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Preliminary Motion to Reinstate Suit Against FBI Supervisor and COINTELPRO Mastermind Richard W. HeldCourt rules require first asking the court's permission to file a full formal motion for reconsideration of the court's 1997 decision allowing Held and two other FBI supervisors out of the suit. Following is the text of the preliminary motion filed July 14, 2000.
Plaintiffs move this court for leave to file a motion for reconsideration of this court's order of October 15, 1997, granting summary judgment to FBI supervisory personnel Held, Webb and Appel. Plaintiffs' counsel certifies that he has conferred with Mr. Sher, counsel for said defendants, but has not been able to resolve the issue.
Plaintiffs are constrained by the page limitation of Local Rule 7-10(c) to merely touching on how and why a full motion for reconsideration would compel a conclusion that one or more of the three prongs of Local Rule 7-9(b) require this court to reverse its order as to the FBI supervisory defendants. Plaintiffs seek the opportunity to fully and thus convincingly brief how this court manifestly failed to consider and assign proper weight to facts presented by plaintiffs concerning the direct involvement of the exonerated defendants in the FBI's conspiracy against plaintiffs; how FBI administrative regulations imposed duties on Special Agent in Charge Held and supervisory agents Webb and Appel, the violation of which result in supervisory liability; and how this court exceeded limitations on grant of summary judgment and ignored the law of supervisory liability so as to mandate reversal on an ultimate appeal after trial unless the error is corrected by reconsideration.
This action against the United States, the City of Oakland and nine individual FBI agents and Oakland police officers alleges a conspiracy to violate the rights of plaintiffs to engage in protected political activity and to be free from illegal searches, seizures and arrest. The charges are the gravest that can be brought against law enforcement personnel and against the government in whose names they act. Plaintiffs do not allege harm from out-of-control "rogue cops," but a planned, deliberate acting in concert by line officers, and their superiors. By granting summary judgment to the FBI special agent in charge and to lesser supervisors, this court prevents plaintiffs from showing the concerted, animus driven, intentional nature of the complained of acts which the Ninth Circuit, in reversing summary judgment against the Oakland supervisory officers, has emphasized is the hallmark and evidentiary sine qua non of a conspiracy complaint. Political considerations by FBI supervisors, particularly someone like Held who has a congressionally proven history of acting similarly in the past, is the linchpin to proving the intentionality of defendants' acts and therefore liability for commission of constitutional torts. A conspiracy without a head or a brain is legally possible but from a jury perspective not compelling. By granting summary judgment to Held and the supervisory agents under him, this court has gutted the raison d'être of plaintiffs' case. Those in charge are necessary defendants.
MANIFEST FAILURE BY THE COURT TO CONSIDER MATERIAL FACTS CONCERNING HELD'S PERSONAL INVOLVEMENT
Held conducted a press conference in which he stated that no suspects had been ruled in or out. (Exhibit E to plaintiffs' opposition to Held's motion for summary judgment.) Although this court mentioned this in the opinion granting summary judgment, the court failed to consider the all important context. Exhibit E shows that the news conference was held on the same day and in response to the announcement by Oakland that it was dropping charges against plaintiffs. The context shows both that Held was personally aware of the minutia of the investigation and his animus toward plaintiffs who were not being ruled out by him despite the lack of evidence against them.
Appel has testified that Held personally approved use of a helicopter to execute a search warrant against plaintiffs. (Exhibit C to plaintiffs' opposition to summary judgment motion, pp. 64-65.) Although there is evidence to challenge this assertion, we are governed by the summary judgment standard of evaluating the record in the light most favorable to plaintiffs. Thus, this court's statement that Held didn't know of the arrests and search until afterwards (order of October 15, 1997, 64:22-24) is manifestly incorrect. The court failed to consider the helicopter evidence as showing Held's direct knowledge and participation.
Supervising agents Reikes and Appel testified that they kept Held apprised of the investigation. (Order p. 23.) Agent Buck testified that they spread the entirety of the physical evidence on the table in Held's conference room. (Exhibit D, pp. 96-97, to plaintiffs' opposition.) Although the court considered some although not all of this evidence (Buck's testimony was not considered), it was mentioned not as evidence which the jury could accept as Held's personal involvement, but as disputed facts to be decided in favor of defendants. This is the time to correct such error.
Perhaps the most dramatic portions of the record not considered by the court relate to the evidence presented by plaintiffs of SAC Held's unprecedented effort to control and put a spin on the publicity concerning the bombing. This court's order did not consider (1) Held's August 14, 1990, teletype to FBI headquarters asking headquarters to act to stifle national press criticism of the FBI's role in the case which showed exquisitely detailed knowledge of the facts of the case (plaintiffs' opposition, p. 12); (2) testimony by Reikes, the supervisory special agent, that Held was continuously agitated by press inquiries concerning the case and that he told Reikes to do what Reikes could to stop the press criticism (plaintiffs' opposition, p. 13); (3) continual inquiries from headquarters to Held expressing concern about intense Congressional interest in the criticism leveled against the FBI concerning its handling of the bombing investigation (plaintiffs' opposition, p. 9 and Exhibit E); (4) the August 2, 1990, teletype from FBI headquarters to Held asking for weekly updates on the investigation because of the unprecedented publicity and headquarters' agitated follow-up of October 24, 1990, demanding the weekly summaries and admonishing FBI San Francisco for placing in the bombing file copies of threatening letters to Charles Hurwitz, the timber baron and antagonist of plaintiffs, and archly informing FBI San Francisco that "there does not appear to be a connection" between the two matters, showing that even FBI headquarters felt that FBI San Francisco was going beyond purview (Exhibit h, pp. 133-134 of plaintiffs' qualified immunity motion).
The significance of these matters of record not considered by the court is twofold. First, Held's blanket denials of involvement or knowledge not only should not have been weighed in this summary judgment motion, but are themselves not credible. Second, Held's concern with this massive public interest in the FBI's role in the bombing investigation is at the very least evidence not considered by this court of supervisory condoning of subordinates' violations which imposes liability under Johnson v. Duffy, 588 F.2d 740,.743-744 (9th Cir. 1978), is evidence of supervisory indifference which imposes liability under Slakan v. Porter, 737 F.2d 368, 373, (4th Cir. 1984) and Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); shows condoning or ratification of prohibited behavior which imposes liability under Larez v. City of Los Angeles, 946 F.2d 630, 646, 649 (9th Cir. 1991); and is comparable to the widespread media suggestions of misconduct which support an inference of supervisory notice under the holding of McClelland v. Facteau, 610 F.2d 693, 697-698 (10th Cir. 1979).
THIS COURT ERRED IN REQUIRING FACTUAL PROOF OF DUTY TO SUPERVISE AND IN WEIGHING DISPUTED EVIDENCE.
This court erred when it stated (Order, 65:2-4) that "... there is no evidence that SAIC Held had any duty to supervise the day-to-day activities in any given investigation." That duty is not factual but is imposed by law, either administratively or by judicial decision.
Administratively, the FBI's Manual of Investigative Operations and Procedures (MIOG) provides in Part I section 174-5 that investigations of "... a bombing ... which will be the subject of a major investigation ..." shall be "... under the personal supervision of the SAC and should cover all investigative steps to insure that evidence is preserved and logical investigation instituted immediately." (Emphasis added.) MIOG further mandates in Part I section 137-2(1) that "[t]he SAC ... is personally responsible ... for the establishment of informant coverage ..." and in section 137-2(2) that "Supervisory Special Agents are responsible for the development and operation of informants by the agents under their supervision." (Emphasis added.) Held admitted that information from the "heavy hitters" informant was the sole predicate for FBI involvement in the bombing investigation. (Held deposition at pp. 17-22, exhibit to plaintiffs' opposition to Held motion for summary judgment.)
Supervisory liability may be premised on a violation of duties imposed by regulations. (Johnson v. Duffy, supra, 588 F.2d at 744. Thus, FBI MIOG regulations mandated that the San Francisco SAC, Held, assume personal supervision of the bombing investigation and that he and his supervisors, Webb and Appel, are personally responsible for the informant's tip which focused suspicion on plaintiffs. Thus, the issue is not disputed facts of the personal involvement of supervisors, but a violation of an affirmative set of administration obligations by them.
Judicially, the case law cited in the previous section of this memorandum imposes supervisory liability when evidence is susceptible to an interpretation of supervisory indifference to prohibited behavior. The order granting summary judgment combined the triple vices of weighing disputed facts against plaintiffs, of ignoring the legally imposed duty to extract a supervisory head from the sand, and forgetting that evidence of involvement in a conspiracy must of necessity be indirect. The decision of the Court of Appeals reversing the grant of summary judgment to Oakland supervisors was based on two of these three points. (See Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999); "... [U]nlawful conspiracy is generally a factual issue ... so long as there is a possibility that the jury can infer ...." [192 F.3d at 1301 (emphasis added)]; "The possibility that other inferences could be drawn ... does not entitled them to summary judgment" [192 F.3d at 1303]; "Such an agreement need not be overt ...." [192 F.3d at 1301]; "Direct evidence ... will only rarely be available." [192 F.3d at 1302.].)
The teachings of last year's Court of Appeals decision mandate reconsideration.
This court should allow plaintiffs to formally and with sufficient room for documentation move for reconsideration of the order granting summary judgment to FBI supervisory personnel.
Dated: July 14, 2000
Respectfully submitted,
_____________________
Marvin Stender
Attorney for Plaintiffs