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.
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
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).
"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 ...