Peter Littlefair v. Arne Gonser

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PETER T. LITTLEFAIR, No. 09-35806
Plaintiff - Appellant, D.C. No. 3:08-cv-05476-BHS
v.
MEMORANDUM*
SERGEANT ARNE GOSNER, in his
individual and official capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted August 30, 2010
Seattle, Washington
Before: HAWKINS, McKEOWN and BEA, Circuit Judges.
Peter Littlefair appeals the district court’s order granting summary judgment
based on qualified immunity in favor of Sergeant Arne Gosner on Littlefair’s
claims brought under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo the district court’s grant of summary judgment. Ewing
v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009). Viewing the evidence in
the light most favorable to the nonmoving party and drawing all justifiable
inferences in its favor, we must “determine whether there are genuine issues of
material fact and whether the district court correctly applied the relevant
substantive law.” Id.
Where a plaintiff brings a § 1983 claim alleging false or omitted statements
in a search warrant affidavit, the standard for qualified immunity is governed by
Franks v. Delaware, 438 U.S. 154 (1978). Liston v. County of Riverside, 120 F.3d
965, 972 (9th Cir. 1997). To survive summary judgment for a claim for judicial
deception, a plaintiff “must make (1) a ‘substantial showing’ of deliberate
falsehood or reckless disregard for the truth and (2) establish that, but for the
dishonesty, the challenged action would not have occurred.” Id. at 973 (quoting
Hervey v. Estes, 65 F.3d 784, 788–89 (9th Cir. 1995)). “If a plaintiff satisfies these
requirements, ‘the matter should go to trial.’” Id. at 973 (quoting Hervey, 65 F.3d
at 789).
Littlefair failed to show that Sergeant Gosner deliberately or recklessly made
false statements or omissions in his affidavit that were material to the finding of
probable cause for the search warrant of Littlefair’s property. As the Supreme
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Court has noted, “qualified immunity . . . provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). Sergeant Gosner’s conduct does not rise to this level,
and therefore he is entitled to qualified immunity.
Furthermore, the district court did not abuse its discretion when it excluded
portions of Littlefair’s declaration. Littlefair did not have personal knowledge to
offer such evidence under Federal Rule of Civil Procedure 56(e). Even if the
district court did abuse its discretion, the error was harmless given that the
excluded evidence was cumulative of other evidence. See United States v.
Hinkson, 585 F.3d 1247, 1251, 1262 (9th Cir. 2009) (en banc).
AFFIRMED.
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