The Earth First! civil rights lawsuit against the FBI filed by Darryl
Cherney and the estate of Judi Bari filed a motion today, Friday, to beging
the process of bringing Richard Held, the Bureau Chief of the FBI's San
Francisco office, back into their lawsuit as a named defendant. For more
information call Alicia Littletree at 707/462-9145 or Darryl Cherney 707/923-4949.
Thank you. Plaintiffs move this court for leave to file a motion for
reconsideration of this court's order of October 15, 1997, granting summary
judgment to FBI supervisory personnel Held, Webb and Appel. Plaintiffs'
counsel certifies that he has conferred with Mr. Sher, counsel for said
defendants, but has not been able to resolve the issue.
Plaintiffs are constrained by the page limitation of Local Rule 7-10(c)
to merely touching on how and why a full motion for reconsideration would
compel a conclusion that one or more of the three prongs of Local Rule 7-9(b)
require this court to reverse its order as to the FBI supervisory defendants.
Plaintiffs seek the opportunity to fully and thus convincingly brief
how this court manifestly failed to consider and assign proper weight to
facts presented by plaintiffs concerning the direct involvement of the exonerated
defendants in the FBI's conspiracy against plaintiffs; how FBI administrative
regulations imposed duties on Special Agent in Charge Held and supervisory
agents Webb and Appel, the violation of which result in supervisory liability;
and how this court exceeded limitations on grant of summary judgment and
ignored the law of supervisory liability so as to mandate reversal on an
ultimate appeal after trial unless the error is corrected by reconsideration.
This action against the United States, the City of Oakland and nine individual
FBI agents and Oakland police officers alleges a conspiracy to violate the
rights of plaintiffs to engage in protected political activity and to be
free from illegal searches, seizures and arrest.
The charges are the gravest that can be brought against law enforcement
personnel and against the government in whose names they act. Plaintiffs
do not allege harm from out-of-control "rogue cops," but a planned, deliberate
acting in concert by line officers, and their superiors. By granting summary
judgment to the FBI special agent in charge and to lesser supervisors, this
court prevents plaintiffs from showing the concerted, animus driven, intentional
nature of the complained of acts which the Ninth Circuit, in reversing summary
judgment against the Oakland supervisory officers, has emphasized is the
hallmark and evidentiary sine qua non of a conspiracy complaint. Political
considerations by FBI supervisors, particularly someone like Held who has
a congressionally proven history of acting similarly in the past, is the
linchpin to proving the intentionality of defendants' acts and therefore
liability for commission of constitutional torts.
A conspiracy without a head or a brain is legally possible but from a
jury perspective not compelling. By granting summary judgment to Held and
the supervisory agents under him, this court has gutted the raison d'˙tre
of plaintiffs' case.
Those in charge are necessary defendants. MANIFEST FAILURE BY THE COURT
TO CONSIDER MATERIAL FACTS CONCERNING HELD'S PERSONAL INVOLVEMENT Held conducted
a press conference in which he stated that no suspects had been ruled in
or out. (Exhibit E to plaintiffs' opposition to Held's motion for summary
judgment.) Although this court mentioned this in the opinion granting summary
judgment, the court failed to consider the all important context.
Exhibit E shows that the news conference was held on the same day and
in response to the announcement by Oakland that it was dropping charges
against plaintiffs. The context shows both that Held was personally aware
of the minutia of the investigation and his animus toward plaintiffs who
were not being ruled out by him despite the lack of evidence against them.
Appel has testified that Held personally approved use of a helicopter to
execute a search warrant against plaintiffs. (Exhibit C to plaintiffs' opposition
to summary judgment motion, pp. 64-65.) Although there is evidence to challenge
this assertion, we are governed by the summary judgment standard of evaluating
the record in the light most favorable to plaintiffs.
Thus, this court's statement that Held didn't know of the arrests and
search until afterwards (order of October 15, 1997, 64:22-24) is manifestly
incorrect. The court failed to consider the helicopter evidence as showing
Held's direct knowledge and participation. Supervising agents Reikes and
Appel testified that they kept Held apprised of the investigation. (Order
p. 23.) Agent Buck testified that they spread the entirety of the physical
evidence on the table in Held's conference room. (Exhibit D, pp. 96-97,
to plaintiffs' opposition.) Although the court considered some although
not all of this evidence (Buck's testimony was not considered), it was mentioned
not as evidence which the jury could accept as Held's personal involvement,
but as disputed facts to be decided in favor of defendants. This is the
time to correct such error. Perhaps the most dramatic portions of the record
not considered by the court relate to the evidence presented by plaintiffs
of SAC Held's unprecedented effort to control and put a spin on the publicity
concerning the bombing.
This court's order did not consider (1) Held's August 14, 1990, teletype
to FBI headquarters asking headquarters to act to stifle national press
criticism of the FBI's role in the case which showed exquisitely detailed
knowledge of the facts of the case (plaintiffs' opposition, p. 12); (2)
testimony by Reikes, the supervisory special agent, that Held was continuously
agitated by press inquiries concerning the case and that he told Reikes
to do what Reikes could to stop the press criticism (plaintiffs' opposition,
p. 13); (3) continual inquiries from headquarters to Held expressing concern
about intense Congressional interest in the criticism leveled against the
FBI concerning its handling of the bombing investigation (plaintiffs' opposition,
p. 9 and Exhibit E); (4) the August 2, 1990, teletype from FBI headquarters
to Held asking for weekly updates on the investigation because of the unprecedented
publicity and headquarters' agitated follow-up of October 24, 1990, demanding
the weekly summaries and admonishing FBI San Francisco for placing in the
bombing file copies of threatening letters to Charles Hurwitz, the timber
baron and antagonist of plaintiffs, and archly informing FBI San Francisco
that "there does not appear to be a connection" between the two matters,
showing that even FBI headquarters felt that FBI San Francisco was going
beyond purview (Exhibit h, pp. 133-134 of plaintiffs' qualified immunity
motion). The significance of these matters of record not considered by the
court is twofold. First, Held's blanket denials of involvement or knowledge
not only should not have been weighed in this summary judgment motion, but
are themselves not credible.
Second, Held's concern with this massive public interest in the FBI's
role in the bombing investigation is at the very least evidence not considered
by this court of supervisory condoning of subordinates' violations which
imposes liability under Johnson v. Duffy, 588 F.2d 740,.743-744 (9th Cir.
1978), is evidence of supervisory indifference which imposes liability under
Slakan v. Porter, 737 F.2d 368, 373, (4th Cir. 1984) and Zatler v. Wainwright,
802 F.2d 397, 401 (11th Cir. 1986); shows condoning or ratification of prohibited
behavior which imposes liability under Larez v. City of Los Angeles, 946
F.2d 630, 646, 649 (9th Cir. 1991); and is comparable to the widespread
media suggestions of misconduct which support an inference of supervisory
notice under the holding of McClelland v. Facteau, 610 F.2d 693, 697-698
(10th Cir. 1979).
THIS COURT ERRED IN REQUIRING FACTUAL PROOF OF DUTY TO SUPERVISE AND IN
WEIGHING DISPUTED EVIDENCE. This court erred when it stated (Order, 65:2-4)
that "... there is no evidence that SAIC Held had any duty to supervise
the day-to-day activities in any given investigation." That duty is not
factual but is imposed by law, either administratively or by judicial decision.
Administratively, the FBI's Manual of Investigative Operations and Procedures
(MIOG) provides in Part I section 174-5 that investigations of "... a bombing
... which will be the subject of a major investigation ..." shall be "...
under the personal supervision of the SAC and should cover all investigative
steps to insure that evidence is preserved and logical investigation instituted
immediately." (Emphasis added.) MIOG further mandates in Part I section
137-2(1) that "[t]he SAC ... is personally responsible ... for the establishment
of informant coverage ..." and in section 137-2(2) that "Supervisory Special
Agents are responsible for the development and operation of informants by
the agents under their supervision." (Emphasis added.) Held admitted that
information from the "heavy hitters" informant was the sole predicate for
FBI involvement in the bombing investigation. (Held deposition at pp. 17-22,
exhibit to plaintiffs' opposition to Held motion for summary judgment.)
Supervisory liability may be premised on a violation of duties imposed by
regulations. (Johnson v. Duffy, supra, 588 F.2d at 744. Thus, FBI MIOG regulations
mandated that the San Francisco SAC, Held, assume personal supervision of
the bombing investigation and that he and his supervisors, Webb and Appel,
are personally responsible for the informant's tip which focused suspicion
on plaintiffs. Thus, the issue is not disputed facts of the personal involvement
of supervisors, but a violation of an affirmative set of administration
obligations by them.
Judicially, the case law cited in the previous section of this memorandum
imposes supervisory liability when evidence is susceptible to an interpretation
of supervisory indifference to prohibited behavior. The order granting summary
judgment combined the triple vices of weighing disputed facts against plaintiffs,
of ignoring the legally imposed duty to extract a supervisory head from
the sand, and forgetting that evidence of involvement in a conspiracy must
of necessity be indirect.
The decision of the Court of Appeals reversing the grant of summary judgment
to Oakland supervisors was based on two of these three points. (See Mendocino
Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999);
"... [U]nlawful conspiracy is generally a factual issue ... so long as there
is a possibility that the jury can infer ...." [192 F.3d at 1301 (emphasis
added)]; "The possibility that other inferences could be drawn ... does
not entitled them to summary judgment" [192 F.3d at 1303]; "Such an agreement
need not be overt ...." [192 F.3d at 1301]; "Direct evidence ... will only
rarely be available." [192 F.3d at 1302.].) The teachings of last year's
Court of Appeals decision mandate reconsideration. This court should allow
plaintiffs to formally and with sufficient room for documentation move for
reconsideration of the order granting summary judgment to FBI supervisory
personnel. Dated: July 14, 2000 Respectfully submitted, _____________________
Marvin Stender mstender@mcternanlaw.com{main}
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