FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER BRAVO, SR.; HOPE BRAVO;
E. B., a minor by her Guardian ad
Litem Sara Gonzales,
Plaintiffs-Appellants,
v.
CITY OF SANTA MARIA; DANNY R. No. 09-55898
MACAGNI, Santa Maria Police
D.C. No.
Chief; LOUIS TANORE, Santa Maria
Police Detective; LARRY RALSTON, 2:06-cv-06851-
Santa Maria Police Lieutenant; FMC-SH
COUNTY OF SANTA BARBARA; SANTA OPINION
BARBARA COUNTY SHERIFF’S
DEPARTMENT; JIM ANDERSON, Santa
Barbara County Sheriff; DON
PATTERSON, Santa Barbara County
Commander,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
May 5, 2011—Pasadena, California
Filed December 9, 2011
20909
20910 BRAVO v. CITY OF SANTA MARIA
Before: Stephen Reinhardt and Michael Daly Hawkins,
Circuit Judges, and Brian M. Cogan, District Judge.*
Opinion by Judge Hawkins
*The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
BRAVO v. CITY OF SANTA MARIA 20913
COUNSEL
Donald W. Cook (argued), and Robert Mann (briefed), Los
Angeles, California, for the plaintiffs-appellants.
Richard R. Terzian (argued and briefed), Burke, Williams and
Sorensen, Los Angeles, California, for defendants-appellees
City of Santa Maria, Danny R. Macagni, Santa Maria Police
Chief, Louis Tanore, Santa Maria Police Detective, and Larry
Ralston, Santa Maria Police Lieutenant.
Jake Stoddard, Chief Deputy, and Jordan Sheinbaum, Deputy
County Counsel, Santa Barbara, California, (both briefed) for
defendants-respondents the County of Santa Barbara, the
Santa Barbara Sheriff’s Department, Sheriff Jim Anderson
and Commander Don Patterson.
20914 BRAVO v. CITY OF SANTA MARIA
OPINION
HAWKINS, Senior Circuit Judge:
Hope Bravo and Javier Bravo Sr., along with their minor
granddaughter E.B. (collectively “the Bravos”), appeal the
adverse summary judgment grant in their 42 U.S.C. § 1983
action arising out of the nighttime SWAT team search of their
home for weapons suspected of being used in a drive-by
shooting and stored in the Bravo home by their son, Javier
Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth
Amendment rights were violated by the issuance and execu-
tion of a search warrant whose application failed to disclose
that Javier Jr. was at that time, and for over six months had
been, incarcerated in the California prison system and there-
fore not only was not present in the Bravo home, but more-
over could not have been involved in the shooting or the
storage of weapons used in it. Because the Bravos presented
sufficient evidence establishing a genuine issue as to whether
Santa Maria Police Department (“SMPD”) Detective Louis
Tanore’s (“Tanore”) omission of this material fact was inten-
tional or reckless, as opposed to merely negligent, we reverse
the summary judgment grant in his favor and remand.
BACKGROUND FACTS AND PRIOR PROCEEDINGS
I. Background1
A. Obtaining the Warrant
The series of events that culminated in the search of the
Bravo home began with the SMPD’s investigation of an April
21, 2006 drive-by shooting in the unincorporated Tanglewood
area of Santa Maria, California. Shots were fired from a vehi-
cle into an occupied home, striking and injuring a young boy.
1
The facts are derived, in large part, from the district court’s summary
judgment rulings.
BRAVO v. CITY OF SANTA MARIA 20915
SMPD Gang Suppression Team (“GST”) Detectives Tanore
and Eligil Lara (“Lara”) were among those responsible for
crime scene investigation and witness interviews. Together,
they interviewed the victim and other occupants of the tar-
geted home, learning from the witnesses that they were for-
merly associated with the Tangas gang and believed the
shooting was, in part, a reaction to their disassociation from
the gang.
Two of the witnesses recognized the car from which the
shots were fired as belonging to a Tangas member and recog-
nized a man’s voice calling out from the car as that of another
member. The witnesses suggested that fellow Tangas mem-
bers not directly involved in the shooting would likely be stor-
ing the weapons used, as was the Tangas’ customary practice.
The witnesses then provided Tanore and Lara with a list of
between twelve and fifteen names, including Javier Jr.’s, of
alleged Tangas members believed to be closely associated
with the suspected shooters.
Based on this and other information, Tanore prepared an
affidavit in support of a “multiple location gang association
warrant,” which SMPD obtained four days later from a Santa
Barbara County Superior Court Judge. The warrant was
sealed for the informants’ protection and authorized search of
seven individuals suspected of harboring weapons and evi-
dence relating to the drive-by shooting, as well as search of
those persons’ residences and vehicles, and search of any per-
sons or vehicles present at the time of the warrant’s execution.
The warrant authorized the seizure of guns of the caliber used
at the shooting, all other firearms, ammunition, and casings,
and any indicia of gang membership. In addition, the issuing
judge granted Tanore’s request that the search warrant be
endorsed for nighttime service “due to the severity of this
investigation and the fact that the subjects involved in this
investigation are all Tangas (Tanglewood) gang members,”
and based on Tanore’s belief that “the ability to obtain the
element of surprise with gang members will lessen the chance
20916 BRAVO v. CITY OF SANTA MARIA
for injury to the Officers, community, and the subjects we are
searching.”
Tanore’s affidavit listed Javier Jr.’s address as the Bravo
residence and contained a brief summary of Javier Jr.’s crimi-
nal history report, commonly known as a “rap sheet.” The
affidavit specifically noted Javier Jr.’s recent conviction for
violation of California Penal Code § 496(A), receiving stolen
property, but failed to mention that Javier Jr. had been sen-
tenced and was over six months into serving a two-year sen-
tence in state prison for that crime. Deposed in this litigation,
Tanore admits he obtained Javier Jr.’s criminal history from
his rap sheet and may have seen the two-year sentence entry,
which appeared just two lines below the conviction entry, but
does not recall with certainty whether he observed it or not.
He further testified that, in any event, even if he had seen the
sentence on Javier Jr.’s rap sheet, ordinarily it “wouldn’t be
something [he] would check into.”
Detective Lara testified that he called the Santa Barbara
County Sheriff’s Office (“SBSO”) substation, consistent with
standard SMPD practice, to ascertain the custody status of the
individuals named in the warrant application and was told by
an unidentified substation employee that Javier Jr. was not in
custody. Upon learning that James Franklin, another suspect
originally named in the warrant application, was in custody,
the officers removed his name from the application. No sub-
station employee, however, recalls receiving such a call from
Lara. Furthermore, several SBSO employees explained that
their database contains only information on persons in county
jail, not those in state prison, and that the only way to deter-
mine a person’s state custody status is to call the state prison
system’s Inmate Locator number. No SMPD officer claims to
have taken any other action to determine whether Javier Jr. or
any of the other named individuals was in state custody at the
time.
BRAVO v. CITY OF SANTA MARIA 20917
B. Executing the Warrant
The search warrant covered seven homes, several of which
were located in Tanglewood, an unincorporated area just out-
side the Santa Maria city limits and patrolled by the SBSO.
In order to execute the search warrant on all seven locations
simultaneously, the SMPD asked the SBSO to assist with
SWAT execution on two of the Tanglewood homes, including
the Bravo residence. SBSO agreed to use its Special Enforce-
ment Team, but ultimately determined it could not adequately
execute the warrant simultaneously on both Tanglewood resi-
dences. SBSO therefore asked the Santa Barbara Police
Department (“SBPD”) SWAT team to serve the warrant on
the Bravo residence and turned over all materials it had gath-
ered in the course of scouting the mission, which included
Javier Jr.’s criminal history, a record of his former encounters
with SBSO, and photographs of the Bravo residence.
The SBPD SWAT team participated in final briefings the
evening of April 25, 2006 and early in the morning of April
26, 2006 prior to serving the warrant on the Bravo residence.
Several SBPD officers testified that they were given a
detailed briefing during which they learned that Javier Jr. kept
a machete, had violently resisted arrest on a previous occa-
sion, and that thirty to forty individuals might be present in
the home. No mention was made of Javier Jr.’s custody status.
After the briefing, at approximately 5:30 am, the SBPD
SWAT team served the warrant. Allowing but a few seconds
between announcing their presence and breaching the door,
the SWAT team entered the Bravos’ home by shooting off the
front door locks and deploying two “flashbang” grenades, or
light-sound diversionary devices, outside the back door. Mr.
Bravo was sleeping in the living room and awoke to find three
masked officers dressed in black, pointing their guns at him.
Mrs. Bravo and then-eight-year-old E.B. awoke to the sounds
of people running and screaming and ran into the bathroom
for safety. An officer kicked the bathroom door open and
20918 BRAVO v. CITY OF SANTA MARIA
pointed a gun at them, shouting at them to lie flat with their
stomachs on the ground. After a few minutes, an officer told
Mrs. Bravo and E.B. they could get up and sit on the bed, at
which point Mrs. Bravo told them her son was in jail and that
they would find a recent letter from him on the dining room
table. The officers then instructed Mrs. Bravo and E.B. to join
Mr. Bravo in the living room.
After the SBPD SWAT team looked at Javier Jr.’s letter
from prison and realized he was not present, they stopped ask-
ing for him and turned the scene over to the SMPD to conduct
a search of the premises. The SMPD officers seized several
items from the home, including letters from Javier Jr., photo-
graphs, and drawings that Javier Jr. had completed in prison,
but no weapons. During this time, the Bravos remained
detained in their living room, but at no point did the SMPD
officers handcuff, strike, or touch the Bravos. At one point,
Mr. Bravo began experiencing chest pains, and officers
offered to call an ambulance, but Mr. Bravo did not want to
leave Mrs. Bravo and E.B. alone in the house. Altogether the
officers remained in the Bravos’ home for approximately
thirty minutes. Neither Detective Tanore nor Detective Lara
were involved in the actual execution of the warrant. They
learned of Javier Jr.’s custody status shortly after the warrant
was executed, but Detective Lara testified in his deposition
that he did not become aware that Javier Jr.’s two-year sen-
tence was listed on his rap sheet until after this litigation
began.
II. Procedural History
The Bravos brought suit under § 1983, § 1985, and a vari-
ety of state laws against the City of Santa Maria, Santa Bar-
bara County, the City of Santa Barbara, and individual
officers from each of the law enforcement agencies. After the
City of Santa Barbara Defendants appealed on qualified
immunity grounds from an adverse grant of summary judg-
BRAVO v. CITY OF SANTA MARIA 20919
ment,2 the Bravos settled with them, and those defendants
were dismissed from this suit.
On cross-motions for summary judgment, the district court
granted the City of Santa Maria Defendants and the County
of Santa Barbara Defendants summary judgment on all
claims. The Bravos timely appealed the § 1983 claims only.
The City of Santa Maria Defendants include Tanore, Santa
Maria Police Lieutenant Larry Ralston (“Ralston”), Santa
Maria Police Chief Denny R. Macagni (“Macagni”), and the
City of Santa Maria itself. The only remaining defendants
from the County of Santa Barbara are the County itself and
the SBSO.3
STANDARDS OF REVIEW
We review the district court’s grant of summary judgment
de novo. Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir.
2010). Viewing the evidence and drawing all inferences in the
light most favorable to the non-moving party, we must deter-
mine whether any genuine issues of material fact remain and
whether the district court correctly applied the relevant sub-
stantive law. Id.; see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 253 (1986). If a rational trier of fact could resolve
2
The district court granted summary judgment in favor of the Bravos
against the Santa Barbara police officers upon determining that the offi-
cers’ forcible entry into the Bravos’ home failed to comply with the
knock-and-announce requirements clearly established under the Fourth
Amendment and that the officers were not entitled to qualified immunity.
The district court did not find Monell liability against the City of Santa
Barbara. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
3
Although the Bravos’ original complaint names individual officers
from the SBSO, the Bravos neither opposed those individuals’ motions for
summary judgment below nor filed their own motion for summary judg-
ment against them, thereby waiving any right to appeal the district court’s
grants of summary judgment with respect to them. See Davis v. City of Las
Vegas, 478 F.3d 1048, 1058-59 (9th Cir. 2007); USA Petroleum Co. v.
Atlantic Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994).
20920 BRAVO v. CITY OF SANTA MARIA
a genuine issue of material fact in the nonmoving party’s
favor, the court “may not affirm a grant of summary judgment
. . . because credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Nelson v. City
of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (internal quota-
tion marks and alterations omitted).
DISCUSSION
I. Claims Against the City of Santa Maria Defendants
A. Invalid Search Warrant
[1] Just as the Fourth Amendment prohibits warrantless
searches generally, so too does it prohibit a search conducted
pursuant to an ill-begotten or otherwise invalid warrant. See
U.S. Const. amend. IV; Millender v. Cnty. of L.A., 620 F.3d
1016, 1024 (9th Cir. 2010) (en banc) (“Even when only a por-
tion of a search warrant is invalid, the subject of the search
suffers a constitutional violation.”). The Bravos argue that the
search warrant for their home was invalid because it was
obtained through the intentional or reckless omission of facts
“required to prevent technically true statements in the affida-
vit from being misleading.” Liston v. Cnty. of Riverside, 120
F.3d 965, 973 (9th Cir. 1997) (citing United States v. Stanert,
762 F.2d 775, 781, as amended, 769 F.2d 1410 (9th Cir.
1985)).
[2] To survive summary judgment on a claim of judicial
deception, a § 1983 plaintiff need not establish specific intent
to deceive the issuing court. See Lombardi v. City of El Cajon,
117 F.3d 1117, 1124 (9th Cir. 1997). Rather, the plaintiff
must (1) establish that the warrant affidavit contained misrep-
resentations or omissions material to the finding of probable
cause, and (2) make a “substantial showing” that the misrep-
resentations or omissions were made intentionally or with
reckless disregard for the truth. See Ewing v. City of Stockton,
BRAVO v. CITY OF SANTA MARIA 20921
588 F.3d 1218, 1223-24 (9th Cir. 2009); accord Butler v. Elle,
281 F.3d 1014, 1024 (9th Cir. 2002); Liston, 120 F.3d at 973-
74. If these two requirements are met, the matter must go to
trial. Liston, 120 F.3d at 973.
The district court concluded that the omission of Javier Jr.’s
custody status was not material and that in any event the Bra-
vos presented no evidence to support an inference of inten-
tional or reckless conduct on Tanore’s part. We disagree on
both counts.
1. A Material Omission
We review de novo the district court’s conclusion that Tan-
ore’s omission of Javier Jr.’s custody status was not material
to a finding of probable cause. See id.; Butler, 281 F.3d at
1024 (“Materiality is for the court . . . .” (citing Hervey v.
Estes, 65 F.3d 784, 789 (9th Cir. 1995))). To determine the
materiality of omitted facts, we consider “whether the affida-
vit, once corrected and supplemented, establishes probable
cause.” Ewing, 588 F.3d at 1224; accord Liston, 120 F.3d at
973. If probable cause remains after amendment, then no con-
stitutional error has occurred. See Ewing, 588 F.3d at 1224;
Liston, 120 F.3d at 973-74.
[3] Here, the affidavit on its face easily established a “fair
probability” that the evidence sought would be found, had
Javier Jr. actually resided at the Bravo residence. See Illinois
v. Gates, 462 U.S. 213, 238 (1983). Tanore verified that the
Bravo home was Javier Jr.’s last-known residence based on
DMV records, prior search warrants, SBSO records, and the
confidential informants’ personal knowledge. See Liston, 120
F.3d at 973 (finding that the utility records, officer surveil-
lance, and DMV records included in a warrant application
ordinarily would have provided a sufficient basis for estab-
lishing probable cause). Furthermore, Tanore permissibly
relied on the witnesses’ confidential information regarding the
Tangas’ practice of storing weapons for one another, which
20922 BRAVO v. CITY OF SANTA MARIA
was consistent with his own expertise and knowledge of the
gang’s operations. Finally, Tanore had probable cause to
believe Javier Jr. was affiliated with the Tangas based not
only on the confidential informants’ tips, but also on SBSO
records verifying Javier Jr.’s criminal history in connection
with other Tangas gang members. The district court therefore
properly rejected the Bravos’ alternative argument that, even
absent judicial deception, the warrant lacks sufficient indicia
of reliability and is facially invalid due to lack of particularity.
[4] Nonetheless, we must ask whether probable cause
remains once the affidavit is supplemented with the chal-
lenged omission—here, Javier Jr.’s two-year sentence
imposed over six months prior to the incident occasioning the
search warrant, and his consequent incarceration in state
prison at the time of the drive-by shooting and of the war-
rant’s execution. We conclude that the corrected affidavit
could not establish probable cause for the search and espe-
cially does not meet the heightened standard of justification
required for nighttime SWAT service.4
[5] The district court reasoned that Javier Jr.’s presence
was immaterial because the warrant was not for his arrest but
only to search for evidence related to the April 21 shooting.
This fact, however, was highly material to the search, which
authorized the seizure of evidence relating to the April 21
shooting. Javier Jr.’s custody status meant not only that he
would not be present in the Bravo residence at the time of the
search, but that he could not have been involved in the shoot-
4
In addition to faulting omission of Javier Jr.’s two-year state prison
sentence, the Bravos assert error in a variety of other omissions that
resulted in a failure to show: (1) when Javier Jr. actually lived at the Bravo
residence; (2) that past searches for Javier Jr. at the Bravo residence had
been conducted years earlier; (3) that Javier Jr. did not have a current driv-
er’s license; and (4) that SMPD records did not identify Javier Jr. as a
gang member in his “Mugshot Profile.” While these facts bear on the exis-
tence of probable cause, the district court did not err in concluding that
none is on its own material for purposes of a judicial deception claim.
BRAVO v. CITY OF SANTA MARIA 20923
ing or in concealing the evidence. Tanore had no evidence
that Mr. and Mrs. Bravo or E.B. were involved in the April
21 shooting or that during a period in which Javier Jr. was not
residing in their home they would have assisted Tangas gang
members in concealing evidence, and specifically in conceal-
ing evidence from the shooting. The generalized statements in
the affidavit that it is “common” for families of gang mem-
bers to assist other members of the gang are insufficient to
support probable cause to search the Bravos’ home. See
United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir.
2011) (stating that “an assumption that most sixteen-year-old
passengers have identification does not lead to probable cause
to search every car carrying a teenager absent some individu-
alized suspicion regarding the teenager, the vehicle in ques-
tion, and the crime at issue”); United States v. McCarty, 648
F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are
ordinarily unreasonable in the absence of individualized sus-
picion of wrongdoing, and the circumstances under which a
warrantless search not supported by probable cause may be
considered reasonable under the Fourth Amendment are very
limited.”) (internal quotation marks and citations omitted).
[6] Moreover, the warrant also authorized the search of
any and all firearms, ammunition, casings, cartridges, clean-
ing equipment, or scabbard of any type of firearm found on
the premises during the warrant’s execution, and any indicia
of gang membership or affiliation with any gang, including
writings, photographs, news clippings, or videos depicting
persons, vehicles, weapons, clothing, handsigns, or locations
appearing relevant to gang membership. Defendants’ only
basis for seizing indicia of gang association and weapons
other than the caliber handguns suspected of use in the drive-
by shooting was to gather evidence of Javier Jr.’s suspected
violation of California Penal Code § 186.22(a) (“Street Ter-
rorism Enforcement and Prevention Act”). That statutory pro-
vision makes guilty of a felony any person who “actively
participates in any criminal street gang with knowledge that
its members engage in or have engaged in a pattern of crimi-
20924 BRAVO v. CITY OF SANTA MARIA
nal gang activity, and who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that
gang,” as defined in § 186.22(f). Cal. Penal Code § 186.22(a).
Probable cause must support the search for and seizure of all
items described in the warrant. See Millender, 620 F.3d at
1024. Tanore had no evidence that Mr. and Mrs. Bravo or
E.B. were gang members of any kind. Probable cause to
search broadly for any and all guns, ammunition, and indicia
of gang affiliation therefore was predicated entirely on Javier
Jr.’s own suspected involvement in hiding weapons for other
gang members.
[7] Furthermore, once the affidavit was corrected and sup-
plemented with the missing information about Javier Jr.’s cus-
tody status, even if we were to conclude that cause existed for
a search, there would still be no basis for authorizing night-
time service. A nighttime incursion by a SWAT force is a far
more serious occurrence than an ordinary daytime intrusion
pursuant to a regular warrant and therefore requires higher
justification beyond mere probable cause to search. See
United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir.
2004) (“[T]he mere likelihood that drugs or weapons will be
found at a particular premises does not justify a no-knock or
nighttime execution of a search warrant.”). Were this not the
case, then any showing of probable cause to search would jus-
tify nighttime intrusion by a team of SWAT officers. The
Supreme Court has held clearly that a no-knock entry is justi-
fied only by “exigent circumstances,” which include when
officers “have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing
the destruction of evidence.” Richards v. Wisconsin, 520 U.S.
385, 394 (1997).
[8] We see no reason not to apply the same standard to
SWAT officers’ nighttime searches, which both constitute
much greater intrusions on one’s privacy than ordinary day-
BRAVO v. CITY OF SANTA MARIA 20925
time searches and carry a much higher risk of injury to per-
sons and property. See Alexander v. City & Cnty. of San
Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994) (explaining
that a jury might conclude that deployment of a SWAT team
for the purpose of inspecting property was excessive); Estate
of Smith v. Marasco, 430 F.3d 140, 149 (3d Cir. 2005) (“[A]
decision to employ a SWAT-type team can constitute exces-
sive force if it is not objectively reasonable to do so in light
of the totality of the circumstances.” (internal quotation marks
omitted)); Holland ex rel. Overdorff v. Harrington, 268 F.3d
1179, 1190 (10th Cir. 2001) (“[T]he decision to deploy a
SWAT team to execute a warrant must be ‘reasonable’
because it largely determines how the seizure is carried out,
thereby determining the extent of the intrusion on the individ-
ual’s Fourth Amendment interests.”); Rush v. Mansfield, 771
F. Supp. 2d 827, 858-59 (N.D. Ohio 2011); Solis v. City of
Columbus, 319 F. Supp. 2d 797, 808-09 (S.D. Ohio 2004).
[9] Had Javier Jr.’s incarceration been disclosed and prob-
able cause for a search still existed, no reasonable cause for
nighttime service would have remained under the totality of
the circumstances. Defendants argue that disclosing Javier
Jr.’s two-year sentence would not be dispositive of his cus-
tody status because presentence credits and good time or work
credits might have resulted in an earlier release date. But the
appropriate inquiry is not whether Javier Jr.’s two-year sen-
tence dispositively “established” he was still in custody, but
rather whether that fact would have prompted the issuing
judge to “requir[e] additional information” or “impos[e] spe-
cific restrictions on [the warrant’s] execution.” Liston, 120
F.3d at 974.
In Liston, the Court found that an officer’s failure to dis-
close in a search warrant application the presence of “For
Sale” and “Sold” signs on the target property constituted a
material omission. Although the signs on their own may not
have established dispositively that the house belonged to new
owners, they would have “put a reasonable magistrate on
20926 BRAVO v. CITY OF SANTA MARIA
notice that a change in occupancy would be occurring in the
near future.” Id. Similarly here, disclosure of Javier Jr.’s two-
year sentence would have put the issuing judge on notice that
Javier Jr. could still be in custody. Had the omitted facts of
Javier Jr.’s two-year sentence and custody status been
included, it is extremely doubtful that an issuing judge would
simply have issued the warrant or authorized nighttime ser-
vice without more information. See id.
Finally, the defendants’ reliance on Motley v. Parks, 432
F.3d 1072 (9th Cir. 2005) (en banc), is misplaced. Motley did
not hold that custody status is immaterial to whether officers
have probable cause to search a person’s residence; indeed,
probable cause to search was not at issue in that case. Motley
held only that where a parolee has consented to warrantless
searches of his residence and property at any time as a condi-
tion of his parole, law enforcement has a constitutional obli-
gation to ensure they have probable cause to believe they are
at the right house. Id. at 1079-80. Javier Jr. was not a parolee,
and no resident of the Bravo home consented to a warrantless
search. Motley therefore does not absolve defendants of their
constitutional obligation to establish probable cause to search
for all items described in the search warrant.
2. Intentional or Reckless
We next consider whether the Bravos have made a substan-
tial showing that Tanore deliberately or recklessly omitted
Javier Jr.’s custody status. Viewing the evidence and drawing
all inferences in the light most favorable to the Bravos, as we
must, we conclude that the district court erred in finding Tan-
ore “negligent at most.”
To survive summary judgment, the Bravos need only make
a substantial showing of a deliberate or reckless omission, not
provide “clear proof.” Liston, 120 F.3d at 974 (internal quota-
tion marks omitted). Summary judgment is improper where
“there is a genuine dispute as to the facts and circumstances
BRAVO v. CITY OF SANTA MARIA 20927
within an officer’s knowledge or what the officer and claim-
ant did or failed to do.” Hopkins v. Bonvicino, 573 F.3d 752,
763 (9th Cir. 2009) (internal quotation marks and citation
omitted); see Butler, 281 F.3d at 1024 (“[S]tate of mind is for
the jury.” (citing Hervey, 65 F.3d at 789)).
[10] The Bravos have made the required substantial show-
ing that Tanore may have intentionally or recklessly omitted
Javier Jr.’s two-year sentence from his affidavit. Tanore stated
in his deposition testimony that he reviewed Javier Jr.’s rap
sheet in preparing the affidavit, and though he could not recall
with certainty whether he had observed Javier Jr.’s two-year
sentence, imposed on September 9, 2005, he acknowledged
that he may have. The two-year sentence appears on the rap
sheet a mere two lines below the “convicted” disposition for
the predicate offense of receiving stolen property in violation
of California Penal Code § 496(A)—a fact Tanore thought
important enough to include in his affidavit.
[11] For summary judgment review purposes, the Bravos
are entitled to the reasonable inference that Tanore in fact
observed the two-year sentence on the rap sheet and either
deliberately or recklessly failed to disclose it in his affidavit.
Tanore’s testimony that, even if he had observed the state
prison sentence on Javier Jr.’s rap sheet, it ordinarily
“wouldn’t be something [he] would check into,” underscores
his apparent disregard for the importance of full disclosure of
information to the issuing magistrate. Finally, although he
claims that, in this instance, he actually did look into the war-
rant targets’ custody status by having Detective Lara call the
SBSO substation and ask the custody officer to “run the
names” of the targets, the Bravos submitted evidence contra-
dicting such claims: no custody officer who was working dur-
ing the relevant time period recalls receiving a call from Lara.
And SBSO custody officers declared that, even if they had
received such a request, their standard database search would
reveal only whether the subject was currently in county jail,
not whether that person had been transferred to state prison.
20928 BRAVO v. CITY OF SANTA MARIA
Based on this record, a reasonable jury could conclude that
Tanore intentionally or recklessly omitted the two-year-
sentence information from the affidavit, and the Bravos pre-
sented ample evidence to support that inference. In opposing
summary judgment, the Bravos submitted deposition testi-
mony by Lieutenant Ralston, who stated “that a reasonably
competent police officer, had he seen [the two-year sentence
on Javier Jr.’s rap sheet], would have done additional follow-
up.” Ralston further testified that he told Tanore and Lara he
“was disappointed that they didn’t pay attention to [the two-
year sentence] or didn’t see it” because he thought it was
“pertinent to the investigation,” “was something that should
have been observed,” and was “important to know . . . .
Important enough to tell the judge when you were seeking the
warrant.” Similarly, the SBSO Sheriff’s Commander testified
that “if the reason for the gang association warrant was
because [Javier Jr.] was associated with that residence and I
knew that he was not, in fact, there, that he was in prison, I’d
ask a lot more questions about the warrant and the people who
lived there and do some more background checks and find out
why, in fact, that residence had been identified as a possible
search warrant.” All this and other evidence in the record sug-
gests that Tanore’s omission of this material fact was more
than “mere negligence.”
[12] Given the importance of the custody status to the find-
ing of probable cause for the search and to the justification for
nighttime service, a reasonable jury could conclude that Tan-
ore’s failure to mention Javier Jr.’s two-year sentence or to
follow up and inquire about Javier Jr.’s custody status
amounted to at least reckless disregard for the truth. Summary
judgment was therefore improperly granted.
B. Unreasonable Manner of Execution
The Bravos also seek to hold the Santa Maria Defendants
liable for the unreasonable manner in which the SBPD SWAT
team served the warrant, arguing that the manner of execution
BRAVO v. CITY OF SANTA MARIA 20929
was a “natural consequence[ ]” of SMPD’s decisions to
employ nighttime SWAT service. Lee v. Gregory, 363 F.3d
931, 935 (9th Cir. 2004) (holding a police officer responsible
for plaintiff ’s unlawful arrest even though he passed the war-
rant on to another officer); see also Liston, 120 F.3d at 981
n.13 (noting that an officer’s liability for the unlawful acts of
those who execute a warrant he obtained by judicial deception
“is governed by traditional tort law principles” (citing Van
Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)).
The Santa Maria Defendants vigorously contest this claim,
insisting they had no control or direction over the manner in
which SBPD served the warrant on the Bravo residence.
[13] Because the district court determined that the search
warrant was valid, it had no occasion to consider this ques-
tion. Rather than address it now, we remand for the district
court to consider in the first instance the extent to which the
Santa Maria Defendants might be liable for the warrant’s
unlawful manner of execution, even though service was made
by a different law enforcement agency acting in concert with
the SMPD. We recognize that “[t]ypically, of course, only one
or a few officers plan and lead a search, but more—perhaps
many more—help execute it.” Motley, 432 F.3d at 1081
(internal quotation marks omitted). However, while the offi-
cers tasked with executing a warrant are “generally entitled to
rely on information obtained from fellow law enforcement
officers” so long as such reliance is objectively reasonable,
id., “[t]he officers who lead the team that executes a warrant
are responsible for ensuring that they have lawful authority
for their actions” and cannot evade liability simply by dele-
gating responsibility to others, id.
[14] The district court did consider and reject the Bravos’
claim that the SMPD officers unlawfully detained them while
continuing to search their home, even after learning that
Javier Jr. was in custody, concluding that the “temporary
detention of the Bravos, while undoubtedly frightening and
humiliating to them, was a routine detention of residents in a
20930 BRAVO v. CITY OF SANTA MARIA
house while it was being searched for contraband pursuant to
a valid warrant.” To the extent the district court’s holding
regarding the lawfulness of the search rests on the premise
that SMPD officers were acting pursuant to a valid warrant,
it is remanded for further consideration in light of this Opin-
ion.
If a jury finds that Tanore intentionally or recklessly with-
held information about Javier Jr.’s custody status from the
issuing magistrate, the district court should apply traditional
tort law principles to determine the extent to which the Santa
Maria Defendants are liable for any constitutional injuries the
Bravos may have suffered as a “natural consequence[ ]” of the
judicial deception. Lee, 363 F.3d at 935 n.3; see Malley, 475
U.S. at 345 n.7 (rejecting an argument that “the judge’s deci-
sion to issue the warrant breaks the causal chain between the
application for the warrant and the improvident arrest”
because “the common law recognized the causal link between
the submission of a complaint and an ensuing arrest”); Mon-
roe v. Pape, 365 U.S. 167, 187 (1961) (“Section [1983]
should be read against the background of tort liability that
makes a man responsible for the natural consequences of his
actions.”), overruled on other grounds by Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978); Crumpton v. Gates, 947
F.2d 1418, 1423 (9th Cir. 1991) (observing that “[t]he
Supreme Court has sanctioned the resort to tort analogies in
establishing the elements of a section 1983 cause of action”);
Liston, 120 F.3d at 981 n.13; Restatement (Second) of Torts
§ 8A cmt. b (1965) (“If the actor knows that the consequences
are certain, or substantially certain, to result from his act, and
still goes ahead, he is treated by the law as if he had in fact
desired to produce the result.”).
C. Individual and Municipal Liability
The Bravos sued Tanore, Ralston, and Macagni in their
individual capacities and the City of Santa Maria under sev-
eral municipal liability theories. Because the district court did
BRAVO v. CITY OF SANTA MARIA 20931
not have occasion to reach these issues, we do not address
them here. See Golden Gate Hotel Ass’n v. City & Cnty. of
San Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994) (“As a
general rule, ‘a federal court does not consider an issue not
passed upon below.’ ”) (quoting Singleton v. Wulff, 428 U.S.
106, 120 (1976)).
II. Claims Against the County of Santa Barbara
Defendants5
A. Integral Participation
[15] The Bravos also contend that SBSO agents are liable
for the unreasonable manner in which the warrant was exe-
cuted by the SBPD SWAT team, arguing that the SBSO’s role
in initially scouting the Bravo residence amounted to “integral
participation” in the unlawful search. Their argument is with-
out merit.
Section 1983 liability extends to those who perform func-
tions “integral” to an unlawful search, even if their individual
actions do not themselves rise to the level of a constitutional
violation. See Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th
Cir. 2004); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.
1996). However, the “integral participant” doctrine does not
5
We have jurisdiction over the appeal concerning the County of Santa
Barbara Defendants pursuant to 28 U.S.C. § 1291. Even though the district
court failed to issue and enter on the docket a separate judgment on the
order granting the County of Santa Barbara Defendants summary judg-
ment, as was required, see Fed. R. Civ. P. 58(a)(1), 79(a), the district
court’s September 25, 2008 Order granting summary judgment “in favor
of all County Defendants . . . on all claims” and containing no equivocal
language regarding its finality (1) is a “full adjudication of the issues,” and
(2) “clearly evidences the judge’s intention that it be the court’s final act
in the matter.” Casey v. Albertson’s, Inc., 362 F.3d 1254, 1258 (9th Cir.
2004); accord Long v. Cnty. of L.A., 442 F.3d 1178, 1184 n.3 (9th Cir.
2006). “[N]either the Supreme Court nor this court views satisfaction of
Rule 58 as a prerequisite to appeal.” Kirkland v. Legion Ins. Co., 343 F.3d
1135, 1140 (9th Cir. 2003).
20932 BRAVO v. CITY OF SANTA MARIA
implicate government agents who are “mere bystanders” to an
unconstitutional search. Compare Blankenhorn v. City of
Orange, 485 F.3d 463, 481 n.12 (identifying as an integral
participant an officer who helped in handcuffing the plaintiff);
Boyd, 374 F.3d at 780 (same for officers who were “aware of
the decision to use the flash-bang, did not object to it, and par-
ticipated in the search operation knowing the flash-bang was
to be deployed”); James ex rel. James v. Sadler, 909 F.2d
834, 837 (5th Cir. 1990) (same for officers who provided
armed backup during unconstitutional search); Melear v.
Spears, 862 F.2d 1177, 1186 (5th Cir. 1989) (same for officer
who did not enter apartment but stood armed at the door dur-
ing the search); with Torres v. City of Los Angeles, 548 F.3d
1197, 1206 (9th Cir. 2008) (finding that an officer who nei-
ther instructed others to make the arrest nor was present dur-
ing the arrest was not an integral participant); Blankenhorn,
485 F.3d at 481 n.12 (same for an officer who arrived at the
scene after completion of allegedly unlawful arrest and an
officer who provided at most crowd control); Motley, 432
F.3d at 1082 (same for an officer who remained primarily in
the living room during an allegedly unlawful bedroom
search).
The district court correctly determined that SBSO agents
were “not even bystanders” to the search of the Bravo resi-
dence. The undisputed evidence establishes that no SBSO
agents were present during either the SBPD SWAT team’s
entry into the Bravos’ residence or the SMPD officers’ subse-
quent search of the property. To the contrary, the undisputed
evidence establishes SBSO’s own Special Enforcement Team
was at the exact same time executing the warrant for a differ-
ent Tanglewood residence. It is further undisputed that SBSO
neither had tactical command over service of the warrant on
the Bravo residence nor supervised the SBPD SWAT agents
in their execution of the warrant.
SBSO’s short-lived role with respect to the Bravo residence
was limited to conducting a background investigation on
BRAVO v. CITY OF SANTA MARIA 20933
Javier Jr. before handing responsibility for execution of the
warrant over to SBPD. “ ‘Effective and efficient law enforce-
ment requires cooperation and division of labor to function,”
and SBSO was “entitled to rely on information obtained from
[SMPD]” when it received the request to assist with nighttime
SWAT service of the Bravo residence warrant. Motley, 432
F.3d at 1081 (citing Whiteley v. Warden, 401 U.S. 560, 568
(1971)). SBSO was responsible neither for the decisions to
use SWAT forces and nighttime service nor for the specific
tactical decision to perform a no-knock entry, and thus it can-
not be liable for the constitutional violations that may have
occurred in the course of the warrant’s execution.6
B. Monell Liability
[16] The Bravos accuse the SBSO and the County of Santa
Barbara of maintaining a policy that permitted the unreason-
able use of SWAT tactics in violation of their Fourth Amend-
ment rights. However, because the Bravos fail to establish a
triable issue of fact as to any individual SBSO officer’s liabil-
ity under § 1983 for unconstitutional conduct, a fortiori, they
cannot establish that a policy or practice of the SBSO caused
any such constitutional violation. See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (per curiam); Simmons v.
Navajo Cnty., 609 F.3d 1011, 1021 (9th Cir. 2010).
CONCLUSION
For the foregoing reasons, the summary judgment grant is
reversed with respect to Tanore and the case remanded for
further proceedings consistent with this Opinion, including
determining whether the Santa Maria Defendants may be lia-
6
While the Bravos attempt to restyle their “integral participation” claim
in their Reply Brief as one of supervisorial liability or proximate cause,
akin to the one they make against the City of Santa Maria Defendants,
they failed to make this argument below and it is deemed waived.
20934 BRAVO v. CITY OF SANTA MARIA
ble for the warrant’s unlawful execution. In all other respects,
the judgment of the district court is affirmed.7
AFFIRMED in part, REVERSED in part, and
REMANDED. Each party to bear its own costs on appeal.
7
All pending motions are denied.