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Zacharia v. City of Madera

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 10, 2010

ISSA ZACHARIA, PLAINTIFF ,
v.
CITY OF MADERA, ET. AL., DEFENDANTS.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 75)

This case stems from the investigation of Plaintiff Issa Zacharia ("Zacharia") by Defendant Ignatius Chinn ("Chinn") for state criminal law firearms violations. In March 2007, Zacharia was acquitted in federal court of the charge of being a felon in possession of a firearm. Following his acquittal, Zacharia filed suit in this Court against numerous defendants. The only defendant left is Chinn. Zacharia alleges violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Chinn now moves for summary judgment. For the reasons that follow, Chinn's motion will be granted.

FACTUAL BACKGROUND*fn1

Chinn has been employed as an Investigator for the San Francisco Police Department since March 2008. DUMF 1. Chinn left his employment with the California Department of Justice (Cal-DOJ) in March 2008. DUMF 2. He was employed by the CalDOJ for 7 1/2 years and held the position of Special Agent Supervisor when he left Cal-DOJ. Id. Chinn was assigned to the Cal-DOJ Firearm Division (now Bureau) from approximately February 2000, until his departure in March 2008. DUMF 3. He was involved in at least 200 firearms investigations involving illegal transactions, illegal machine gun conversions, and assault weapons sales and possession violations. Id.

Zak's is a business owned and operated by Zacharia, in Madera, California. DUMF 5. Guns are sold at Zak's. See id. In 2002, Zacharia had a manager working for him named Andrea, who continues to work with him. DUMF 6.

In January 2002, Chinn learned that Zacharia was a gun dealer when he was asked to investigate Zacharia's involvement in drop shipping machine guns for purchase by the Madera Police Department. DUMF 7. On January 24, 2002, Chinn was informed by Commander Steve Frazier and Chief of Police Jerry Noblett, both of the Madera City Police Department, that Zacharia had a felony conviction in Arkansas that could not be confirmed, but was well known in literary circles and the press. DUMF 8. Chief Noblett stated they had tried to get a certified copy of Zacharia's conviction, but the Arkansas authorities had not complied with the request. Id. The purchase and sale of the machine guns did not materialize and the investigation was stopped. See DUMF 7. A memorandum from Chinn dated May 2002 stated that Madera County District Attorney Ernie LiCalsi and Cal-DOJ Deputy Attorney General Nancy Palmieri had informed Chinn that there was a conflict in the law regarding who could sell to law enforcement agencies and who had to obtain a Cal-DOJ permit prior to selling machine guns to law enforcement agencies. See Plaintiff's Ex. 1. The memo eventually concluded, "I request that this case be closed pending further information of [sic] evidence." Id.

In June 2002, Chinn conducted a further investigation into Zak's for possessing and selling unpermitted and unregistered assault weapons. DUMF 9.*fn2 On June 16, 2002, Chinn learned from Nathaniel Barrell (who is now deceased, see DUMF 14), an analyst with Cal-DOJ, that Barrell had received a phone call from a female named Andrea who identified herself as the sales manager for Zak's. DUMF 10.*fn3 Andrea purportedly called Barrell and told him that a police officer asked if Zak's could sell the officer an AR-15,*fn4 which is a legally restricted assault weapon that requires a gun dealer to have a special assault weapons permit in order to sell.

See DUMF's 11, 12.*fn5 Barrell informed Chinn that Zak's California firearm dealer number did not have the requisite permit to sell assault weapons. See DUMF 13; PRDUMF 13. In June 2000, Zacharia had applied for a state permit to allow him to sell assault weapons. See DUMF 15.

On June 21, 2002, Chinn conferred with Mike Small*fn6 of the Cal-DOJ Firearms Licensing and Permits Unit (FLPU). DUMF 16. Small told Chinn that Zacharia had applied for an assault weapons sales permit in 2000 (dangerous weapons permit). Id. Zacharia applied for the dangerous weapons permit so he could sell assault weapons. See DUMF 17; PRDUMF 17. Small reviewed the administrative file held by Cal-DOJ and confirmed that Zacharia submitted applications for Certificates of Eligibility ("COE") to Cal-DOJ to obtain a license as a firearms dealer in the State of California, and succeeded in obtaining the COE's.*fn7 DUMF 19. Having complied with the additional required licenses and permits, Zacharia became a licensed gun dealer in California. Id. Small's review of the administrative file indicated that Zacharia submitted an "Applicant/Business History for Dangerous Weapons Permit And/Or License" application in 2000, i.e. a dangerous weapons permit application, wherein he referenced obtaining an assault weapons sales permit.*fn8 DUMF 23. Zacharia did not complete the process to obtain the "dangerous weapons permit" that would have enabled him to obtain an assault weapons sales permit. Zacharia did not respond to a request for additional information and effectively abandoned the dangerous weapons permit application. Id. Specifically, Small told Chinn that during the dangerous weapons permit background investigation,*fn9 Cal-DOJ agents had found information that Zacharia had a felony conviction in Little Rock Arkansas, Pulsaski County.*fn10 DUMF 24. A request for confirmation of this conviction and a request for certification were made to the Pulaski County Criminal Clerks' office, but that office did not respond. Id. Small told Chinn that Zacharia was informed of the existence of a felony conviction, and that Zacharia had said he was aware that this information was expunged from his record. DUMF 25. Small informed Chinn that Zacharia was asked to produce these expunged documents before the permit process for the assault weapons could proceed. DUMF 26. Small informed Chinn that Zacharia never supplied the information and abandoned the dangerous weapons permit process, but continued to be a regular California licensed firearms dealer. Id.

Chinn's investigation into the lack of an assault weapons permit and the possession of unregistered assault weapons led to the issuance of search warrants in June 2002.*fn11 DUMF 28.

On or about June 21, 2002, Zacharia's place of business was searched for assault weapons, and approximately twenty-five (25) assault weapons were found. See DUMF 29. The search warrant of June 2002, and the discovered unpermitted and unregistered assault weapons, led to criminal charges against Zacharia in the Madera County Superior Court. See DUMF 30. These criminal charges were resolved in May 2008 when Zacharia pled no contest to misdemeanor counts under California Penal Code § 12280(b). DUMF 31.

While the June 2002 charges were pending, on June 6, 2006, Commander Steve Frazier of the Madera City Police Department told Chinn that he now had a certified copy of Zacharia's felony conviction from Pulaski County, Arkansas. DUMF 32.*fn12 On June 7, 2006, Chinn received certified copies of court records pertaining to the alleged Pulaski County felony conviction ("Pulaski Documents"). See DUMF 33. Zacharia had been charged with a felony for an alleged violation of Arkansas Statutes Annotated § 41-707, Criminal Conspiracy, in the matter State of Arkansas v. Issa Zacharia , Pulaski County Circuit Court, Case No. CR-832623 (hereinafter, "the Pulaski Crime"). See DUMF 34. Zacharia had pled guilty to a felony charge of conspiracy on December 7, 1984, in the Circuit Court of Pulaski County, Arkansas. See DUMF 35.*fn13 The Pulaski Documents indicate that the Pulaski County Circuit Court suspended Zacharia's sentence the same day, December 7, 1984. See Plaintiff's Ex. 8; Defendant's Ex. G.

Chinn provided a copy of the certified records of the Pulaski Crime to Cal-DOJ Deputy Attorney General Alison Merrilees*fn14 ("Merrilees") for her review.*fn15 DUMF 42. As part of Merrilees' duties, she provides legal advice to both sworn and non-sworn staff of the Bureau of Firearms regarding the interpretation of state and federal firearm laws. DUMF 44. Because of the variety of the statutory duties of the Bureau of Firearms relating to firearms, it is a routine part of Merrilees's job as the Bureau of Firearms' legal counsel to analyze whether a person who applies to purchase a firearm is eligible to do so under both state and federal law. DUMF 47. It is also a routine part of Merrilees's job to analyze whether a person selling firearms in California is properly licensed, whether a person who is licensed as a federal and state firearms "dealer" is acting within the scope of state and federal law, and whether any person who has a permit or license issued by the Bureau of Firearms is acting pursuant to the terms and conditions of the permit or license. Id. The sworn peace officers assigned to the Bureau of Firearms routinely consult with Merrilees when they have legal questions about state and federal law, and applications in their criminal investigations of the violation of state firearms laws. DUMF 48. Merrilees reviewed the copies of the certified records of the Pulaski Crime and informed Chinn that there were no expungements or pardons reflected in the records. DUMF 49. Merrilees recalls telling Chinn that she was not an expert on Arkansas law. DUMF 50.*fn16 She advised him that it would be prudent to check with such an expert about whether Arkansas law restored Zacharia's right to possess firearms in Arkansas. Id.

On June 7, 2006, Chinn contacted the Arkansas State Attorney General's Office by telephone and spoke with Kent G. Holt ("Holt"), who identified himself as an Assistant Attorney General. DUMF 51. Holt is an attorney licensed in the state of Arkansas and is an Assistant Attorney General with the Attorney General's Office in Arkansas.*fn17 DUMF 53. Chinn asked Holt to review Zacharia's Pulaski County court file to see if the felony conviction had been expunged, pardoned, or reduced. DUMF 52.*fn18 Chinn asked Holt to determine whether there was a finding of guilty or some sort of conviction based on the certified Pulaski County court file provided by Chinn, regarding the Pulaski Crime. DUMF 58.

Holt recognized the court records provided by Chinn, based on Holt's practice in the Circuit Court in Pulaski County, and the records seemed regular on their face in that they appeared to be what they were. DUMF 59. Holt went to the library and looked in the newspaper to see what some of the facts of the case were, because he noticed that in the court documents, one of the names of the defendants had been whited-out. DUMF 60. Holt examined the court documents, including the plea statement. DUMF 61. Based on Holt's experience and understanding, a plea statement is what a defendant fills out when they withdraw a plea of not guilty and enters a plea of guilty and there is some disposition of the case. Id. The plea statement in the court documents for the Zacharia matter indicated that Zacharia had entered a guilty plea to a conspiracy charge, with signatures appearing on the defendant's signature line and attorney's signature line. DUMF 62.*fn19 In reviewing the court documents in the Zacharia matter, there was no indication known to Holt that Zacharia's conviction had been expunged. DUMF 63. Holt determined from the documents that it appeared Zacharia had pleaded guilty and received a suspended imposition of sentence.*fn20 DUMF 64. Holt concluded that, absent any indication in the documentation provided to him, Zacharia had, under Arkansas law, the status of a felon. DUMF 65.

On or about June 12, 2006, Holt informed Chinn and Merrilees of his findings, determinations, and conclusion, that Zacharia's sentence was suspended but that his conviction was a felony that had not been reduced, and there were no indications that Zacharia's conviction had been expunged nor a governor's pardon entered. DUMF 66; Chinn Dec. ¶ 29; Holt Dec. ¶ 16; Merrilees Dec. ¶ 10. Holt had spoken to Merrilees and Chinn on the telephone. See Merrilees Dec. ¶ 10. Holt later provided Chinn with a letter confirming that the suspended sentence was still a felony. See DUMF 67; Holt Dec. ¶ 17. Specifically, the letter read, "The fax . . . regarding Issa Zacharia may clear up some of the questions you posed last week. The suspended sentence is just the sentence. To paraphrase Shakespeare, 'a felony, is a felony, is a felony.' Let me know if you need anything else . . . ." Plaintiff's Ex. 2.

Based on Chinn and Merrilees's discussion with Holt, the letter from Holt, Merrilees's review of Zacharia's criminal history in Chinn's investigative file, and Merrilees's knowledge of California law and the effect of an out-of-state conviction on a person's eligibility to lawfully possess firearms in California,*fn21 Merrilees informed Chinn that Zacharia had been convicted of a felony in Arkansas. DUMF 68.*fn22 Based on all of this information, Merrilees informed Chinn that Zacharia was ineligible for a COE issued by Cal-DOJ, and therefore ineligible to be a licensed firearms "dealer" in California. Id. Furthermore, Merrilees informed Chinn that Zacharia was prohibited from purchasing or even possessing firearms in California because he was "convicted of a felony under the laws of . . . the State of California, or any other state," and that doing so would be a felony in California. Id. In light of the information from Holt and Merrilees, and aware that Zacharia was a California gun dealer, Chinn initiated an investigation of Zacharia for violation of California gun licensing and sales laws. See DUMF 70.

Based upon earlier investigations regarding Zacharia's gun sales business, Chinn was aware Zacharia possessed weapons both for personal use and for sale, which would be prohibited if Zacharia was a convicted felon. DUMF 72. On June 13, 2006, Chinn confirmed Zacharia's Centralized Dealer Information and that he was still doing business under the name "Zak's" in Madera, California. See DUMF 74. Chinn confirmed that, since July 12, 1995, Zacharia was the sole licensee and operator of his licensed firearms sale location. See DUMF 75. Chinn confirmed gun sale activity that showed that from June 14, 2005 to June 8, 2006, Zacharia had sold one hundred and two (102) firearms. DUMF 76. A review of state databases indicated that Zacharia may have transferred six handguns from inventory to his personal possession and use, which is a violation of concealed weapon permit laws. See DUMF's 77-83. Chinn knew from serving the previous search warrant that Zacharia had the only key to the firearm storage room at Zak's, which suggested to Chinn that Zacharia had control over firearms and could constitute a felon in possession. See DUMF 84. Chinn also found that twelve handguns had been purchased by Zacharia after December 7, 1984 (the date Zacharia pled guilty in the Pulaski Crime). See DUMF 85. Chinn reviewed Zacharia's 2000 application for a dangerous weapons permit and saw that Zacharia had answered "no" to the question, "Have you ever been convicted, cited, or charged with an offense, including traffic violations and juvenile arrest?" See DUMF's 86-89.

Based on Chinn's investigation of Zacharia, Chinn sought a search warrant for evidence that Zacharia owned, possessed, or controlled firearms and for unlawfully possessed firearms, among other things, to be served at Zacharia's residence and at Zak's. See DUMF 91. On June 21, 2006, the Madera County Superior Court authorized and issued a search warrant to search the person of Zacharia, the premises of Zak's, and Zacharia's residence. DUMF 92. On June 21, 2006, Chinn participated in the execution of the search warrant at Zak's. DUMF 93. Zacharia was handcuffed, but not arrested. See id.; see also DUMF 94.

On September 14, 2006, following grand jury testimony from Chinn, an indictment was filed in the U.S. District Court, Eastern District of California, charging Zacharia with, among other things, a violation of 18 U.S.C. § 922(g)(1), commonly referred to as felon in possession of a firearm. DUMF 103. The indictment alleged that Zacharia was convicted on December 7, 1984, in the Circuit Court of Pulaski County and Perry Counties, State of Arkansas, Case No. 83- 2623, for the crime of conspiracy. DUMF 104. Zacharia acknowledged in his federal criminal trial that he was arrested on November 21, 1983, charged with criminal conspiracy, was found guilty of criminal conspiracy on the December 7, 1984, and received a suspended imposition of sentence, ten years probation and court costs. See DUMF 69. Zacharia was acquitted on March 23, 2007, of the charges brought on the federal indictment.*fn23 See DUMF 107.

At Zacharia's deposition in this case, when asked, "Why do you believe Mr. Chinn discriminated against you?", Zacharia stated that Chinn used the term, "Lebanese. Not just Lebanese, because I was -- it was even worse than being Lebanese. I was a terrorist, because I'm a Lebanese gun dealer and a pilot." DUMF 95. As to whether Chinn called Zacharia a terrorist, Zacharia asserted: "All these things. Not specifically that word or that word. I mean he didn't say one word 'terrorist.'" DUMF 96. Zacharia asserted: "After the handcuffs, and after he [Chinn] threw the papers, and after [Chinn] said, "You're out of business .... I finally got you .... I should have got you four or five years ago ... I knew all along you're a terrorist, something Lebanese." DUMF 97. At no time during the execution of the search warrant on June 21, 2006, nor at any other time whatsoever, did Chinn refer to Zacharia as "terrorist," "Lebanese terrorist," or in any other manner connoting terrorist or ethnic ties. DUMF 98.*fn24

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.

I. SECOND CAUSE OF ACTION -- FOURTH AMENDMENT

1. Probable Cause

Defendant's Argument Chinn argues that probable cause existed. While charges were pending from the 2002 warrant, Chinn was informed through Frazier that copies of the Arkansas felony documents had been obtained. Chinn received the documents, had Merrilees review them, and then contacted the Arkansas Attorney General's office. After several days, Holt informed Chinn and Merrilees of his findings and conclusion. Holt concluded that Zacharia had the status of a felon. Based on discussions with Chinn and Holt, Holt's letter, Chinn's investigative file, and her knowledge of how California law treats out-of-state convictions, Merrilees informed Chinn that Zacharia had been convicted of a felon in Arkansas. Merilees told Chinn that Zacharia: (1) would be ineligible for a COE; (2) would be ineligible to be a firearms dealer; (3) could not possess a firearm; and (4) would be in violation of Penal Code § 12021(a)(1) (felon in possession of a firearm) if he possessed firearms. From his investigation, Chinn knew that Zacharia had the only key to the firearms locker at Zak's, and that Zak's had sold 102 firearms between June 2005 and June 2006.

Further, a review of licences and records indicated that six handguns had not been listed under Zacharia's concealed weapons permits. The evidence suggested that the six handguns had been moved from Zak's inventory into Zacharia's personal possession. This is a violation of the concealed weapons permit laws, irrespective of Zacharia's felony status.

Finally, Chinn's review of Zacharia's 2000 assault weapons permit indicated that Zacharia lied when he answered that he had not been convicted, cited or charged with an offense. In light of the felony documents, Zacharia's answer is false.

The totality of this information provided probable cause for criminal activity.

Plaintiff's Opposition Zacharia argues that the crux of the case is that Chinn recklessly and indifferently failed to investigate and corroborate loose legal conclusions prior to representing to a judge that he had proof that Zacharia was a felon in possession of a firearm. Chinn's investigation was inadequate in that he made no independent inquiries into the effect that Zacharia's 1984 record would have had in Arkansas. Chinn simply parroted the conclusions of two attorneys without considering the fact that Zacharia had passed previous background checks. Further, reliance on Merrilees is unreasonable as she knows nothing about Arkansas law, and reliance on Holt's letter is unreasonable because the letter is ambiguous and Chinn never sought clarification. Had Chinn inquired as to what Holt's letter really meant, he would have learned about many Arkansas case law and attorney general opinions that conclude that Zacharia had the right to possess firearms under the Arkansas codes. Arkansas law does not regard persons treated as Zacharia was treated in 1984 as being "felons." See State v. Warren, 345 Ark. 508 (2001); State v. Ross, 344 Ark. 364 (2001).

Legal Standard

"The warrant clause of the Fourth Amendment requires 'probable cause, supported by Oath or affirmation' to justify the issuance of a search warrant." United States v. Meek, 366 F.3d 705, 712 (9th Cir. 2004). Specifically, a police officer must establish "by sworn evidence presented to a magistrate that probable cause exists to believe that an offense has been committed and that items related to that offense, such as fruits of the crime, will be found on the premises sought to be searched at the time the warrant is issued." United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988). Probable cause for a search warrant "means a fair probability that contraband or evidence of a crime will be found in a particular place based on the totality of the circumstances." United States v. SDI Future Health, Inc., 568 F.3d 684, 703 (9th Cir. 2009). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009); John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). Courts look to "the totality of the circumstances known to the arresting officers, to determine if a prudent person would have concluded there was a fair probability that the defendant had committed a crime." John, 515 F.3d at 940; see Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006).

"The probable cause standard is incapable of precise definition or quantification" and is "a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules." Rodis, 558 F.3d at 969. "While conclusive evidence of guilt is not necessary to establish probable cause, mere suspicion, common rumor, or even strong reason to suspect are not enough." Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). Except for the element of specific intent, "probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Rodis, 558 F.3d at 969. That is, "probable cause" does not require "certainty," does not require a "preponderance of the evidence," and does not require a prima facie showing, it simply requires a "fair probability." See United States v. Gourde, 440 F.3d 1065, 1069, 1073 (9th Cir. 2006) (en banc). "Police may rely on hearsay and other evidence that would not be admissible in a court to determine probable cause." Hart, 450 F.3d at 1067. Further, officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." John, 515 F.3d at 940; Hart, 450 F.3d at 1067. "As a corollary . . . of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause." Ramirez, 560 F.3d at 1023-24. Nevertheless, the "fact that other inferences are possible does not mean that there is a triable issue of fact as to whether there was probable cause;" Hart, 450 F.3d at 1067, "law enforcement officers do not have to rule out the possibility of innocent behavior." Ramirez, 560 F.3d at 1024. Additionally, "an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004); see also John, 515 F.3d at 940.

Discussion

The principle dispute is whether there was probable cause that Zacharia was a felon in possession of firearms, a violation of California Penal Code § 12021. The penal code reads in relevant part: "Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country . . . and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." Cal. Pen. Code § 12021(a)(1). Both parties agree that Zacharia possessed or was in possession of firearms. The disagreement is whether probable cause existed that Zacharia was a felon, due to the Pulaski Crime, in possession of firearms.

In 2002, Chinn was informed by Small that Zacharia had acknowledged a conviction in Arkansas. See DUMF 25. Zacharia had apparently abandoned his dangerous weapons permit application when Small asked Zacharia to send a copy of a pardon or expungement. See DUMF 26. In 2006, Chinn received certified copies of criminal documents from Pulaski County. The Pulaski Documents indicated a guilty plea to felony conspiracy, but also indicated a suspended sentence. See Plaintiff's Exs 7, 8. There is nothing on the face of the Pulaski Documents that expressly indicates that Zacharia is not a felon.*fn25 Chinn consulted with Merrilees, whose job duties include advising Bureau of Firearms officers, like Chinn, in the course of firearms and licensing investigations about state and federal firearms laws. See DUMF's 44-48. Upon Merrilees's advice, Chinn then contacted Holt. See DUMF's 50, 51. As a deputy attorney general for the state of Arkansas, Holt clearly had an expertise in Arkansas law that Merrilees lacked. See DUMF's 50, 54-57. Holt examined the records, did his own investigation, and then spoke to Chinn and Merrilees on the telephone. See DUMF's 59-64; Merrilees Dec. ¶ 10. Holt's conclusion was that Zacharia was a felon based on the Pulaski conviction, and he related that conclusion to both Chinn and Merrilees.*fn26 See DUMF 65; Chinn Dec. ¶ 29; Holt Dec. ¶ 16; Merrilees Dec. ¶ 10. Merrilees then told Chinn that, considering the investigative file, the information and conclusions of Holt, and California law, Zacharia was a felon and could not possess or sell weapons. See DUMF's 68, 70.

Probable cause does not require certainty, or even a prima facie case -- it requires only a fair probability. See Gourde, 440 F.3d at 1069, 1073. The Pulaski Documents, combined with the information from Small, the opinions of Holt, and the opinions of Merrilees are sufficient to establish probable cause, that is a "fair probability," Gourde, 440 F.3d at 1073, that Zacharia was a felon based on the Pulaksi Crime. See id.; Cal. Pen. Code § 12021(a)(1);*fn27 DUMF's 49, 50, 66-68; Plaintiff's Exs. 7, 8. This information was relayed by Chinn in his warrant application. See Defense Ex. J. In examining the warrant application, which included copies of the Pulaski Documents and Holt's correspondence, the Madera Superior Court correctly concluded that there was probable cause, i.e. a "fair probability," Gourde, 440 F.3d at 1073, that an offense under Penal Code § 12021(a)(1) "has been committed and that items related to that offense, such as fruits of the crime, will be found on the premises sought to be searched at the time the warrant is issued." Rabe, 848 F.2d at 997. Chinn had probable cause, and his search warrant application established probable cause.

Zacharia contends that Chinn failed to properly consider the fact that Zacharia had passed background checks and was a licenced firearms dealer. It is true that an officer cannot disregard evidence that tends to dissipate probable cause. Ramirez, 560 F.3d at 1023-24. However, Zacharia does not point to which of his passed background investigations should have dissipated probable cause. Zacharia's unsupported assertions are not sufficient evidence. See Bryant, 289 F.3d at 1167; Tarin v. County of Los Angeles, 123 F.3d 1259, 1265 (9th Cir. 1997). What has been presented to the Court is that Zacharia had obtained a COE, but did not obtain a dangerous weapons permit. See DUMF's 19, 26. Small has declared that full background checks were not done with respect to COE's, but that they were done with respect to dangerous weapons permits. See Small Dec. ¶¶ 4, 6; DUMF's 20, 22. Small also declared that, when confronted with the Pulaski Crime as part of the dangerous weapons permit process, Zacharia acknowledged the crime as expunged, but did not send additional requested information and dropped the application process. See Small Dec. ¶¶ 9, 10; DUMF's 25, 26. Zacharia has not sufficiently explained how, or produced evidence that shows that, probable cause was dissipated by obtaining a COE, given the limited background checks associated with COE's.*fn28

Zacharia criticizes Chinn's reliance on the letter from Holt and argues that Chinn should have sought clarification. The evidence indicates that Chinn, Holt, and Merrilees spoke on the telephone and that Holt explained his conclusion that Zacharia was a felon and that the Pulaski Crime was a felony. See Merrilees Dec. ¶ 10; see also Chinn Dec. ¶ 29; Holt Dec. ¶ 16. The letter was sent at Merrilees's request and was meant to be a confirmation of their telephone conversation. See Merrilees Dec. ¶ 10; Holt Dec. ¶ 17. Thus, the letter was not coming out of a vacuum or without context. It was coming as a follow through or memorialization of the telephone conversation. However, even assuming that Chinn should have sought clarification about Holt's letter, Holt confirmed that the letter meant that the Pulaski Crime was a felony. Holt declared, "I provided SAS Chinn with a letter confirming that the suspended sentence was still a felony; paraphrasing Shakespeare, "a felony is a felony is a felony." Holt Dec. ¶ 17; see also Holt Dec. ¶¶ 15, 16. Thus, had Chinn sought clarification from Holt about what was meant by the letter, Holt would have simply reiterated his prior conclusion -- that the Pulaski Crime was a felony and that Zacharia was a felon. See Holt Dec. ¶¶ 15-17; see also Chinn Dec. ¶¶ 29-31; Merrilees Dec. ¶ 10. This was already Chinn's understanding of the letter. See DUMF 67; Chinn Dec. ¶¶ 29, 30; see also Merrilees Dec. ¶ 10. Chinn's failure to clarify Holt's letter is not material.

Zacharia also criticizes Chinn's reliance on the opinions of Holt and Merrilees. It is not improper, but is in fact advisable, to seek the opinions of district attorneys or deputy attorney generals. See Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009). With respect to Merrilees, she acknowledged that she is not an expert on Arkansas law. See DUMF 50. Merrilees, whose job duties included advising officers like Chinn, initially gave Chinn an opinion about what the Pulaski Documents indicated, and then advised Chinn to obtain the opinion of an expert on Arkansas law. Chinn then contacted the Arkansas Attorney General's office and obtained the opinions of Holt, who has expertise in Arkansas law. See DUMF's 53-57. Once Holt's opinion was obtained concerning the Pulaski Documents, Merrilees rendered her opinion that Zacharia was in violation of Penal Code § 12021. There is nothing unreasonable about Chinn's conduct in obtaining the opinions of Merrilees and Holt. It is true that the advise of an attorney will not per se insulate a police officer from 42 U.S.C. § 1983 liability.

See Ewing, 588 F.3d at 1231. However, Zacharia has failed to show how Chinn's reliance was unreasonable, or why Holt's and Merrilees's respective opinions should not have been considered in determining whether probable cause existed. The Pulaski Documents showed a guilty plea to a felony, which strongly indicated that Zacharia was a felon, and Holt's opinion was meant to ensure the Pulaski Documents accurately reflected that a felony existed. Holt's opinion strengthened the probative force of the Pulaski Documents.

Finally, Zacharia contends that Chinn should have conducted an independent investigation into the legal effect of the Pulaski Crime. The Court takes Zacharia to mean that Chinn should have done more research into the Pulaski Crime and the Pulaski Documents. Perhaps additional research would have revealed that the Pulaski Crime was not a felony conviction. This is far from certain considering that a motion in limine to determine this very issue was denied by District Judge Wanger in the federal prosecution. See Doc. Nos. 18 & 32 in case 1:06-CR-310 OWW. Nevertheless, as advisable as further research and investigation may have been, it was not required. As discussed, the Pulaski Documents reflect a guilty plea to a felony. Further clarification was sought and obtained from the Arkansas Attorney General's office about whether the Pulaski Documents reflect "some sort of conviction" or whether there had been a pardon or expungement. See DUMF's 52, 58. When Holt confirmed that there was no pardon or expungement, that there was a felony conviction, and that Zacharia was a felon, no further clarification was needed because there was a fair probability that Zacharia was in violation of Penal Code § 12021(a)(1). It is unnecessary to "provide more facts than necessary to show a 'fair probability' that [Zacharia] had committed a crime." Gourde, 440 F.3d at 1073. In addressing an argument that law enforcement officers should have done more in their investigation of a computer related crime, the Ninth Circuit stated:

Whether the FBI could have obtained verification of Gourde's downloads through a digital examination of the computer is the wrong question to answer. In any event, the benchmark is not what the FBI "could have" done. An affidavit may support probable cause even if the government fails to obtain potentially dispositive information. See United States v. Miller, 753 F.2d 1475, 1481 (9th Cir. 1985) (holding that an affidavit supported probable cause even though "independent verification could have been easily accomplished in this case" and the "officers failed to take these simple steps"); United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995) ("The magistrate judge erred in focusing his Franks v. Delaware analysis on what the FBI could have learned with more investigation . . . ."); United States v. Dale, 991 F.2d 819, 844 (D.C. Cir. 1993) (noting that "failure to investigate fully is not evidence of an affiant's reckless disregard for the truth" and that "probable cause does not require an officer to . . . accumulate overwhelming corroborative evidence.")

Gourde, 440 F.3d at 1073 n.5. As Gourde and the cases it cites makes clear, it was not necessary for Chinn to continue to investigate and accumulate evidence.

In summary, the Pulaski Documents and the information and opinions from Small, Holt, and Merrilees created a fair probability that Zacharia was in violation of Penal Code § 12021. This information was relayed by Chinn in his warrant application. Chinn had probable cause, and the search warrant application established probable cause. Summary judgment in favor of Chinn on this theory is appropriate.

2. Judicial Deception

Defendant's Argument Chinn argues that there was no judicial deception since there was no known falsehood included in the warrant application. Chinn argues that he conducted his investigation in good faith and relied on the opinions of Merrilees and Holt. The opinions of Merrilees and Holt are the type of opinions that officers reasonably rely upon in obtaining warrants.

Plaintiff's Opposition

Zacharia argues that the search warrant was based on Chinn's declaration. In that declaration, Chinn swore that he received certified copies of the "felony conspiracy conviction." The warrant also states that Chinn received a letter from Holt "confirming" that Zacharia's sentence was suspended but that his "conviction" was still a felony. However, under Arkansas law, Zacharia was not convicted of a felony and Holt's letter is ambiguous (and only two sentences long). Thus, the warrant contained false representations.

Leal Standard

A warrant obtained through 'judicial deception' violates the Fourth Amendment. See Franks v. Delaware, 438 U.S. 154, 170-71 (1978); Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002). "To support a § 1983 claim of judicial deception, a plaintiff must show that the defendant deliberately or recklessly made false statements or omissions that were material to the finding of probable cause." Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009); KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004). A plaintiff's showing of a deliberate falsehood or reckless disregard for the truth must be substantial. Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009); Butler, 281 F.3d at 1024. "Omissions or misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause."

Ewing, 588 F.3d at 1224; United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978). "Nor may a claim of judicial deception be based on an officer's erroneous assumptions about the evidence he has received." Ewing, 588 F.3d at 1224; Smith, 588 F.2d at 739-40. "The court determines the materiality of alleged false statements or omissions." KRL, 384 F.3d at 1117; Butler, 281 F.3d at 1024. In the case of false statements, "the court purges those statements and determines whether what is left justifies issuance of the warrant." Ewing, 588 F.3d at 1224; see also Greene, 588 F.3d at 1035; Butler, 281 F.3d at 1024. In the case of omissions, "the court determines whether the affidavit, once corrected and supplemented [with the omitted facts], establishes probable cause." Ewing, 588 F.3d at 1224; see Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997).

Discussion

There is insufficient evidence of actionable judicial deception. Chinn's search warrant application, which is Defendant's Exhibit J, accurately relates the investigation. Chinn explained the reasons for his conclusion that Zacharia had a felony conviction, which included a description of Chinn's conversations with Small, Merrilees, and Holt. Importantly, Chinn attached copies of the Pulaski Documents, as well as Holt's complete correspondence. Since Holt's entire correspondence was included as part of the warrant application, the Madera Court was able to completely review and interpret Holt's correspondence. Even if the Pulaski Crime is not a felony conviction, as discussed above, there was nothing unreasonable or reckless about Chinn relying on the opinions of Merrilees and Holt regarding the Pulaski Documents. Once Chinn had probable cause, he was not required to investigate further. See Gourde, 440 F.3d at 1073 n.5. Chinn's conduct, conclusions, and bases for his conclusions were disclosed and provided to the Madera County Superior Court in the search warrant application. There has been no "substantial showing" that Chinn made a deliberate falsehood or acted in reckless disregard for the truth in his search warrant application. See Ewing, 588 F.3d at 1224; Butler, 281 F.3d at 1024. Summary judgment in favor of Chinn on this theory is appropriate.

3. Unreasonable Handcuffing

In his opposition, Zacharia cites from Meredith v. Erath , 342 F.3d 1057, 1061-62 (9th Cir. 2003). See Court's Docket Doc. No. 80 at 3-14. The cited section of Meredith deals with handcuffing as a violation of the Fourth Amendment. However, as Chinn correctly points out, the Second Amended Complaint ("SAC") does not allege that handcuffing violated Zacharia's Fourth Amendment rights. Instead, the SAC alleges that defendants deprived Zacharia "of his liberty by unlawfully and maliciously arresting him without probable cause in violation of the [4th] and [14th] Amendments to the United States Constitution."*fn29 SAC ¶ 36. The SAC does not mention handcuffing. "A plaintiff cannot raise a new theory of liability in [his] opposition to a motion for summary judgment or summary adjudication." Torres v. City of Madera, 655 F. Supp. 2d 1109 (E.D. Cal. 2009) (citing inter alia Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000)); Tenet Healthsystem Desert, Inc. v. Fortis Ins. Co., 520 F.Supp.2d 1184, 1193 n.9 (C.D. 2007). To the extent Zacharia complains about being handcuffed, that complaint or theory cannot stop summary judgment. See id.

II. THIRD CAUSE OF ACTION -- Monell "POLICY & CUSTOM"

Chinn argues that he cannot be held liable for improper policies and customs because these are Monell theories that are applicable to municipalities. Zacharia has not responded to this argument or challenged Chinn's characterization of the third cause of action. In the absence of clarification and citation to authority from Zacharia, or evidence to support some form of supervisory liability theory, summary judgment on the third cause of action is appropriate. See Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (discussing supervisor liability); McGrath v. Scott, 250 F.Supp.2d 1218, 1222-23 (D. Ariz. 2003) (discussing supervisor liability and Monell liability).

III. FIRST CAUSE OF ACTION -- EQUAL PROTECTION

Defendant's Argument

Chinn argues that the only evidence of racial animus is deposition testimony from Zacharia. After consulting with counsel, Zacharia asserted that Chinn, while executing the 2006 search warrant, used the term "Lebanese." Zacharia testified that Chinn indicated that Zacharia was a terrorist and a Lebanese gun dealer. However, Chinn did not call Zacharia a terrorist or mention heritage. Further, as the facts demonstrate, Chinn engaged in a legitimate and significant investigation and that investigation indicated that Zacharia was violating California gun laws. The single alleged statement is not sufficient to show discriminatory animus.

Plaintiff's Opposition

Zacharia's opposition does not expressly address his equal protection claim. However, in a footnote addressing conspiracy, Zacharia identifies as a relevant consideration "[Chinn's] allusions durintg the complained of false arrest to Plaintiff's national origin (and being out of business)." Doc. No. 80 at p. 12 n.10. In other words, for his equal protection claim, Zacharia essentially relies on his own testimony regarding Chinn's statements during the 2006 search.

Relevant Deposition & Declaratory Testimony

In his deposition, Zacharia testified:

Q: Okay. Why do you believe that Mr. Chinn discriminated against you?

A: I think it was brought up that Mr. Zacharia is of Lebanese descent, that's one thing, so I believe that the Lebanese thing was brought up more than once.

Q: How was that brought up? Tell me the context. . . . . . . .

A: Other than the fact that the way he treated me all along led me to believe that it's a big case of discrimination, because he never treated me fair. I - - I didn't kill, I didn't shoot, I didn't do anything wrong. Never did, never have. And I feel the whole thing was - - day after day he took me as a project to just continuously push and harass, and throw me out of business as his words were.

Q: Did he ever say an words that used the word "Lebanese?"

A: The words were used, yes. I remember that. I remember - - if you're going to ask me where and when, what, which case it was, or what day it was, whether it was in '02 or '06, I don't remember exactly.

Q: Okay. What was said that related to Lebanese?

A: You're going to have to give me a few minutes not to think about it exactly. . . . . . .*fn30

A: The term I believe was not just Lebanese, because I was - - it was even worse than being Lebanese. I was a terrorist, because I'm a Lebanese gun dealer and a pilot.

Q: Did Mr. Chinn call you a terrorist?

A: All these things. Not specifically that word or that word. I mean he didn't say one word "terrorist." He just - - I am trying to remember that, because I remember now exactly that I was . . . after the handcuffs, and after he threw the appares, and after he said, "You're out of business."

Q: And that was in 2006?

A: Yes.

Q: What did he say?

A: "I finally got you. I should have got you four or five years ago." And he would leave, came back, and referred to me, "I should have got you four years ago. I knew all along. You're a terrorist," something "Lebanese."

Zacharia Depo. at 87:21-90:3; DUMF's 95, 96, 97.

In relation to the above quoted deposition testimony, Chinn offered the following undisputed fact: "At no time during the execution of the search warrant on June 21, 2006, nor at any other time whatsoever, did SAS Chinn refer to Zacharia as 'terrorist,' 'Lebanese terrorist,' or in any other manner connoting terrorist or ethnic ties." DUMF 98. Zacharia responded to DUMF 98 as follows: "Undisputed in as much as to the exact quoted language. However, it was implied to the Plaintiff." PRDUMF 98.

Finally, Chinn has declared that he: (1) abhors the unequal treatment of people on account of their race, ethnicity, national origin, or any other protected status; (2) did not act because of Zacharia's race, ethnicity, national origin, or any other protected status; and (3) never entered into any agreement or acted in concert with anyone to violate the rights of Zacharia. See Chinn Dec. ¶¶ 53, 54, 55.

Legal Standard

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). A plaintiff must show that the "defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Byrd v. Maricopa County Sheriff's Dept., 565 F.3d 1205, 1212 (9th Cir. 2009); Serrano, 345 F.3d at 1082. That is, a plaintiff must show that the defendant "acted in a discriminatory manner and that the discrimination was intentional." Bingham v. City of Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003);*fn31 Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). "Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status." Serrano, 345 F.3d at 1082; Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994). In order to avoid summary judgment, a plaintiff "must produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that the decision was racially motivated." Serrano, 345 F.3d at 1082; Bingham, 341 F.3d at 949. However, evidence that the plaintiff and the defendant are of a different race/ethnicity combined with a disagreement as to the reasonableness of the defendant's conduct toward the plaintiff is alone insufficient to show a violation of the Equal Protection Clause. Bingham, 341 F.3d at 949; see also Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

Discussion

Zacharia's testimony is not particularly clear. Zacharia initially testified that he did not know when or where Chinn used the term Lebanese, but then testified that in 2006 Chinn told Zacharia that he was out of business and then said "something, 'Lebanese.'" See Zacharia Depo. at 90:2-3. Further, Zacharia at one point indicated that Chinn used the term "terrorist," but at another point Zacharia testified that the word "terrorist" was not used. Cf. Zacharia Depo. at 90:1-3 with Zacharia Depo. at 89:14-16. In response to Chinn's proposed fact that he did not use the terms "terrorist" or "Lebanese terrorist," or say anything connoting terrorism or ethnic ties, see DUMF 98, Zacharia did not flatly dispute the contention. Instead, Zacharia stated that there was no dispute as to the quoted language, but that Chinn gave an impression. See PRDUMF 98. Piecing together Zacharia's testimony, DUMF 98, and PRDUMF 98, the Court concludes that there is no genuine dispute regarding Chinn's use of the word "terrorist" -- Chinn did not use that word. See DUMF 98; PRDUMF 98; Zacharia Depo. 89:14-16. PRDUMF 98 indicates that Chinn did not use the terms "terrorist" or "Lebanese terrorist" because those terms are in quotation marks in DUMF 98. There is also no genuine dispute regarding whether Chinn gave the "impression" of terrorism. Zacharia's testimony regarding terrorism or terrorist at best indicates that Zacharia simply had a subjective feeling that Chinn thought that Zacharia was a terrorist. Such a subjective feeling is insufficient. See Collins v. Perez, 2008 U.S. Dist. LEXIS 11079, *18 (E.D. Cal. Feb. 14, 2008); Berg v. California Horse Racing Bd., 419 F.Supp.2d 1219, 1231 (E.D. Cal. 2006); see also Anthoine v. North Cent. Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010); Edington v. Yavapai County, 357 Fed. Appx. 888, 890 (9th Cir. 2009); cf. Cerrillo v. West Park Elem. Sch. Dist., 2009 U.S. Dist. LEXIS 118223, *47-*49 (E.D. Cal. Dec. 17, 2009) (and cases cited therein). However, Zacharia testified that Chinn used the word "Lebanese." See Zacharia Depo. 88:15-17. Further, DUMF 98's contention regarding Chinn's use of words connoting ethnic ties is not in quotation marks. See DUMF 98; cf. PRDUMF 98. Viewing the testimony in the light most favorably to Zacharia, the Court will analyze Zacharia's equal protection argument with the understanding that Chinn said that he should have had Zacharia four years ago, that Zacharia "knew all along," and in some unknown way used the term "Lebanese." See Zacharia Depo. 90:1-3.

Chinn argues that, even accepting Zacharia's testimony, that testimony is insufficient evidence under Federal Deposit Ins. Corp. v. Henderson , 940 F.2d 465 (9th Cir. 1991). In Henderson , the former president of a minority-owned bank contended that the actions of bank regulators caused his removal from the bank's board of directors. The Ninth Circuit found insufficient evidence of racial animus and thus, no equal protection claim. After finding insufficient indirect evidence of discrimination, the Ninth Circuit explained:

Lastly, we consider [the regulator] Oldfield's refusal to authorize Liberty to open a branch office in downtown Seattle. Unlike [president] Wood's other allegations, this contention is accompanied by direct evidence that Wood argues establishes a genuine factual question as to Oldfield's motivations. While we agree that Oldfield's statement - "Who's going to bank with you downtown? After all, you're a minority bank." - might support an inference of discriminatory intent, that does not end our inquiry. In order to defeat Oldfield's motion for summary judgment, Wood had the burden of producing evidence sufficient to create a genuine factual question as to Oldfield's motivations. A factual dispute is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." In the context of this case, Wood must produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that Oldfield's decision not to authorize the branch opening was racially motivated. Especially given the context in which the statement was made, we find that Wood has failed to meet that burden.

Oldfield had a legitimate reason for refusing to authorize the opening of a branch office downtown. Examinations dating from before his tenure as Supervisor indicated that the Bank had serious liquidity and managerial problems. It was entirely reasonable for Oldfield to demand that those problems be addressed before permitting the Bank to expand its operations. In light of this fact, we do not find the statement attributed to Oldfield to be sufficient evidence to create a genuine issue of fact as to his motivations in refusing to approve the branch application.

To hold otherwise would be to make summary judgment unavailable in all cases where the plaintiff has alleged direct evidence of discriminatory intent. Aside from the troubling practical implications of such a holding, we find no authority for creating a presumption whereby a plaintiff is held to have established a genuine factual issue merely by alleging direct evidence. In analyzing a motion for summary judgment, the district court reviews the evidence to determine not merely whether there is a factual dispute between the parties, but whether there is a genuine factual dispute. An allegation of direct evidence will almost always assist a plaintiff in meeting this burden, but such an allegation does not eliminate the genuineness requirement.

In short, the evidence offered by Wood does not support an inference that Oldfield's actions toward Liberty were racially motivated, and indeed his actions were eminently reasonable in light of the increasingly negative reports on the Bank's condition. There being no genuine issue of material fact, the district judge properly granted Oldfield's motion for summary judgment on the equal protection claim.

Henderson, 940 F.3d at 473-74. Zacharia does not discuss or distinguish Henderson .

Although not cited by the parties, in a subsequent case, the Ninth Circuit relied on similar reasoning to deny an equal protection claim. Kawaoka v. City of Arroyo Grande , 17 F.3d 1227 (9th Cir. 1994) involved land use ordinances and development plans that affected land owned by individuals of Japanese/Asian decent. In finding no equal protection violation, the Ninth Circuit in part explained:

The strongest evidence of discriminatory intent consists of two statements made by Doris Olsen, a member of the City Council, to Stephanie Forrest, the Kawaokas' real estate agent, and Cheryl Christner, Ms. Forrest's assistant. Forrest contends that when informed that the City's designation of the Kawaokas' property had decreased its value, Olsen stated "Why should these Japanese people make all that money?" and "Why should these people make so much money?" These deplorable remarks are insensitive and disturbing and are evidence of prejudice. However, they are insufficient to raise a claim that the governmental action was on account of racial discrimination.

The district court analogized this situation to Federal Deposit Ins. Corp. v. Henderson , 940 F.2d at 465. See Kawaoka, 796 F. Supp. at 1330-31. In Henderson, a president of a minority-owned bank sued a federal bank regulator who encouraged the bank's board of directors to fire the president. 940 F.2d at 465. To support his claim of racial discrimination, the plaintiff pointed to a statement by the bank regulator from which one might infer discriminatory intent. Because we found rational reasons for the regulator's actions, including a federal report on the bank that stated that the president's "unsatisfactory management has resulted in the bank's current insolvent condition," we ruled that one statement without additional evidence of racial discrimination was insufficient to state a claim. Id. at 469, 473 & n.16. In the present case, given the many reasons articulated by the City to support its decisions, including the desire to preserve agriculture and the City's small-town character, its concern that infrastructure might not support immediate development, and its concerns about the water adequacy and increase in traffic, Olsen's repugnant statements are insufficient to demonstrate that she acted with discriminatory intent.

Kawaoka, 17 F.3d at 1239.

The Court cannot conclude that Chinn's single use of the term "Lebanese" is sufficient evidence of racial animus in this case. First, Chinn has declared that he harbored no racial animus and abhors racial discrimination. Second, Chinn's precise statement is less than clear, and the single use of the term "Lebanese" seems to be similar to the statements in Henderson and Kawaoka . Third, Henderson and Kawaoka suggest that direct evidence of racial animus may be insufficient to defeat summary judgment in light of significant evidence of a non-discriminatory reasons for challenged conduct. Here, as discussed above, there was sufficient evidence of probable cause that Zacharia was guilty of being a felon in possession of a firearm. In 2002, Chinn received information from Small that indicated that Zacharia acknowledged a conviction in Arkansas. Also in 2002, Chinn's investigations led to the seizure of assault weapons and the filing of criminal charges. In June 2006, Chinn received a copy of the Pulaski Documents which indicated a guilty plea to a felony. Chinn consulted with a Cal-DOJ attorney. Chinn consulted with an Arkansas DOJ attorney. Chinn investigated representations made by Zacharia in the various weapons permitting processes. Chinn submitted the Pulaski Documents, submitted his correspondence from Holt, and accurately described his investigation to the Madera County Superior Court. Chinn believed that probable cause existed that Zacharia was in violation of Penal Code § 12021(a)(1), Merrilees believed that Zacharia was in violation of Penal Code § 12021(a), Holt believed that Zacharia had the status of a felon because of the Pulaski Crime, the Madera County Superior Court found that there was probable cause, and there is no dispute that Penal Code § 12021(a)(1) raises significant public safety concerns. See People v. Shear, 71 Cal.App.4th 278, 288 (1999); cf. District of Columbia v. Heller, 128 S.Ct. 2783, 2816-17 (2008). The evidence shows that there was probable cause to obtain a search warrant.

In light of the facts establishing probable cause, the nature of the search warrant application (which included copies of the pertinent documents and correspondences), Chinn's declaration, Zacharia's ambiguous testimony as to Chinn's use of the term "Lebanese," and Zacharia's failure to distinguish or address Henderson , Zacharia's testimony is insufficient to create a genuine triable issue. Summary judgment in favor of Chinn is appropriate. See Kawaoka, 17 F.3d at 1239; Henderson, 940 F.3d at 473-74.

IV. FOURTH & FIFTH CAUSE OF ACTION -- 42 U.S.C. §§ 1985(2), 1985(3)*fn32

42 U.S.C. § 1985 prohibits conspiracies to interfere with civil rights. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). However, the Court has found no violation of 42 U.S.C. § 1983. "The absence of a [42 U.S. C. §] 1983 deprivation of rights precludes a [42 U.S.C. §] 1985 conspiracy claim predicated on the same allegations." Thornton v. City of St. Helens, 425 F.3d 1158 (9th Cir. 2005); Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004). Also, the Court has found insufficient evidence of discriminatory animus and thus, no equal protection violation. Without class based discriminatory animus, there can be no violation of 42 U.S.C. § 1985. See Portman v. County of Santa Clara, 995 F.2d 898, 908-09 (9th Cir. 1993); Caldeira, 866 F.2d at 1182. Additionally, 42 U.S.C. §§ 1985(2) and 1985(3) require the existence of a conspiracy, that is an "an agreement or meeting of the minds," Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002), to deprive a person of equal protection. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000). However, Chinn has declared that he did not conspire with anyone, see Chinn Dec. ¶ 55, and Chinn's interactions with Madera police officers, Merrilees, and Holt appear to be nothing more than typical aspects of an investigation. There is insufficient evidence of an agreement or a meeting of the minds between Chinn and any other person to deprive Zacharia of equal protection. Summary judgment in favor of Chinn on Zacharia's 42 U.S.C. § 1985 conspiracy claims is appropriate.

CONCLUSION

Chinn moves for summary judgment on the claims alleged against him. With respect to Zacharia's Fourth Amendment claims, the evidence establishes that, based on the Pulaski Documents, the information from Small, and the opinions of Holt and Merrilees, Chinn had probable cause to believe that Zacharia was in violation of Penal Code § 12021(a)(1). Chinn was not required to conduct further investigation. Also, the warrant application and the attached documents establish probable cause, and Zacharia has not presented substantial evidence that Chinn intentionally or recklessly disregarded the truth in the search warrant application. Also, the complaint does not include a claim for unreasonable handcuffing. Finally, the Monell allegations are not applicable to Chinn. Accordingly, summary judgment in favor of Chinn on Zacharia's Fourth Amendment claims is appropriate.

With respect to the Equal Protection claim, the evidence does not create a genuine dispute because the only evidence of racial animus is isolated and ambiguous at best, the evidence established probable cause that Zacharia was in violation of Penal Code § 12021(a)(1), and Chinn has declared that race did not affect his decisions. Summary judgment in favor of Chinn on Zacharia's Fourteenth Amendment claim is appropriate.

With respect to the 42 U.S.C. § 1985 claims, because there is insufficient evidence of racial animus, insufficient evidence of a conspiracy, and no violation of 42 U.S.C. § 1983, there can be no liability under 42 U.S.C. § 1985. Summary judgment in favor of Chinn on Zacharia's 42 U.S.C. § 1985 claim is appropriate.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendant Ignatious Chinn's motion for summary judgment is GRANTED;

2. All currently scheduled dates, including the pre-trial and trial dates, are VACATED;

3. The Clerk shall enter judgment in favor of Defendant Chinn; and

4. The Clerk shall CLOSE this case.

IT IS SO ORDERED.


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