San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose
Opinion
Lead Opinion
Paez, J.
Opinion by Judge PAEZ. Opinion concurring in part and dissenting in part by Judge BEA.
In this civil rights action under 42 U.S.C. § 1983 , Defendants-Appellants, seven San Jose City Police Officers (“SJPOs”) 1 and Deputy Sheriff Linder-man, appeal from an order of the district court denying in part their motions for qualified immunity. This action arises out of the simultaneous execution of search warrants at the residences of members of the Hells Angels, and at the Hells Angels clubhouse on January 21, 1998. While executing one of the search warrants at the residence of plaintiffs Lori and Robert Vieira, the officers shot two of the Vieiras’ dogs. While searching plaintiff James Souza’s property, the officers shot and killed one of Souza’s dogs. During the course of the searches at all of the locations, the officers seized literally “truckloads” of personal property for the sole purpose of showing in a murder prosecution that the Hells Angels had common symbols, which in turn would qualify it as a criminal street gang and therefore support a sentencing enhancement under California Penal Code § 186.22 against the defendant in that case. In seizing this “indicia” evidence, the…
Concurrence in Part
Bea, J.
concurring in part and dissenting in part:
I agree with almost all of the majority opinion. For the officers here to have conducted these searches without any plan by which to control the dogs other than to shoot them is outrageous, especially given that they knew about the dogs well in advance. Clearly, a reasonable officer would have understood that his actions violated an established right of the plaintiffs. I must dissent, however, from part III.A of the majority’s opinion. I would reverse the district court’s order denying Deputy Sheriff Linderman qualified immunity.
Judge Ball issued several search warrants on January 20, 1998. The issue here is whether the evidence, taken in the light most favorable to the plaintiffs, establishes that Officer Linderman’s instructions to seize “all” evidence covered by the search warrant violated an established constitutional right of the plaintiffs, and whether it would be clear to a reasonable officer that *979 his conduct was unlawful in the situation Linderman confronted. See Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001); Lee v. Gregory, 363 F.3d 931, 934-36 (9th Cir.2004).
Here, the precise language of…
Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE SAN JOSE CHARTER OF THE
HELLS ANGELS MOTORCYCLE CLUB,
an unincorporated association;
JAMES ARNETT; MARNIE ARNETT;
ROBERT BRANCATO; LESLIE
BRANCATO; RONALD COOK; VICKI
BOZZI; FILLMORE CROSS; MARGARET
CROSS; TED DEMELLO; DEBORAH
VAN TASSEL; JAMES ELRITE; MOLLY
ELRITE; LARRY GORHAM; JEFFREY
PETTIGREW; JAMES SOUZA; ROBERT
VIEIRA; LORI VIEIRA; JAMES WELCH;
GREGORY WILKINS; DENISE WILKINS,
Plaintiffs-Appellees, No. 02-16329 v. D.C. No.
CV-99-20022-JF
CITY OF SAN JOSE, a municipal corporation, Defendant, and DECENA, Sgt.; CARNEY, Sgt.; MESSIER, Officer; NIEVES, Officer; MICHAEL FERNANDEZ, Police Officer, San Jose Police Officer; WILLIAM MANION, Police Officer, San Jose Police Officer; D. NEWMAN, Police Officer, San Jose Police Officer; KNOX, Police Officer, San Jose Police Officer, Defendants-Appellants.
3937 3938 SAN JOSE HELLS ANGELS v. SAN JOSE
THE SAN JOSE CHARTER OF THE
HELLS ANGELS MOTORCYCLE CLUB,
an unincorporated association;