahn. Capt. Hahn was on vacation when the explosion occurred and testified that after he returned, he was not involved in and did

not "micromanage" the investigation of Plaintiffs. Rodrigue Decl. Ex. 1 (Hahn Depo.) at 5, 17, 38.

2. Lt. C. Michael Sims

As discussed above, Lt. Sims was heavily involved in the decision to arrest Plaintiffs.

3. Sgt. Michael Sitterud

As discussed above, Sgt. Sitterud was heavily involved in the investigation of Plaintiffs and was the affiant for the second search warrant application.

4. Sgt. Robert Chenault

As discussed above, Sgt. Chenault was heavily involved in the investigation of Plaintiffs and was the affiant for the first search warrant application.

5. Detective Ramon Paniagua

Plaintiffs have conceded that they cannot sustain their evidentiary burden as to Det. Paniagua and have asked to dismiss the claims against him. Motion at 5 n.8.

DISCUSSION

I. PLAINTIFFS' MOTION TO SUBSTITUTE EXECUTOR OF MS. BARI'S ESTATE AS PLAINTIFF

Ms. Bari died of cancer on March 2, 1997. At the hearing on August 1, 1997, Plaintiffs filed a motion pursuant to Federal Rule of Civil Procedure 25(a)(1) to substitute Darlene Comingore, executor of Ms. Bari's estate, as Plaintiff in this action. Defendants did not object to this substitution at the hearing. The Court therefore grants Plaintiffs' motion. In a related matter, the Court Sua Sponte orders that the short

caption of this case be changed to "Bari et al. v. Doyle et al." In response to the Federal Defendants' motion to change the caption of this case, the Court ordered on January 6, 1997, that the short caption of the name of the case be changed from "Bari v. Held" to "Bari v. United States." The Federal Defendants stated in their motion that "for caption purposes, th[e] change should highlight the plaintiffs' claims as against either the United States or the City of Oakland." Federal Defendants' Motion For Leave to File a Motion for Reconsideration, filed December 31, 1996, at 3. However, the United States was not named as a Defendant in Plaintiffs' Seventh Amended Complaint, and there are no claims against the United States, only claims against individual FBI agents. Because summary judgment is being entered in favor of SAIC Held, SA Doyle is the first named remaining Defendant in Plaintiffs' Seventh Amended Complaint.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. 1. 56; Cel-tex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Insurance Co. of North America, 815 E.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other

evidentiary material. Celotex, 477 U.S. at 324; Rosenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident and Indem. Con, 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); see also Bhan v. NME Hospitals. Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 E.2d at

1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 O.S. at 323.

In their "Memorandum re: Briefing Schedule," filed April 14, 1997, Plaintiffs argued that their motion is authorized under Federal Rule of Civil Procedure 56(a), which states: "A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." Defendants argue that Plaintiffs are not seeking summary judgment on their claims but rather are seeking an order that Defendants are not entitled to interlocutory appellate review on issues of qualified immunity. Defendants argue that Plaintiffs have no right to compel Defendant to assert immunity at this time. They argue that Plaintiffs may only move for summary judgment on an affirmative claim against a Defendant, and then it is the option of the Defendant to assert either immunity or some other grounds for opposition, such as the fact that a genuine issue of material fact as to Plaintiffs' affirmative claim defeats Plaintiffs' motion.

Defendants cite no authority for their interpretation of Rule 56(a) that would preclude Plaintiffs from moving for summary judgment on an affirmative defense. At least one court in this district has considered a plaintiff's motion on the defendants'

affirmative defense without ruling on the plaintiff's affirmative claim, although the court did not address the issue of whether the motion was proper under Rule 56(a). The United States v. Lee, No. C 94-20261 RMW(EAI), 1995 WL 325972 at *4 (N.D. Cal. May 24, 1995)(Whyte, J.) (granting plaintiff's motion for partial summary judgment on defendants' affirmative defense of laches, plaintiff alleged breach of contract). Although the Court has not found any published case in the Ninth Circuit in which the plaintiffs moved for summary judgment on the affirmative defense of qualified immunity, Rule 56(a) permits a plaintiff to move for summary judgment on "any part" of a claim. The Court concludes that Plaintiffs are entitled to move for partial summary judgment on their affirmative claims by eliminating certain legal issues, such as an affirmative defense asserted by Defendants. This furthers the purpose of Rule 56 by summarily adjudicating discrete theories of liability, focusing the issues to be litigated, expediting adjudication of this action and thus conserving judicial resources. See Ajir v. Exxon Corp., No. C 93-20830 RMW (PVT), 1995 WL 261411 9 at *4 (N.D. Cal. May 2, 1995) (noting split of authority but nonetheless allowing motion for partial summary judgment on less than an entire legal claim).

III. PLAINTIFFS' FOURTH AMENDMENT CLAIMS

A. Plaintiffs' Arrests

1. Legal Standard for Probable Cause and Qualified Immunity

It is the plaintiff's burden on a section 1983 claim to establish that a constitutional violation has occurred. To succeed

on their Fourth Amendment claims, Plaintiffs must show that the searches and arrests were conducted without probable cause. Police Officers may lawfully arrest a person if they have probable cause to do so. Beck v. Ohio, 379 U.S. 89, 91, 96 (1964). Probable cause exists if "'at the moment the arrest was made . . . the facts and circumstances within the [officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing"' that the arrestee had committed a crime. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck, 379 U.S. at 91). "Probable cause requires 'a probability or substantial chance of criminal activity.'" Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989) (quoting Illinois v. Gates, 462 U S. 213, 243, n . 13 (1983)). "Mere suspicion, common rumor, or even strong reason to suspect are not enough" for probable cause. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). "There must be some objective evidence which would allow a reasonable officer to deduce that a particular individual has committed or is in the process of committing a criminal offense." Id. at 1008-09 ("unknown possibility" that jewelry was stolen is too tenuous and does not establish probable cause; this was "merely suspicion"). "Probable cause is lacking if the circumstances relied on are 'susceptible to a variety of credible interpretations not necessarily compatible with nefarious activities.'" Gasho v. United States, 39 E.3d 1420, 1432 (9th Cir. 1994) (citation omitted), cert. denied, 115 S. Ct. 2582 (1995). Thus, in Beck, the Supreme Court found that where a

police officer knew only that the arrestee had a criminal record of gambling and that an informant had given some information about the arrestee that was not clearly explicated in the record, there was no probable cause to justify an arrest for violation of anti­gambling laws. 379 U. S. at 96­97. " [W] here the facts or circumstances surrounding an individual's arrest axe disputed . . . the existence of probable cause becomes a question of fact for the jury." Borunda v. Richmond, 885 E.2d 1384, 1391 (9th Cir. 1988) .

However, "'government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Branch v. Tunnell, 937 F.2d 1382, 1385 (9th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S 800, 818 (1982)). Thus, even if officers were mistaken in their belief that probable cause to arrest existed, they are immune from suit if their mistake was reasonable in light of clearly established law and the information that they possessed at the time of the arrest. Hunter, 502 U.S. at 227; see also Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442­43 (9th Cir. 1991) (court need not reach question of probable cause where officers are entitled to qualified immunity).

2. The Existence of Qualified Immunity Is a Question for the Court, Absent Factual Disputes _

The qualified immunity standard requires a two­part inquiry: whether the law governing the defendant's conduct was clearly established and whether under that law, a reasonable officer could have believed that the conduct was lawful. Act Up!/Portland v.

Bagley, 988 F.2d 868, 871 (9th Cir. 1993). The question of whether a reasonable officer could have believed probable cause existed to justify a search or an arrest is an essentially legal question that should be determined by the court at the earliest possible point in the litigation. Id. at 873. "Where the underlying facts are undisputed, a district court must determine the issue on motion for summary judgment." Id.

The threshold question of whether the governing law was clearly established is a question of law to be decided by the court. Id. It is the plaintiff's burden to show this. Gasho, 39 F.3d at 1438. The parties here do not dispute that Plaintiffs had a clearly established right to be free from unreasonable searches and seizures not supported by probable cause. See id.

Once a plaintiff makes the showing of a clearly established constitutional right, the burden shifts to the defendant to show that a reasonable officer could have believed that he was not violating that right. Id. The question of whether the facts alleged could support a reasonable belief in the existence of probable cause is also a question of law to be determined by the court. However, disputed issues of material fact may prevent the Court from determining qualified immunity on summary judgment. Act Up!, 988 F.2d at 873. "[F]actual issues that may preclude a determination of qualified immunity on summary judgment fall into two categories" disputes as to what facts and circumstances were within the defendant's knowledge, and disputes as to what the defendant and plaintiff did or failed to do. Id. However, "the

determination whether those facts support an objective belief that probable cause . . . existed is ordinarily a question for the court." Id.

The Ninth Circuit noted in Act Up! that if the undisputed facts favor the plaintiff, "summary judgment for the plaintiff on the merits may be appropriate." Id. However, a mere denial of a defendant's motion for summary judgment on the question of qualified immunity does not destroy the defense. Thompson v. Mahre, 110 F.3d 716, 720 (9th Cir.·1997). Only the grant of summary judgment withdraws the issue from trial.

3. Analysis

At the time that the Oakland Police arrested Ms. Bari, just hours after the explosion, Sgt. Sitterud and Sgt. Chenault knew that she was an Earth First! activist who claimed to have been the target of death threats and the victim of a bomb planted in her car. They had also been told, apparently by SA Doyle, that the most likely site of the bomb was behind Ms. Bari's seat. Plaintiffs' Ex. 10. There is a question of fact, however, whether SA Doyle had told Sgts. Sitterud and Chenault that his opinion was tentative and depended on seeing a comparison car and getting the results from laboratory tests. It is likewise not clear if Sgts. Sitterud and Chenault believed at this time that a bag of nails in Ms. Bari's car matched the nails taped to the bomb. According to Sgt. Sitterud's chronology, at the time that Ms. Bari was placed under arrest, Sgts. Sitterud and Chenault were still interviewing Ms. Marr and Mr. Kemnitzer. No search of Ms. Bari's home had been

made yet, nor had the FBI briefing taken place, and apparently no attempt had been made to investigate Ms. Bari's claims that she had been the target of death threats.

Defendants argue that the apparent location of the bomb on the floorboard behind Ms. Bari's seat made it likely that she would have seen the bomb when she loaded her car. They apparently did not consider the possibility, however, that the bomb may have been hidden under the driver's seat or under other items in the car. Ms. Bari stated in her declaration that on the day of the explosion, she had a large bag behind her seat on the floorboard, and that she regularly carried a bag in that location for depositing trash while she was driving. Plaintiffs' Ex. 8­b. She also claims that a photograph taken at the bomb scene showing a large mass of material on the rear floorboard of her car filling up the area between driver's seat and back seat demonstrates that this bag was indeed present when the bomb exploded. Plaintiffs' 7­6. Furthermore, SA Williams also found torn and burned pieces of a blue towel in the back seat and embedded in the base of the driver's seat. Plaintiffs' Ex. 34­e at 174­75. SA Williams believed that this towel covered the bomb.

Defendants also argue in their briefs that it was unusual for a bomber to place a bomb inside the passenger compartment of the intended victim's car, rather than in the engine compartment or on the underside of the vehicle. First Sher Decl. Ex. 7 (Hanson Depo.) at 12­13. However, there is no evidence that Sgt. Sitterud, Sgt. Chenault or Lt. Sims had or considered this information at the

time of the arrest. Nor is there any evidence that they investigated the possibility that someone other than Plaintiffs had access to Ms. Bari's car before the explosion.

The report of Ms. Bari's arrest notes that at the hospital, she identified herself as an Earth First! activist and claimed to have been bombed. Plaintiffs' Ex. 3­a. However, this statement does not contribute to probable cause to believe that Ms. Bari was transporting a bomb. As Ms. Bari informed the police at the hospital, she had received numerous death threats, so it would have been reasonable for her to have suspected that the explosion in her car was not an accident.

Finally, it is not clear from the record how much the Oakland police knew about Earth First!'s reputation before they arrested Ms. Bari. However, the mere fact that Ms. Bari was a member of a group that was rumored to be violent and engaged in sabotage would not have been enough for police to suspect that she was carrying a bomb. See United States v. Brown, 951 F.2d 999, 1003 (9th Cir. 1991) (affidavits showing only that two police officers belonged to a narcotics unit under investigation failed to establish probable cause to believe that the two officers were part of conspiracy); United States v. Rubio, 727 F.2d 786, 792­93 (9th Cir. 1983) (search warrants lack probable cause where no nexus exists between indicia of association with Hell's Angels Motorcycle Club and alleged RICO criminal activity). Defendants have not shown any evidence that Ms. Bari herself, as opposed to her group, had a reputation for violent activity. On the contrary, in interviews

conducted after or while Ms. Bari was being arrested, Ms. Marr and Mr. Kemnitzer told Sgts. Sitterud and Chenault that Ms. Bari and Mr. Cherney were not violent. Additionally, Defendants may not bolster their suspicion of Ms. Bari with evidence that may have incriminated Mr. Cherney, but was never tied to Ms. Bari, i.e. his alleged statement that someone had thrown a bomb at them and the "road spiking kit" found in his van.

Considering the totality of the circumstances, the Court finds that the disputed facts regarding what SA Doyle, Sgts. Sitterud and Chenault and Lt. Sims knew with regard to the location of the bomb and the match of the nails are material to determining whether Defendants Sitterud, Chenault and Sims rushed without probable cause to their judgment that Ms. Bari was a perpetrator rather than a victim and whether SA Doyle contributed misleading information to the Oakland Defendants. Should the trier of fact resolve these disputes in favor of Plaintiffs, the evidence that the police had at the time would be consistent with Ms. Bari's insistence that she was the victim of a bomb planted by another person and therefore would not constitute probable cause. See Gasho 39 F. 3d at 1432 (circumstances "'susceptible to a variety of credible interpretations not necessarily compatible with nefarious activities'" do not constitute probable cause).

Similarly, there are disputed facts material to whether the police had probable cause to arrest Mr. Cherney the morning after the explosion. By the time Mr. Cherney was arrested, the FBI had briefed the Oakland Police Department about what they knew about

the bomb and Earth First!, and the Oakland Police had obtained the first search warrant. As will be discussed further below, there are material questions of fact as to what the Oakland Defendants knew and what the Federal Defendants told them. Furthermore, although officers had found some wires and what they believed to be "a road spiking kit to blow out lumber truck tires" in Mr. Cherney's van, nothing in the record shows that they had any physical evidence tying Mr. Cherney to the bomb in Ms. Bari's car. Plaintiffs' Ex. 10.

With respect to the first prong of the qualified immunity issue, there is no question that Plaintiffs had a well­established right not to be arrested without probable cause. The disputed material facts identified above, however, if resolved in Plaintiffs' favor, would show that a reasonable officer would not have believed that probable cause existed to arrest Plaintiffs in light of the facts known at the time. Some of the Federal Defendants testified that they were concerned about the Oakland police's hasty arrest. See Plaintiffs' Opposition to Held's Motion for Summary Judgment Ex, C (Appel Depo.) at 134­37. The Court cannot find as a matter of law that Defendants Sims, Sitterud, Chenault, Doyle and Reikes are entitled to qualified immunity for Plaintiffs' arrests. The Court denies the counter­motion of Defendants Sims, Sitterud, Chenault, Doyle, and Reikes with regard to their liability for the arrests of Plaintiffs.

Although SA Sena gave the Oakland police information about a tip he had received from an informant, Plaintiffs have not

demonstrated that he gave them false information. Although there is a dispute about whether the informant mentioned a bomb, Sgt. Chenault and Lt. Sims do not claim that SA Sena mentioned a bomb in relation to the "heavy hitters" tip. Plaintiffs have not shown that any of the other individual Defendants were involved in the arrest of Plaintiffs, either. SAs Buck and Webb only gathered, catalogued and packaged evidence. Plaintiffs have not shown that SAs Sena, Buck and Webb had a duty to stop the searches or arrests conducted by the Oakland police simply because they were present at the briefing before the first search warrant affidavit was drafted. Nor have Plaintiffs shown that SAIC Held or SA Appel were involved in Plaintiffs, arrest. The Court therefore summarily adjudicates that Defendants Held, Appel, Sena, Buck and Webb are not liable for Plaintiffs' arrests.

B. First Search

1. Legal Standards for Qualified Immunity from Claims of Unlawful Search

As discussed above, Plaintiffs claim that Defendants lacked probable cause to arrest them. With regard to the two searches of Ms. Bari's home, Plaintiffs claim that Defendants masked this lack of probable cause by making false statements in applying for the search warrants. In a civil rights case, if an officer submitted an affidavit containing statements that "'he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, . . . he cannot be said to have acted in an objectively reasonable manner, and the shield of

qualified immunity is lost.'" Hervey v. Estes, 65 F. 3d 784, 788 (9th Cir. 1995) (quoting Branch, 937 F.2d at 1387). To survive summary judgment, a plaintiff must establish both: (1) a substantial showing of a deliberate falsehood or reckless disregard, and (2) that without the dishonestly included or omitted information, the magistrate would not have issued the warrant. Id. at 789; see also Liston v. County of Riverside, 120 F.3d 965 (9th Cir. 1997) (no qualified immunity for officer who intentionally or recklessly omitted material information from search warrant affidavit); Lombardi v. City of El Cajon, 117 F.3d 1117, 1124, 1126­27 (9th Cir. 1997) (plaintiff need not show defendant had specific intent to deceive issuing court, but defendant is entitled to qualified immunity where facts were not plainly material when warrant application was made; defendant failed to disclose informants' prior relationships and dislike of plaintiff, but court found there were other indicia of reliability such that magistrate could have issued warrant even if told about informants' potential bias). The issue of materiality is reserved to the court Liston, 1997 WL 403988 at *7 (citing Hervey, 65 F.3d at 789). However, the question of whether the defendant deliberately or recklessly included the false statements is a factual determination for the trier of fact. Id. (citing Hervey, 65 F.3d at 791).

2. Plaintiffs Have Made a Substantial Showing of Defendants' Deliberate Falsehood or Reckless Disregard for the Truth

a. SA Doyle's Statements Regarding the Position of the Bomb in Ms. Bari's Car

After observing Ms. Bari's car at the scene of the bombing, SA

Doyle expressed to other officers working on the case his opinion that the bomb had been located behind Ms. Bari's seat on the rear floorboard. Plaintiffs' Ex. 37 at 116. Defendants argue that SA Doyle's conclusion regarding the position of the bomb was reasonable given the information he had at the time. Plaintiffs argue that the damage in the car, which SA Doyle had the opportunity to observe, showed that the bomb had been located under rather than behind Ms. Bari's seat. Plaintiffs cite the report of Oakland Police Department Evidence Technician Michelle Gribi, which states that she took photos of damage "under the drivers seat," Plaintiffs' Ex. 9 (emphasis added), and photographs of the damaged car. SA McKinley's May 25, 1990 report states that there was a hole "under and to the rear of the driver seat," as well as "through the driver's seat." Plaintiffs' Ex. 11­a. A report by an Alameda County Sheriff Deputy also stated, "It appeared that the device was underneath and possibly just to the rear of the drivers seat­" Third Sher Decl. Ex. A. ATE Agent James Flanigan testified that when he observed the car at the scene, he concluded that the bomb was "underneath the [driver's] seat, towards its rear," but that at least a portion of the bomb would have protruded behind the seat and been visible. First Sher Decl. Ex. 5 at 41.(Note 9)

Sgt. Chenault's affidavit stated that there was a large hole in

____________________
(Note 9) Plaintiffs also offer the testimony of Anthony Bouza, a former New York police officer, who testified that from his examination of photographs of the car, he concluded that the bomb exploded underneath Ms. Bari's seat. Plaintiffs' Ex. 36 at 48­49. However, as Defendants point out, Mr. Bouza is not trained in bombing matters and did not see the actual car. Id. at 49-50.

the rear floorboard of Ms. Bari's car and did not mention that the hole extended under Ms. Bari's seat. SA Doyle could not recall whether he had seen Ms. Bari's car at the scene of the explosion with the driver's seat removed, but he thought that he may have bent down to try to look at the hole under the seat. Thus, there is a material question as to whether the affidavit accurately stated Defendants' collective knowledge of the evidence at the time. The question of what Defendants knew about the size of the hole also precludes a determination of whether it was reasonable for SA Doyle to offer his opinion that the bomb was located behind the seat, as opposed to being at least partially under the seat. Taken in conjunction with other statements in the affidavit which were less than forthcoming, the statements about the damage to Ms. Bari's car and the location of the bomb raise a material question of fact as to whether Defendants recklessly disregarded the truth of the affidavit.

b. SA Doyle's Statements Identifying Nails in Ms. Bari's Car

Sgt. Chenault's affidavit states that SA Doyle told him that a "bag of nails . . . identical to the nails taped to the explosive device" was found in Ms. Bari's car. Plaintiffs' Ex. 7. SA Doyle did not correct this statement when he reviewed Sgt. Chenault's affidavit and made certain other corrections before it was submitted to the judge. At his deposition, however, SA Doyle could not remember examining any bags of nails. Plaintiffs have submitted evidence showing that the flat­headed nails in the two bags listed on the FBI inventory of crime scene evidence are not

identical or even similar to the finishing nails from the bomb. Although Plaintiffs' photographs are not taken to scale, they do show that the small, rounded heads of the finishing nails taken from the bomb are quite different from the flat heads of the nails from both of the bags. Therefore, the statement in the affidavit that found in the car was a bag of nails that were identical to the bomb nails is apparently false. There are questions of fact as to what SA Doyle told Sgt. Chenault about nails found at the crime scene. Plaintiffs have raised a question of fact as to whether Defendants recklessly or intentionally misrepresented the truth about the nails in the bags in Ms. Bari's car.

c. Earth First!'s Reputation for Violence

Sgt. Chenault's affidavit stated that Ms. Marr and Mr. Kemnitzer both acknowledged that Earth First! had a reputation for violence. Sgt. Chenault's affidavit does not reveal, however, that both Ms. Marr and Mr. Kemnitzer stated that they were personally convinced that Earth First! was not a violent organization. Ms. Marr stated in her deposition that she recalled telling Sgts. Sitterud and Chenault that Earth First!'s reputation did not concern her because she and Seeds of Peace had been working with Earth First! for two months before the bombing on a completely nonviolent action. Plaintiffs Ex. 39 at 44. Mr. Kemnitzer also claims that he told the police that he had discovered that Earth First!'s reputation was unfounded and that "particularly Judi and Darryl" were not violent. Plaintiffs' Ex. 40 at 36­38. The affidavit, however, simply states that "Bari and Cherney . . .

convinced Seeds of Peace to support the demonstration,' and that "Bari and Cherney said that the Redwood Summer would be strictly nonviolent." Plaintiffs' Ex. 7. Furthermore, both Ms. Marr and Mr. Kemnitzer also told Sgts. Sitterud and Chenault that Ms. Bari had received death threats. Plaintiffs' Ex. 39 at 43, Ex. 40 at 38­39. Ms. Bari herself had told officer Ludwig that she had received death threats. Plaintiffs' Ex. 3. The affidavit never mentions that Ms. Bari received death threats. As the Ninth Circuit has recognized, " [by] reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw." Lombardi, 117 F.3d at 1123 (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended by 769 E.2d 1410 (9th Cir. 1985). Plaintiffs have raised at least a question of fact as to whether Sgt. Chenault recklessly or intentionally misrepresented the interviews with Ms. Marr and Mr. Kemnitzer.

In addition, Sgt. Chenault stated in his affidavit that he believed that Plaintiffs were "members of a violent terrorist group." Plaintiffs' Ex. 7. Although he does not state in his affidavit the source of his beliefs, Sgt. Chenault testified that SA Sena's tip about the "heavy hitters" and other information he received from the FBI while he was preparing the affidavit led Sgt. Chenault to believe that Plaintiffs were part of a violent terrorist group. Plaintiffs' Ex. 16­a at 84, Exs l9 at 49­50. SA Reikes testified that he did not consider Earth First! to be a terrorist group, while Sgts. Chenault and Sitterud testified that SA Reikes referred to Earth First! as such a group. Although

Plaintiffs have not shown that SA Sena provided false information to the Oakland Police, Plaintiffs have raised a material question of fact as to what SA Reikes told the Oakland Police.

d. Mr. Cherney's Statement

Mr. Cherney claims in a sworn affidavit that he never stated that someone threw a bomb at the vehicle. In his affidavit, Sgt. Chenault specifically mentioned the inconsistency of Mr. Cherney's statement as incriminating evidence against Plaintiffs. There is no indication from interviews conducted by SA Daley that Mr. Cherney made this statement to the paramedics who arrived at the scene of the explosion. There is a question of fact as to whether Sgt. Chenault made a false statement in his affidavit about Mr. Cherney's comment.

3. Without the False Information, the Magistrate Would Not Have Issued the Warrant

The probable cause for the warrant as a whole, based on all of the information in the affidavit, must be evaluated in order to determine if the magistrate would have issued the first warrant but for the challenged information supplied by the individual Federal and Oakland Defendants.

The position of the bomb is significant in that the law enforcement agents apparently concluded that Ms. Bari and Mr. Cherney would have seen the bomb on the rear floorboard if another person had placed the bomb in the car. Thus, the agents and officers reasoned, Ms. Bari and Mr. Cherney must have placed the bomb on the rear floorboard of the car themselves, to transport the bomb elsewhere, and the bomb accidentally detonated during transit.

Even if this factor alone were not material, it must be considered in light of the other questionable statements made in the affidavit.

Similarly, Mr. Cherney's statement, were it the only questionable statement in the affidavit, might not be material. Even if made, his alleged statement that a bomb was "thrown" at Plaintiffs, although inconsistent with the physical evidence showing that the bomb was in the car at the time of the explosion, did not necessarily incriminate Mr. Cherney. Mr. Cherney must have been shocked and confused by the explosion and the statement could just as easily be interpreted to show that Mr. Cherney was ignorant of the source of the explosion. However, Sgt. Chenault emphasized in the affidavit that the statement was inconsistent with the evidence. Once again, when considered in the context of other questionable statements in the affidavit, Mr. Cherney's alleged statement would have contributed to a judge's finding of probable cause.

Misrepresentations about Earth First!'s reputation would be material. As discussed above, the Ninth Circuit has held that mere membership in a group that is not "wholly illegitimate" does not constitute probable cause to believe that the member is involved in criminal activity. Brown, 951 F.2d at 1002. Given what he did disclose about Earth First!'s reputation, Sgt. Chenault's alleged failure to mention Mr. Kemnitzer's statement that Plaintiffs in particular were not violent and Ms. Marr's and Mr. Kemnitzer's statements that Earth First! in reality was not violent is material

to the conclusion that Plaintiffs were transporting a bomb. The materiality of this omission is compounded by Sgt. Chenault's additional failure to mention that both Ms. Marr and Mr. Kemnitzer stated in their interviews that Ms. Bari had received death threats, information which would have supported Ms. Bari's innocence.

The alleged misstatement about the "identical" nails is material, because, as discussed in the context of Ms. Bari's arrest, the other evidence against Ms. Bari was not significant. The fact that nails "identical" to those attached to the bomb were found in a separate bag in Ms. Bari's vehicle would link Ms. Bari to the bomb's manufacture.

In short, Plaintiffs have raised material questions of fact as to whether Defendants Sims, Chenault, Sitterud, Doyle and Reikes deliberately or recklessly misrepresented facts in the first search warrant affidavit. In Brown, even though the Ninth Circuit found that there was no probable cause, it found that the officers nonetheless acted in good faith, based in part on the officers' "extensive investigation" of the organization. 951 F.2d at 1004 (citing United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir. 1986)). In contrast, Defendants here did not conduct an extensive investigation of Plaintiffs or Earth First! before issuing search warrants or arresting Plaintiffs. Therefore, the Court finds that the existence of disputed material facts prevents a determination of qualified immunity as a matter of law. The Court also denies Defendants' counter­motion for adjudication that Defendants Sims,

Chenault, Sitterud, Doyle and Reikes bear no liability for the first search warrant, because of the existence of material questions of fact. Plaintiffs have not made any showing that the other individual Defendants are liable for the first search warrant. The Court therefore summarily adjudicates that Defendants Held, Appel, Sena, Buck and Webb are not liable for the first search warrant.

C. Second Warrant

1. False information Contained in Affidavit

Sgt. Sitterud's affidavit for the second warrant included the information from SA Williams regarding his comparison of nails from the bomb with nails found at Ms. Bari's house during the first search. Sgt. Sitterud's statement about SA Williams' ability to determine the batch size is false. SA Williams denies telling Sgt. Sitterud that he could determine the batch size. Plaintiffs have therefore made a substantial showing and raised a material question of fact whether Sgt. Sitterud recklessly or intentionally misrepresented the size of the batch of nails.

Sgt. Sitterud's affidavit also incorporated, without any corrections, the first warrant and affidavit. Therefore, any questions of fact as to whether Defendants recklessly or intentionally misrepresented information in the first affidavit

also apply to the second warrant.(Note 10) Furthermore, Sgt. Sitterud apparently saw for himself the location of the hole in Ms. Bari's car and the layout of the comparison car, yet he failed to correct the statements in the first affidavit about the size of the hole and the likely location of the bomb in Ms. Bari's car. Plaintiffs have therefore raised a material question of fact as to whether Sgt. Sitterud recklessly or intentionally incorporated the first affidavit without correction.

2. Materiality

Sgt. Sitterud's alleged misrepresentation regarding the ability to determine the size of the batch of identical nails is material because it adds significance to SA Williams' findings that nails from the bomb and from Ms. Bari's house came from the same batch. Furthermore, if the first search warrant affidavit failed to establish probable cause to suspect Plaintiffs, and the nails obtained from the first search are not considered, the second warrant affidavit does not add anything to a finding of probable cause. The "Lord's Avenger" letter mentioned in the affidavit indicated that the writer of the letter had knowledge of the construction of the bomb that exploded in Ms. Bari car, but there was nothing else about the letter that indicated that Ms. Bari had

__________________
(Note 10) Ms. Bari also claims that the information about her relationship with her ex­husband from Sgt. Satterwhite is false. However, Sgt. Sitterud was entitled to rely on information he obtained from another law enforcement official that seemed reasonable. See Whiteley v. Warden, Wyoming State Pen., 401 U.S. 560, 568 (1971) (police officers called upon to aid in executing arrest are entitled to assume officers requesting aid have probable cause). There is no evidence in the record that Sgt. Satterwhite did not give the information in the affidavit to Sgt. Sitterud, and Sgt. Satterwhite is no longer a Defendant in this action.

written it. The Court concludes that the alleged misrepresentations in Sgt. Sitterud's affidavit are material.

Because there are questions of fact as to whether Lt. Sims, Sgts. Sitterud and Chenault and SAs Doyle and Reikes intentionally or recklessly misrepresented information in the first and second warrants, the Court rules that qualified immunity cannot be found as a matter of law and denies Defendants' counter­motion as to these Defendants. The Court summarily adjudicates that Defendants Held, Appel, Sena, Buck and Webb are not liable for the second search.

IV. PLAINTIFFS' FIRST AMENDMENT AND CONSPIRACY CLAIMS

A. Plaintiffs' Motion Is Not Premature

Defendants argue that Plaintiffs, motion as to the First Amendment and conspiracy issues is premature because the Court must first decide if there was probable cause for the searches and arrests. Defendants cite the Court's August 31, 1992 Order at 41:14­17 (Lynch, J.), which stated, "The Court also assumes that should plaintiffs not prevail on their fourth amendment claims, then [the first amendment] claim, which essentially stems from that fourth amendment claim, must fail also." Defendants also note that the Second Circuit has held that, "An individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism of the government." Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2c Cir. 1995) (quoting Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d

Cir. 1992)), cert. denied, 116 S. Ct. 1676 (1996). Because the Court has determined that there are material questions of fact as to whether Defendants reasonably believed they had probable cause to arrest Plaintiffs and search Ms. Bari's home, the question of whether Defendants are entitled to qualified immunity on Plaintiffs' First Amendment and conspiracy claims is ripe.

B. Plaintiffs' First Amendment Claims

Without citing any authority, Plaintiffs state in their motion that the elements of a First Amendment claim are: Plaintiffs' involvement in constitutionally protected activities; Defendants' actions under color of law which disrupted those protected activities; Defendants' lack of lawful justification for their actions or lack of reasonable belief that such a justification existed; Plaintiffs' loss of rights or other injury. Defendants argue that Plaintiffs cannot show at least two of these elements: that Defendants actually disrupted Plaintiffs' activities or that Plaintiffs suffered any loss or injury.

In Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994), the Ninth Circuit upheld a jury verdict imposing liability on a police officer for violating the plaintiff's rights to advocate growth limits in the city of Simi Valley. The defendant cited and warned the plaintiff on two occasions for interfering with traffic. ICL at 1465. The Ninth Circuit determined that the defendant violated the plaintiff's First Amendment rights "if by his actions the defendant deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the

defendant's] conduct." Id. (citing Mendocino Envtl. Ctr., 14 F.3d at 464). The court determined that there was evidence from which the jury could have reasonably inferred that the defendant was opposed to the plaintiff's political beliefs, that the plaintiff was not interfering with traffic, and that the plaintiff's political activity "was clearly inhibited by this pattern of police conduct: he stopped carrying a sign, his overall level of campaigning dropped, and other members of his group were intimidated Id. at 1469­70. The court concluded that this was "an adequate predicate to support liability" against the defendant. Id. at 1470. The Ninth Circuit did not explicitly hold, however, that actual inhibition of the plaintiff's speech was an element of a First Amendment claim under section 1983.

The Second Circuit also noted that a plaintiff could not demonstrate a viable First Amendment claim where, inter alia, he failed "to allege with sufficient particularity any actual 'chilling' of his speech." Singers 63 F.3d at 120 (noting plaintiff continued to publish newspaper despite alleged retaliatory prosecution). However, the court cited no authority for its conclusion and focused its discussion on the fact that there was probable cause to arrest the plaintiff. In contrast, the Seventh Circuit held that plaintiffs who bring a section 1983 claim alleging termination from a job for political reasons "need not prove an actual effect on their exercise of their rights to free belief and association; a tendency to chill such rights will suffice." Grossart v. Dinaso, 758 F.2d 1221, 1230 n.11 (7th Cir.

1985) (citing Branti v. Finkel, 445 U.S. 507, 517 (1980)); see also Crawford­El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc) (standard for injury cognizable under the First Amendment is "whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities",) (internal quotation marks omitted), petition for cert. granted, 117 S. Ct. 2451 (1997). The court in Crawford­El found that the small pecuniary loss that the plaintiff prisoner sustained because the defendant correctional officer allegedly misdelivered the plaintiff's property to retaliate against the plaintiff "might well deter a person of ordinary firmness in [the plaintiff's] position from speaking again." Id.

The Court finds that, absent controlling authority to the contrary, Plaintiffs need not show that their political advocacy was actually deterred in order to maintain their First Amendment claim. The Court adopts the test set forth in Crawford­El and concludes that the threat of being arrested and having one's home searched without probable cause amid much publicity would deter a person of ordinary firmness from engaging in political speech. The fact that Plaintiffs persevered in their advocacy should not preclude their claims. It would be anomalous to require a civil rights plaintiff to surrender his or her speech, that is, to do exactly what the defendant is alleged to have impermissibly intended, in order to bring a lawsuit, regardless of how egregious the defendant's conduct may be.

In any case, Plaintiffs have submitted evidence that their

advocacy was disrupted. Mr. Cherney states in a declaration that the charges against him distracted from and discredited his message about the environment. Plaintiffs' Ex. A­3 at 2. He claims that "a key colleague and vital partner" in Plaintiffs' work" dropped out completely when Plaintiffs were arrested. Id. at 3. He also claims that the local police became more "menacing" and sent more personnel to attend Plaintiffs' demonstrations after Plaintiffs were accused of being bombers, whereas the police "barely paid any attention" to the demonstrations before. Id.

Ms. Bari similarly testified in her deposition that the accusations against Plaintiffs "eroded" Plaintiffs' relationships with local people in the timber industry with whom Plaintiffs "had worked so hard to build understanding." Plaintiffs' Ex. A­4 at 186. She also claimed that the accusations distracted her from her community­building activities and the key organizers from planning demonstrations and forced them to defend Plaintiffs' legal battles instead. Id. at 187, 261.

Defendants also argue that Plaintiffs have failed to prove the central element of a First Amendment claim: an intent to disrupt or chill protected speech. In reviewing an earlier order in this case, the Ninth Circuit held, "Governmental 'action designed to retaliate against and chill political expression strikes at the heart of the First Amendment.'' Mendocino Envtl. Ctr., 14 F. 3d at 464 (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987)). "The defendant's intent is an element of the claim." Id.; see also Sloman, 21 F.3d.

at 1469 n.10. The Ninth Circuit found that Plaintiffs' complaint had plead factual allegations, sufficient to survive a motion to dismiss, regarding the Federal Defendants, intent to interfere with Plaintiffs' "First Amendment rights to demonstrate and communicate their message about the environment." 14 F.3d at 464. Specifically, Plaintiffs plead that before the explosion, the Federal Defendants pursued baseless investigations of Earth First!; that the Federal Defendants supplied false information contributing to Plaintiffs' arrest; and that the Federal Defendants had a politically­based animus against Plaintiffs and "were alert for opportunities to discredit and disrupt protected activities in protest of logging company operations." Id. Plaintiffs also alleged that the Federal Defendants' participation in the allegedly false arrests and unlawful searches was evidence of the Federal Defendants' animus. Id.

Defendants argue that the Ninth Circuit's decision in Magana v. Commonwealth of the Northern Mariana Islands, 107 F.3d 1436, 1447­48 (9th Cir. 1997), requires Plaintiffs to provide clear and convincing evidence that the decision to investigate Plaintiffs was based on hostility towards Plaintiffs' advocacy. (Note 11) However, the words "clear and convincing" do not appear anywhere in that decision. Rather, the Ninth Circuit stated that in cases where the

___________________
(Note 11) The United States Supreme Court has granted certiorari in Crawford­El to examine the questions of whether a plaintiff must prove a government official's unconstitutional intent by clear and convincing evidence and whether an official is entitled to qualified immunity if she asserts a legitimate justification for her actions, even if the evidence shows that the actual reason for the act was unconstitutional. 65 U.S.L.W. 3817 (June 17, 1997).

heightened pleading standard applies on a motion to dismiss, a court, on a motion for summary judgment, "must satisfy itself that there is sufficient 'direct or circumstantial evidence' of intent to create a genuine issue of fact for the jury, before it can deny summary judgment on the ground of immunity." Id. at 1447 (citation omitted). The Ninth Circuit found that the evidence in Magana was "highly circumstantial" but nevertheless sufficient to create a genuine issue of material fact. Id. at 1448.

Defendants also argue that Plaintiffs must show that others similarly situated were not investigated. However, Defendants cite no authority for the proposition that a First Amendment claim can only be made in the context of a selective prosecution claim. Plaintiffs need only show that Defendants intended to disrupt their speech.

The Court concludes that Plaintiffs have provided enough circumstantial evidence to support the allegations made in their complaint and raise a genuine question of fact as to whether Defendants Reikes, Doyle, Sena, Buck, Hemje and Conway intended to chill Plaintiffs' advocacy on behalf of Earth First!. Plaintiffs have submitted evidence that the FBI had conducted investigations of Earth First!, and perhaps of Mr. Cherney and Ms. Bari in particular, before the explosion, and that Defendants Reikes and Sena may have attempted to downplay or even misrepresent these prior investigations. Plaintiffs have also submitted evidence to suggest that Defendants Reikes and Doyle supplied false or misleading information to the Oakland Police that contributed to

Plaintiffs' arrest and the searches of Ms. Bari's home. Plaintiffs have also submitted evidence that SAs Buck, Hemje and Conway continued to investigate Plaintiffs based on false information after the Alameda County District Attorney's Office declined to file charges against Plaintiffs. A jury could infer from this evidence that Defendants Reikes, Doyle, Sena, Buck, Hemje and Conway acted out of an animus towards Plaintiffs' advocacy. The Court finds that, due to the disputed issues of material fact identified above, qualified immunity cannot be determined as a matter of law with respect to Defendants Reikes, Doyle, Sena, Buck, Hemje and Conway on Plaintiffs' First Amendment claim. The Court denies Defendants' counter­motion.

Plaintiffs have not provided any evidence, however, that Lt. Sims and Sgts. Sitterud and Chenault harbored a similar animus. There is no evidence that the Oakland Police had any pre­existing investigation of Earth First! in general or Plaintiffs in particular, and there is no evidence that any of the Oakland Defendants have attempted to engage in any coverup. Although the Oakland Police may have violated Plaintiffs' Fourth Amendment rights by engaging in unlawful arrests and searches, there is no evidence that this conduct was motivated by an intent to chill Plaintiffs, speech.

Plaintiffs also have not made any showing that SAs Webb, Held, Appel, and McKinley or Capt. Hahn participated in the investigation of Plaintiffs or harbored any animus towards them. Therefore, the Court denies Plaintiffs' motion and grants Defendants' motion as to

Defendants Sims, Sitterud, Chenault, Webb, Held, Appel, McKinley and Hahn.

C. Plaintiffs' Conspiracy Claim

To prove a section 1983 conspiracy claim, a plaintiff must show "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage." Hampton v. Hanrahan, 600 F.2d 600, 620­21 (7th Cir. 1979) (citation and internal quotation marks omitted), cert. granted in part and rev'd in part on other grounds, 446 U.S. 754 (1980). This agreement "need not be overt." Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). Indeed, "[a]bsent the testimony of a coconspirator, it is unlikely that direct evidence of a conspiratorial agreement will exist." Hampton, 600 E.2d at 621. However, a plaintiff may prove the existence of a conspiracy through circumstantial evidence. Id."[T] he alleged acts must be sufficient to raise the inference of mutual understanding. . . .[A]cts performed together by the members of a conspiracy are adequate when they are unlikely to have been undertaken without an agreement." Kunik, 946 F.2d at 1580. The existence of a conspiracy is "'essentially a factual issue that the jury, not the trial judge, should decide.'" Hampton, 600 F.2d at 621 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J., concurring)). In addition to proving a conspiracy, a plaintiff must also prove an actual deprivation of rights in order to establish a section 1983 claim. Id. at 622.

The Ninth Circuit previously held that Plaintiffs had sufficiently alleged a meeting of the minds among Defendants to chill Plaintiffs' right to engage in political advocacy. Mendocino Envtl. Ctr., 14 F.3d at 465. Specifically, Plaintiffs alleged that Defendants intended to portray Redwood Summer as a violent activity and Earth First! as dangerous group of extremists, thus deterring nonviolent activists from participating. Id. Plaintiffs also alleged that Defendants' overt acts in furtherance of this conspiracy included falsely arresting Plaintiffs, making statements to the press that Plaintiffs were involved in constructing and transporting a bomb, and fraudulently procuring search warrants. Id.

Although these allegations were sufficient to survive a motion to dismiss, Defendants argue that Plaintiffs have not presented any evidence of any animus or agreement among Defendants sufficient to survive a motion for summary judgment. With regard to some of the Defendants, the Court disagrees. As discussed above, Plaintiffs have submitted enough evidence to raise a material question of fact as to whether Defendants Doyle, Reikes, Sena, Hemje, Conway and Buck harbored any animus towards Plaintiffs. Considering that these Defendants worked together in the same squad on the same case, a jury could infer that they agreed to carry out their alleged objective of chilling Plaintiffs' speech through their various acts.

Plaintiffs have not provided any evidence, however, that the Oakland Police Department was part of this agreement. Lt. Sims and

Sgts. Sitterud and Chenault were present with several of the Federal Defendants at the scene of the explosion, the subsequent briefing at the Oakland Police Headquarters, or both. However, Plaintiffs have failed to show any intent on the part of the Oakland Defendants to chill Plaintiffs' speech, let alone an agreement with the Federal Defendants to carry out this objective.

Furthermore, as stated above, Plaintiffs also have not made any showing that SAs Webb, Held, Appel, and McKinley or Capt. Hahn participated in the investigation of Plaintiffs or harbored any animus towards them.

The Court finds that due to the disputed issues of material fact identified above, qualified immunity cannot be determined as a matter of law with respect to Defendants Reikes, Doyle, Sena, Hemje, Conway, and Buck as to Plaintiffs' conspiracy claim. The Court also denies Defendants' counter­motion. However, the Court denies Plaintiffs' motion and grants Defendants' counter­motion with respect to all of the other individual Defendants on this claim.

V. SAIC HELD'S_MOTION FOR SUMMARY JUDGMENT

As discussed above, Plaintiffs have not shown that SAIC Held was involved in the investigation of Plaintiffs, or intended to chill their speech. SAIC Held apparently did not know about the arrests and initial search of Ms. Bari's home until after these events had occurred. There is no evidence in the record that he ordered any agent to take any action with regard to Plaintiffs. Plaintiffs argue that his failure to supervise or control the

behavior of the other agents shows that he was involved in the conspiracy to chill Plaintiffs' speech, but there is no evidence that SAIC Held had any duty to supervise the day­to­day activities in any given investigations. His motion for summary judgment is therefore granted.

VI. PLAINTIFFS' MOTION TO ADD EQUAL PROTECTION CLAIM

On two previous occasions, Plaintiffs have been unable to state an equal protection claim. Plaintiffs' last motion to amend the complaint was dismissed with prejudice for failure to allege sufficient facts. Plaintiffs now argue that they did not allege new facts to avoid providing grounds for another appeal. However, Plaintiffs were allowed to allege, and did allege, other new facts in the proposed seventh amended complaint. See Dec. 16, 1996 Order at 4, 6­7. Because Plaintiffs have not presented in their present motion any new facts to warrant reconsideration, the Court will not entertain Plaintiffs' renewed motion to amend.

CONCLUSION

For the foregoing reasons, the Court rules as follows:

1) Plaintiffs' motion to substitute the executor of Ms. Bari's estate as a Plaintiff is granted.

2) With regard to the Fourth Amendment claims, there are material questions of fact which preclude a finding of qualified immunity in favor of Defendants Sims, Chenault, Sitterud, Doyle and Reikes. All other individual Defendants are entitled to summary judgment on Plaintiffs' Fourth Amendment claims.

3) With regard to the First Amendment and conspiracy claims,

there are material questions of fact as to whether Defendants Doyle, Reikes, Sena, Buck, Hemje and Conway intended to chill Plaintiffs' speech, which also preclude a finding of qualified immunity in their favor. All other individual Defendants are entitled to summary judgment on these claims.

4) Plaintiffs' motion to add the equal protection claim is denied.

5) The claims against Defendant Paniagua are dismissed from this action.

6) SAIC Held's motion for judgment in his favor is granted.

IT IS SO ORDERED.

Dated: OCT. 15 1997

CLAUDIA WILKEN

United States District Judge