Elle

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge LAY.

This is an appeal from an entry of summary judgment by the United States District Court for the District of Idaho in favor of seven local government officials against whom an Idaho businessman brought charges under the United States and Idaho Constitutions, 42 U.S.C. §§ 1983 , 1985(3), and various Idaho statutes. We affirm in part and reverse in part.

I. Background

Butler Trailer Manufacturing Company, Inc. (“Butler Trailer”) is a North Carolina corporation which operates manufacturing plants in North Carolina and Idaho. Cornelius “Neil” Butler, Jr. (“Butler”) lives in Franklin County, Idaho, and manages Butler Trailer’s plant there. This case arises from an October 3, 1996 search of Butler’s home and Butler Trailer’s plant in Franklin County.

At the time of the facts that gave rise to this case, Butler was a vocal critic of what *1019 he called police and governmental corruption in Franklin County. To that end, he had collected evidence and written articles alleging abuse of power by various government officials. Butler now claims that seven of these individuals used the power of their offices to…

concurring, and dissenting in part:

Perhaps my disagreement with the majority opinion on the issue of Elle’s qualified immunity is based more on semantics than substance. If this be true, so be it; however, I sense a more major concern. We all are bound by the opinions of the United States Supreme Court. The majority opinion finds that the issue of qualified immunity is intertwined with the alleged constitutional violation because there exists a factual question of intent as to whether Elle in instigating the issuance of the search warrant was guilty of reckless disregard of the truth. 1 However, I respectfully disagree that motive touches the defense of qualified immunity.

The issue of qualified immunity is one that should be passed upon as a matter of law and decided at this time by this court without further remand. See Jeffers v. Gomez, 267 F.3d 895, 906-8 (9th Cir.2001). 2 *1030 I am in complete agreement that as a matter of law, no probable cause existed for the issuance of the search warrant instigated by Eric Elle. The majority and I agree that the underlying constitutional issue does involve Elle’s state of mind. In this sense the question as to whether Elle acted in…