Robert LOMBARDI, Plaintiff-Appellant, v. CITY OF EL CAJON; Steven Shakowski; Does 1 Through 30, Inclusive, Defendants-Appellees

1H7 no admit that and West Scott Defendants segregated tax is privilege

portion privilege tax Because the purposes.

tribal to the Hotel’s related not fund services

does Reservation, can be there

operations or the relationship” privilege between the

no “close by the provided State. services

tax and the (con- Wilson, 37 F.3d at See Cabazon narrowly tailored

cluding that tax was of it percent went one hundred fund). general state’s compelling sum, provided has the Tribe in the strong it has a interest

evidence it is involved operations because

Hotel’s operating of value”

“generating activities Strong the Hotel. federal

a casino within through regulation the federal

interests exist lands, gaming, the lease trust

of Indian Grant, Development million HUD

the $1.12 tribal policy promoting the federal strong tribal development. These

economic outweigh the State’s federal interests is reim- the State

weak interest because pro- of the services that

bursed for most

vides to the Tribe. above, I forth

For the reasons set

affirm the district court’s decision LOMBARDI, Plaintiff-Appellant,

Robert Shakowski; CAJON; EL Steven

CITY OF 30, inclusive, through

Does

Defendants-Appellees.

No. 96-55073. Appeals,

United Court of States

Ninth Circuit. 8,May 1997.

Argued and Submitted June

Decided THOMAS,

Before: RYMER and Circuit PANNER, Judges; Judge.* District RYMER; Opinion By Judge Partial by Judge Concurrence Partial Dissent PANNER.

RYMER, Judge: Circuit appeal This quali involves a claim of immunity in rights fied a civil seeking action damages from a law enforcement officer who decided leave information about infor relationship suspect mants’ with the out of application for a search warrant. The up search methamphetamine, turned drug cash, paraphernalia, and as a result of which prosecuted by Robert Lombardi was Califor nia charges authorities. dropped Superior judge grant when Court suppress ed Lombardi’s motion to after hold pursuant ing to Franks v. Dela ware, 57 L.Ed.2d (1978),1 finding a constitutional viola tion information was left out deliberately disclosed, been judge would not have issued the warrant. officer, then sued the Steven Shakowski, U.S.C. 1983 for dam- ages violating for his Fourth Amendment rights. The district court ordered that Sha- kowski was to qualified entitled because Lombardi failed to show that inten- or tional reckless false statements or omis- sions were made intent to mislead judge who issued the warrant. We hold specific Marrinan, deceive the Marrinan, R. Michael & Adler (in court is California, element addition to Diego, San plaintiff-appellant. deliberate Fredrickson, Friedenberg, Robert L. Ma- falsehood or omission that is material to the Grant, California, Diego, zeika & San determination) plain- defendants-appellees. tiff must show order to survive summary judgment on a claim of a civil seeking damages action for a Therefore, Franks violation. we reverse the entered Shakowski’sfavor. * Panner, truth”; "if, (2) Honorable Owen M. regard Senior District when the Judge Oregon, sitting desig- for the District of subject alleged falsity material that is the nation. side, or reckless is set one there Franks, remains [in]sufficienl 1. Under warrant af- a criminal defendant is entitled content evidentiary hearing challenge to an fidavit to the valid- cause.” ity of a "allega- search warrant if there are 438 U.S. at 98 S.Ct. at tions of deliberate falsehood of reckless dis- 57 L.Ed.2d at 682.

1H9 the war- presided had issued judge who pretrial two requires us consider This First, court held rant. rulings. collaterally estopped from informants, Both Denise Cole immunity by the state asserting qualified testified, Cole, as did Shakowski. Wade Lombardi was ruling, but that Franks court’s lied about the Both said Shakowski Coles materiality of relitigating the precluded from obtained from information he claimed to have in Shakowski statement made one false CI-2, judge but the found that and CI-1 that collateral We conclude the affidavit. incredible, and was Shakowski Coles party on apply to either estoppel does not credible, point. on this Second, also court any the district issue. to Sha- partial granted showed that when the evidence affidavit, from the on the omissions kowski affidavit, was prepared he Shakowski objective- was not affirm because it which we for that Lombardi had been arrested aware facts that weren’t to omit ly unreasonable in This assaulting CI-1 was physically application warrant material when the plainly affidavit disclosed. While Shakowski’s

was made. relationship be- no mention of makes CI-2, and and or between CI-1 tween CI-1 I Lombardi, Lombardi, he and knew or CI-2 Shakowski, along with other Detective Cole, bat- Lombardi’s that CI-1 was Denise Suppression Unit members Crime angry at Lom- ex-girlfriend, who was tered Force, a search Cajon El executed Police recently had taken Lombardi bardi because August home on Lombardi’s warrant her; and had lent to CI-2 a car he back affidavit 1992. Shakowski’s Cole, son, against her whom Wade describes infor- application warrant search burglary, for brought charges recently confidential infor- mation obtained from two juvenile resulting Wade’s incarceration “CI-2,” mants, and to as “CI-1” referred that he dis- had told Shakowski hall. Wade quantities of they had seen saleable he mistreated his liked Lombardi because scales, baggies and the methamphetamine, drugs, but the affidavit gave her mother methamphetamine, for the sale like used affidavit also say so. Shakowski’s doesn’t in Lom- going down and sales transactions previous, about a unsuc- information omits that Sha- affidavit states bardi’s house. The Finally, investigation of Lombardi. cessful identity of CI-1 keep kowski wants he had not “met admitted infor- anonymous because “the and CI-2 interview, an extensive with” CI-l/Denise requested me to so and be- mants have do states, spoken but had as his affidavit my experience that said infor- it is by telephone. her with physical, and emotional mants suffer social are re- their identities retribution when the false state- The state court found vealed.” Denise Cole “met with” ment that Shakowski search, pound of one-quarter During the material, made but that was not scales, pay/ packaging, methamphetamine, the identities about deliberate omissions sheets, $4,000 in were seized. cash owe CI-2; made omissions were CI-1 result, was arrested and aAs informants; and protect the “good faith” to possession for charged possession with affidavit, the omissions added methamphetamine. sale in, probable cause issue did not state back found in suppress evidence He moved questiona- the informants’ the warrant due to 1538.5, § Code the search under Cal.Penal inculpating Lombardi. motivations ble was held determine and Franks findings, judge concluded on these Based had been made or whether false statements misled, granted he been that he had omitted from the facts had been material The State suppress. motion Lombardi’s that, when application warrant such search charges. all ultimately dismissed put into back were either redacted in state court brought suit affidavit, Lombardi then not exist. cause did Shakowski,2 in; against seeking damages accordingly, omissions added back 1983 for a violation of his Fourth granted partial U.S.C. summary judgment for Sha- rights. Amendment Shakowski removed the kowski on the omissions. On second parties action to court. Both test, federal moved prong of the court found that there summary judgment. Lombardi claimed a dispute of fact as to whether Shakow- a the state court’s ski made false statements partial summary him to violation entitled that, did, the warrant if he affidavit and liability judgment on Shakowski’s cause, those statements vitiated search; Shakowski contended the state would have committed Franks violation “good ruling court’s Shakowski’s faith” qualified immunity. lost If he made to qualified immunity motives entitled him statements, false the court further conclud- damages. suit for Lombardi’s dis- ed, also have made the omissions party trict court determined neither was with the intent to deceive or with a reckless summary judgment on basis entitled of disregard truth, both so motions for Lombardi, estoppel: collateral because the summary judgment were denied. fully not addressed That question: left for trial the whether Shakowski intended deceive the intentionally knowingly Did Shakowski Shakowski, magistrate; ground statements, include false or make omis- “good that the state court’s faith” comments sions, in his search warrant affidavit with were dicta. purpose misleading of issuing court The court then denied the cross-motions probable as to the existence cause? so, summary judgment. doing In it ap- qualified The court bifurcated the issues of a plied two-part test crafted before our deci- damages. At the start of the Estes, (9th sion in 65 F.3d 784 jury immunity, trial qualified the court Cir.1995), in which we clarified the standard parties ruled that the free to reliti- for surviving summary judgment on a de- gate findings made the state court fense claim of civil probable cause, the issue of Lom- therefore judicial charging deception action in bardi could not introduce evidence on the Franks. The first violation of prong the materiality misstatement; of the “met with” test court’s asked: and that expert Lombardi could not call an deficient, Was the warrant affidavit so as a testify about Shakowski’s intent. Lombardi omissions, consequence of the that no rea- stipulated that he could not meet his burden sonable either officer would have believed proof rulings.3 under these The district that probable cause or would existed granted to, court then applied for the warrant? for, judgment and entered Shakowski. Lom- prong The second asked: timely appealed. bardi Did Shakowski make intentional false II statements or make the reck- omissions lessly or with the intent to deceive the Lombardi first contends that he was enti- respect probable court with partial tled on the cause? liability issue of Shakowski’s for the unlawful test, prong On first of its court search of his home and proper- seizure of his probable ty decided that so lack- because Shakowski ing from Shakowski’s affidavit that rea- material facts from the search warrant affi- sonably which, affidavit, officer well-trained would not have davit negated added applied for circumstances, the search warrant with the cause. such City Cajon, 2. Lombardi also sued the of El knowingly Cali- Did Officer Shakowski and inten- fornia, but the district tionally, court dismissed the claim or with a appealed ruling. truth, Lombardi has not make false statements or omissions his search warrant affidavit in order to mislead precise question stipu- judicial 3. The Lombardi the state court as to the which officer exis- lated that the answer "no” was: tence of cause? conclusively necessarily submits, that was the shield law an officer loses prior in a action between the suggests determined immunity. Lombardi parties. Anderson-Cottonwood Dis appropriate same in his favor was judgment W.C.A.B., posal Cal.App.3d estop- Serv. v. of collateral under the doctrine either (1982). 332, 185 Cal.Rptr. Typically, pel light the state court’s (1) estoppel apply “if the issue collateral will the Fourth Amendment violated the search necessarily previous [proceed at the undisputed decided or because the sought ing] is to the one which is immunity. identical preclude grant facts (2) previous [proceeding] relitigated; be merits; final on the resulted A (3) party against whom collateral party privity estoppel is was a asserted estoppel argues that collateral prior [proceeding].” Peo party Allen brought under applies to suits Sims, Cal.Rptr. 484, 186. ple v. 32 Cal.3d McCurry, omitted) (1982) (citation 651 P.2d (1980), courts and that federal L.Ed.2d 308 (brackets original). estoppel law to apply must state collateral Here, the in the crimi issue decided prior proceeding whether a state determine sup proceeding must be nal evidence —that preclusion in a subse- in issue should result the omissions Shakowski pressed because § action. counters quent 1983 Shakowski and material —is not made were deliberate apply here estoppel does not that collateral immunity. qualified to of identical the issue concluded, because, as the district court actions, rights In civil find not that he state court did objective unreasonableness of turns on the judicial misled the officer who issued light officer’s conduct in the law enforcement contends, Regardless, warrant. court, clearly The state of established law. pursu- conducted the state court was suppress to ruling in of a motion the context law, is whereas Franks ant to California proceeding, had no in Lombardi’s criminal controlling in federal court. this determination. occasion make argu- is little merit to Shakowski’s There Further, though parties do not even ruling that the state court’s was under ment finality, previously question we have held standard, as found that a the court different suppression rulings under Cal.Penal omissions were deliberate Shakowski’s 1538.5, if not a conviction § followed Code fully probable cause. This vitiated judgments not final acquittal, an comports state court which the col law and therefore are without California And, following. acknowledged it itself subsequent in a civil estoppel effect lateral disagree intent to explain, we we shall (9th 254, Cast, v. 258 suit. Heath required to over- mislead the is denied, 849, Cir.), 484 108 S.Ct. cert. U.S. a of a on claim come (1987); 147, v. 98 L.Ed.2d 103 McGowan cf. in a suit based civil 890, 896, City Diego, Cal.App.3d 208 San Franks; therefore, this affords difference (1989) 537, in the Cal.Rptr. (holding 539 256 preclusive to the denying effect no basis where a followed context of case conviction ruling. we believe state court’s ruling unfavorable the de suppression dispositive in estoppel that collateral is not § rulings Cal.Penal Code 1538.5 fendant that case, reasons. for other estoppel in subse have collateral effect suits); Ayers City binding Rich quent is civil ruling The state court’s Cir.1990) (9th mond, 1267, F.2d 1272 binding 895 only under state collateral us Prosise, subsequent estoppel in (applying estoppel Haring v. 462 collateral law. See 2372-73, guilty 313-14, 2368, pleaded suit where' defendant had 103 76 civil U.S. Allen, (1983); appeal suppression rul not adverse and did L.Ed.2d 1538.5). Thus, ings Code at L.Ed.2d at under Cal.Penal at 101 S.Ct. 66 case, California, missing in this requirements are party generally two 318-19. collaterally not is therefore estopped relitigating an issue of fact from (1991) curiam) asserting estopped (per from reasonable (quoting Mitchell v. Forsyth, believed that the officer could have omissions (1985)).

were immaterial. This is true in Franks-type suit as in other. Ill tables, Turning the ar Lombardi gues letting court erred argues that “intent to mis Shakowski invoke doctrine collateral not lead” is an extra element he must estoppel preclude contest summary show order to judgment survive ing the state court’s that Shakowski’s qualified immunity, as the district court “met false statement with” CI-1 was held. The court made “intent to deceive the correct, not He is material. because the respect court with cause” final, prior ruling not and because there prong of two-prong the second test exception estoppel is an collateral “when overcoming summary judgment and an ele preclusion party against ‘[t]he whom prove ment that Lombardi would have not, law, sought could as a matter trial on the of qualified immunity. issue It obtained review the the initial inability prove was Lombardi’s intent to Anderson-Cottonwood, 135 Cal. action[.’]” deceive that led the court confer App.3d Cal.Rptr. (quoting at 340 immunity on judg Shakowski and to enter 28(1)). (Second) Judgments § Restatement ment in his favor. prevailing party, This who “was includes imposing Lombardi contends that “in- aggrieved appeal judg and could requirement tent to deceive” is inconsistent prevailed Id. ment.” Since Lombardi at the Stanert, with United States suppression hearing, ap he could not have (9th Cir.), (9th amended 769 F.2d 1410 pealed the state court’s that the false Cir.1985), where we held that deliberate or “met with” statement was not material. reckless omissions of facts that tend mis- to Therefore, estoppel pre collateral does not negate lead can showing a facial of from relitigating clude Lombardi the materi cause, Hervey, and with which set out the ality of the “met false with” statement. plaintiff prove elements a must to over- qualified immunity come a claim of in a civil

B rights alleging judicial deception. action estoppel apply, Even collateral does Neither mentions additional element of subjective beyond Lombardi contends that the district court “intent to mislead” the partial summary granted judg- deliberate, reckless, should have knowing and nature ground ment in his on favor the alternative of the false statement or omission. Lombar- undisputed facts show that di further notes that an “intent to mislead” requirement search violated Franks and the Fourth with Supreme at odds objective Amendment. He maintains that both ele- Court’s insistence that factors de- a ments of Franks violation were established termine these issues. See United v. States Leon, undisputed 897, 919-23, on 3405, facts. 468 U.S. 104 S.Ct. 3418-21, 677, (1984); 82 L.Ed.2d 696-99 see disagree compels We a ruling that this in 635, also Creighton, Anderson v. merits, puts favor on the as it Lombardi’s 641, 523, 107 S.Ct. 97 L.Ed.2d cart obliged before the horse. first We (1987); Fitzgerald, Harlow v. to consider whether Shakowski is entitled to 2727, U.S. S.Ct. immunity because the (1982). “ L.Ed.2d 396 ‘an immunity from suit than a mere rather ” liability.’ Bryant, defense to Hunter v. responds that omissions are dif- 227, 112 534, 536, 116 argues ferent.4 He and Branch parties Therefore, arguments 4. Both rulings focus their on omis- made. its in main were sions, because the district court found triable concerned Shakowski's failure to disclose issues fact whether false statements about the informants. .information

H23 (9th Cir.1991), Tunnell, appropriate remedy.” is an suppression then 937 F.2d 1382 v. Stanert, 780; Leon, in this circuit 762 F.2d at also set the standard see which al actions civil at U.S. at 82 L.Ed.2d deception, to affir leging judicial are limited 698-99. view, in In Shakowski’s mative statements. brought omissions into the Franks Stanert to tentionally omitting enough facts is this circuit. officer’s affidavit fold unless the a loss of cause suspect say Stanert failed to that while the the contents are made enhance omissions Panama, had been arrested in he hadn’t been magis and to mislead of the affidavit any We held that the convicted of offense. Both the court trate. Fourth Amendment “mandates a defen Franks is extended reason that when permitted challenge dant be a warrant omissions, principle overarching de —the affidavit valid on its face when contains judicial deception officers— terrence deliberate or reckless omissions facts that compels must the conclusion that omissions Stanert, tend mislead.” with the intent to mislead or with be made “[by] As explained, reporting we less than disregard for the truth. Shakowski manipulate approach story, is consistent with total an affiant can submits that Stanert, that we should event magistrate inferences will draw. To allow Eighth Fourth and follow the lead of the to be misled such a manner Circuits, which Franks violation for find a requirement could denude the only officer omissions when the intended Thus, meaning.” all real Id. what re Colkley, v. mislead. See United States (for and, turn, quired (4th Cir.1990); F.2d 297 United States plaintiff Heruey, for a overcome (8th Cir.1986). Reivich, 793 F.2d 957 claim of showing immunity) is “a disagree

We mislead plaintiffs affiant issuing court is an element top subjective required prevent technically intent re true facts Heruey

quirement from Franks being statements in the affidavit from mis already Stanert, 781; incorporates quali into the standard leading.” 762 F.2d at see also immunity analysis. fied Meling, United States (9th held that a statement can Cir.) Court false test to omis (applying the Franks negate probable cause if is material and finding sions sufficient “a substantial and “knowingly intentionally, or with made deliberately showing FBI omitted the disregard for the truth.” concerning [cooperating wit information — 438 U.S. at 98 S.Ct. at 2675-76. We denied, credibility”), ness’s] cert. long a in a have measured whether defendant (1995). -, 130, 133 L.Ed.2d 79 challenge facially criminal case can a valid alleged with how to deal with an Faced “(1) by con affidavit whether the affidavit qualified of Franks violation in the context intentionally or false tains state immunity recog we from suit under ments, purged the affidavit of its Branch, F.2d at nized in 937 falsities would not be sufficient to a a ... Harlow’s tension. between. “[t]here probable cause.” United States ‘objective emphasis on reasonableness’ and (9th Cir.), Lefkowitz, 618 F.2d law3 ‘clearly established at cases which denied, cert. element, subjective a such (1980). issue contains showing If that is met reason, For this we decid held, motive or intent.” evidentiary and after an “the Heruey a ed in Branch to embrace magistrate judge or court concludes that the pleading, for heightened standard issuing the warrant was misled infor overcoming summary judgment on a defense mation in that the affiant- knew the affidavit parallels immunity, that qualified claim of was false or would have known was false truth, to except showing require we a defendant disregard for his reckless threshold issuing making prove required court in the both district court Lombardi to mislead subjectively to deceive or false statements and omissions. Shakowski intended evidentiary hearing to have an summary judgment make in order come on a defense claim qualified proceed- immunity. challenge in a criminal on Franks test: ing. summarized the As we required Because the court Lom- bardi show that Shakowski made false only summary can survive plaintiff [A] statements or omissions in order mislead defense claim judgment on a issuing proba- court as to the existence plaintiff can both establish (and ble cause lost because he showing aof deliberate false- showing), couldn’t make we must reverse hood or reckless and establish the court’s granting quali- order that, dishonestly included without entering judgment fied in his information, would remand, favor. On will district court the warrant. not have issued Put another whether, question have consider anew the way, plaintiff must establish that the Stanert, Hervey Lombardi sur- remaining information the affidavit is vives immu- insufficient to establish cause. nity. It will have to do so without reference get showing necessary jury in to a subjective factor of than other section 1983 action is the same as the intentionally whether Shakowski or reckless- necessary get evidentiary showing ly made false statements or material omis- hearing under Franks. sions. As no one ruling contests the court’s triable issues respect exist with Hervey, F.3d at 789. made, whether false statements were trial presumably that issue will place. take How- “Intent to mislead court” is not ever, issue will be whether Shakow- among the elements identifies. recklessly reported ski false- points authority to no adding ly what CI-1 and CI-2 told him-not whether as an “intent to mislead” element when inten so magis- did with intent to mislead the stake, tionally statements are and we false trate. doing so. see no basis he notes Eighth that both the Fourth and Circuits IV they have indicated will not find the Lombardi contends that the district court proceed met standard criminal also wrong question, got asked the ing unless there is that omissions answer, wrong prong on the first of its two- mislead, [they] “designed are or that prong immunity test: rea- “Would a disregard, made in reckless of whether sonably well-trained officer in Shakowski’s mislead, magistrate.” Colkley, position affidavit, known have that his taken 301; Reivich, F.2d at see with the omissions ‘added back’ failed to explained, Colkley As affiant “[a]n cannot be establish cause and that he should expected every piece to include an affidavit applied for the warrant.” As a gathered information the course of an result, maintains, the court led investigation.” 300. 899 We have astray and should not have granted partial reasoning, recognizing the same embraced in qualified immunity to Burnes, 1354, 1358 United States v. Shakowski. (9th Cir.1987), “[t]he that mere fact that the every affiant did not list conclu conceivable A validity sion does not taint the of the affida indicated, posture As we have the of this vit.” imposing heightened But instead of cleanly ease makes it difficult to deal with the proof only requirement in the case omis rulings, district court’s two-prong because its Colkley in sions—as do Reivich the crim adopted test was without reference to Her- Hervey impose inal context —Branch and a vey. However, the standard that the court heightened pleading proof requirement, adopt did prong for the first of its test came including subjective the intent element from 335, 344-45, Malley Briggs, from 475 U.S. for commissions as well as omis 1092, 1098, 271, 106 S.Ct. 89 L.Ed.2d plaintiff (1986). sions. It is this standard that a There, Supreme the Court that held must meet the in objective civil side order over- the same reasonableness standard argues the district court in the context a crimi- applied had that it the Leon hearing in defines suppression got right nal because there is a difference immunity whose accorded an officer qualified cause is lack- finding probable between allegedly caused an request for a warrant (as Franks ing will be the case when test, the Under that arrest. unconstitutional proceeding), in violation is found a criminal reasonably well- question is “whether “objectively no reasonable” position would [the officer’s] officer in trained thought qual- officer could have so—on which failed to estab- have known that affidavit immunity in a ified turns civil action. and that he should not probable lish submits, Malley Thus, prop- standard the Malley, applied the warrant.” erly prong the first of the test for constitutes 345, 1098, S.Ct. at 89 L.Ed.2d at U.S. at immunity whenever 281. claim is that a search or arrest was unconsti- argues that the district court lacking tutional because cause was objective importing went off track for the warrant. Franks-type inquiry into a reasonableness wrongdoing ease where the heart Hervey agree We with Lombardi making statements or of intentional false analysis proceed. must controls how respect, In this he sub- material omissions. However, Hervey objective turned on itself mits, different from Franks situations are reasonableness, as all of qualified do issues (as deficient in which a warrant be those Hervey, immunity.5 plaintiff claimed Malley), not on account of false state- but falsely search re- warrant affidavit or material omissions. Lombardi ments ported deputy that a had smelled P2P or who violates reasons that an officer therefore completed deputy acetone and that the is, se, per objective Franks acting clan- investigation courses narcotics For this he relies on the reasonableness. laboratory investigation destine when he Leon, Supreme opinion holding Court’s application hadn’t. We overturned the good exception to exclu- faith summary to apply rule viola- sionary does not falsely we in- concluded that tions, our own decisions cluded facts constituted entire substance Branch, explaining that an officer sub- who that, them, affidavit and without mits with false statements and no an affidavit neutral have issued to constitute accurate information sufficient doing, emphasized the warrant. In so we probable cause cannot be said to have acted only objectively unreasonable objectively “[i]t in an reasonable manner. Anderson, emphasized (police applying Supreme for warrants are im Court officers As the jurispru- could have be summarizing mune a reasonable officer to date: that there was cause to dence Harlow lieved Forsyth, application); 472 U.S. Mitchell v. government When officials abuse their of 2816, 86 L.Ed.2d 411 105 S.Ct. fices, damages may “action[s] offer (officials unless "the law are immune avenue for vindication of constitution realistic took); proscribed clearly the actions” hand, guarantees.” permitting al damages On the other Scherer, 183, 191, S.Ct. Davis v. 468 U.S. against government suits officials can 3012, 3017, (1984); Harlow v. costs, including the entail substantial social 2738; Fitzgerald, 457 U.S. at personal monetary liability that fear of risk harassing litigation Navarette, cf., e.g., Procunier unduly will inhibit officials (1978). 55 L.Ed.2d 24 discharge of their Our cases duties. concretely, whether an offi Somewhat more conflicting these concerns have accommodated by generally providing by protected qualified immunity be cial government officials allegedly personally liable for an unlawful held discretionary performing with a functions "objective generally the action turns on official immunity, shielding them from civil action, Harlow, legal reasonableness” the damages liability long as could their actions U.S. S.Ct. at 2738 assessed in 457 at 102 reasonably thought have been consistent with “clearly legal light of rules that were estab the rights they alleged are to have violated. the See, taken, 335, 341, time was id. at 102 Malley Briggs, lished" at the it e.g., U.S. at (quali S.Ct. 2738. 89 L.Ed.2d 271 at immunity protects plainly "all the at but in fied (most knowingly at citations omit- competent L.Ed.2d ted). internal or those who violate the law”); id., at 106 S.Ct. at 1097-98 344 — deliberately or officer informants in the affidavit.6 law enforcement He did this for recklessly purpose misstate facts material to the protecting the them from retalia- Hervey, by Lombardi, cause determination.” 65 tion not purpose for the Only F.3d at 789. false statements were at misleading magistrate; the but this does not Hervey, but Stanert makes the issue in matter subjective because Shakowski’s moti- applicable to principle same omissions. vations are irrelevant. The information was Thus, only objectively is un- F.2d at 781. it intentionally, out negligently, left not and reasonable for a law enforcement officer de- enough satisfy subjective that’s liberately or to make material requirement Hervey. of Franks and omissions. affidavit, In the expressed materiality facts in made The methamphetamine that being kept belief was easy, importance inquiry at Lombardi’s house. His belief was based and, it, false information was obvious without entirely given by on information himto CI-1 nothing remained in the affidavit. The offi- (with whom he he said “met” and had an sight, perceptions cer fabricated smell and interview”) “extensive and CI-2. Shakowski sound, “unforgivable,” which at was knew, say, but did not and CI-1 CI-2 791; thoroughly unprofession- “indeed it was joint were related to each other and had facts, falsely al.” Id. Without the included separate reasons for disliking Lombardi. unproven, all that uncorrob- remained was Lombardi has therefore made a substantial orated unreliable informant information that Shakowski omitted weight, that was entitled no and which no required prevent facts the statements that magistrate possibly neutral could cred- by CI-2, he said were made CI-1 and and his magis- ited. Id. at 790-91. But whether the conclusions, being misleading. own not trate would have issued the warrant with deliberately Whether Shakowski left redacted, false information or infor- out material information is a much more restored, always mation is so In not obvious. question. difficult judge thought state “outrageous” cases of conduct Her- such as had; thought that he judge the district vey, clearly lacking where hadn’t. Looking legal rules statements, the false without the officer “can- clearly application established when the objectively said to have acted be made, say magistrate we cannot that a manner reasonable shield of would have issued the warrant he had (quoting is lost.” at Id. been told all that Shakowski knew about the 1387) (internal Branch, quotation 937 F.2d at informants. omitted). However, cases, marks other particularly involved, where omissions told, If he had been materiality may not have been clear have known that CI-1 was Lombardi’s for- in, time officer what decided to include girlfriend him; mer who was mad CI- from, what exclude affidavit. 17-year-old jail CI-l’s son was in who cases, plain such when it is not that a neutral charges by brought and who magistrate would not have war- issued the anyway; disliked Lombardi Sha- rant, shield of should tipped kowski had been to talk to CI-1 and lost, reasonably not be because a well-trained sister, CI-2 CI-l’s whose son was also officer would not have known that the mis- facing felony charge his role statement omission would have effect burglary of Lombardi’s house. the warrant. magistrate also would have known that the given statements of CI-1 and CI-2 were

B independently, apart, three months without Applying having spoken these in CI-1 and CI-2 standards the facts to each other case, undisputed knowing what the other had Shakow- told ski; deliberately knowingly quan- omitted from the the statements were detailed as identify affidavit might information that tity drugs money, were based on ruling Because the unappealed, district court's that triable we address the omissions. falsity issues of fact exist as to of statements

H27 observation, probable an effect on cause recounted different have determi- and personal activities; objectively not drug and nation. It is unreasonable things about Lombardi’s Therefore, In omit that aren’t material. other. facts corroborated each the statements standing partial court’s addition, that he had we leave the district statement seen CI-2’s summary judgment in Shakowski’s favor burglarized house drugs when he Lombardi’s these the omissions. penal interest. Given against was Gates, Illinois v. see reliability, indicia of V 213, 233-34, 103 (1983), the indicia hostili- collat- We conclude that Shakowski not ty plainly not been material un- would have erally estopped claiming qualified im- See, e.g., United States law. der established munity is not entitled to and Cir.1981) Willis, (9th v. 58-59 F.2d judgment on account of collateral es- either no (probable cause not vitiated and toppel or because a Franks violation has when officer omitted infor- violation occurred Subjective been shown. deceive informant, supplied mation that who not mislead the court element an information, incriminating was much of the must show addition to a sub- girlfriend suspect’s live-in who former falsity or stantial of deliberate with, currently having an affair and be- for truth order by, ing supplied another narcotics Seconal qualified im- survive officer); Lefkowitz, F.2d & n. 4 at 1317 munity. the order We therefore reverse (no Franks violation where officer omitted granting qualified immunity judgment and suspect’s ex-wife that an informant was the only objectively It in Shakowski’s favor. spite, vengeance, motives “of possible for law officer unreasonable enforcement advantageous perhaps a desire to obtain to omit facts that are material to the deter- property information via an IRS settlement probable mination of cause. Because files that tax investigation” but IRS showed Shakowski decided to leave out of facts Stanert, committed);7 had offenses been cf. the, magistrate affidavit are such that (modified affidavit includ- 762 F.2d 781-82 plainly the warrant issued ing disposition of arrest that was defendant’s disclosed, is enti- had been provide fails substantial basis for on the omissions. tled residence).8 Be- to search party shall its costs. Each bear clear lines for when cause we have not drawn PART; AFFIRMED IN REVERSED IN material, information omissions PART; REMANDED. ulterior and biases of infor- about motives (or inevitably frequently) has not even mants PANNER, Judge, Concurring in District proba- led to a Franks violation vitiating for Dissenting in Part: Part cause, ble reasonable officer ShakowsH’s respectfully I would affirm the position recognize failed to I dissent. could have entirety. court’s the facts he disclose would decided not Phillips, warrant in Hall failed disclose 7. See also United States v. 727 F.2d Cir.1984) (5th (informant provided was credible 397-99 despite who information the informant suspect's fact that she was drug wife implicating the transactions defendant him); recently quarreled with and left Unit convictions, including a conviction had several (4th Hodges, Cir. ed v. States falsely reporting a crime. The 1983) girlfriend (estranged was credible infor little else other than what informant knew possibility despite that she harbored ill will mant said, upheld suppression of the so we evidence suspect); Copeland, F.2d United States wiretap Meling, violation. under Franks Cir.1976) (5th (probable cause exists part on the basis of warrant obtained grind” despite "axe to with sus father-in-law's supplied by who had information informant pect, provided was because information based dishonesty impure old crimes of motives—an detailed, knowledge, it was officer firsthand money dis- interest in reward weren't —that citizen). good knew informant to be things we held that such don’t closed. However informants, necessarily and that make liars Hall, (9th 113 F.3d 157 Both United States basis 1997), there remained Meling, 47 came down Cir. light un- evidence wasn’t applied cause in other for the Lombardi war after Shakowski trooper applied The state who for the dermined. rant. majority correctly holds that of a The Shakow- deliberate reckless falsehood or omis sion that material qualified immunity to to the ski is entitled See, Estes, e.g., Hervey determination. v. respect majority, omissions. The to the er- (9th Cir.1995) 784, 789 to (referring my opinion, roneously in also holds that this “dishonestly included or omitted informa case must remanded for the district court be tion”); Tunnell, Branch v. to whether Shakowski is reconsider entitled (9th Cir.1991) (plaintiff must establish alleged misstate- that, dishonesty, challenged but for the ments in warrant his search affidavit. occurred). action would not have These deci majority The finds error dis- speak dishonesty, involving sions conduct required prove trict court Delaware, as does Franks. alleged trial that made the Shakowski mis- 57 L.Ed.2d “ statements with intent mislead the (affidavit be ‘truthful’ in should judge. state court The district court put the sense that the information forth is try preparing jury the issue before a when accepted appropriately by believed or stipulated prove that he could not true”). “Dishonesty” affiant ordinarily “knowingly intentionally, associated with an intent deceive. Aside truth, or with a here, requiring proof the fact that [made] false statements or omissions effect, intent to deceive had no it’s difficult to search affidavit in warrant order to mislead imagine any involving case alleged Franks judicial the state court officer as to the exis- violations where such an instruction on intent tence of cause.” Based on inappropriate. Lombar- would be stipulation, di’s the district court entered The gave district court in this case Lom- judgment in Shakowski’s favor. every opportunity bardi he was to. entitled proceed. Lombardi declined to The district majority concedes that the real entirely court’s judgment appropriate. issue is whether Shakowski falsely reported what the confiden- tial told him. The informants informants deliberately that Shakowski

contended lied

about his conversations with them. Based on case,

the facts in this if Shakowski lied about him, what obviously the informants told he MONTROSE CHEMICAL COR- the magistrate. intended to deceive There PORATION OF CALIFOR- allegations

were no other the war- NIA, Plaintiff, rant. majority Even if the is correct that Watkins, Appellant, & Latham required proof court should intent to magis- Shakowski’s deceive the trate, error, AMERICAN MOTORISTS any, INSURANCE irrelevant COMPANY, corporation; Travelers these stipulated facts. When Lombardi Indemnity Company, corporation; In- proof could not meet the burden estab- Company America, surance of North court, lished the district in effect he was corporation, Defendants-Appellees. conceding prove that he could not had lied. It makes no sense to return this Nos. 96-55091 to 96-55097. matter to the district court to resolve wheth- of Appeals, United States Court lied, er Shakowski very because that’s the Ninth Circuit. issue the district court offered submit. Argued May and Submitted 1997. There be cases in which it would be Decided June require plaintiff error to prove magistrate, to deceive the but this is certain-

ly not one. This circuit’s require decisions plaintiff make a

Case Details

Case Name: Robert LOMBARDI, Plaintiff-Appellant, v. CITY OF EL CAJON; Steven Shakowski; Does 1 Through 30, Inclusive, Defendants-Appellees

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 30, 1997

Citation: 117 F.3d 1117

Docket Number: 96-55073

Court Abbreviation: 9th Cir.