FILED
NOT FOR PUBLICATION DEC 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIANNE PANAGACOS; MALLORY No. 11-35527
HAGEL; STEPHANIE SNYDER; EMILY
COX; KIM CHAPLIN; MOLLY D.C. No. 3:10-cv-05018-RBL
PORTER; FIBIOLA ROMERO;
ANDREA ROBBINS; JULIA
GARFILED; ERAN RHODES; ELI MEMORANDUM*
EVANS; CHRIS GRANDE; DAVI RIOS;
BRENDAN DUNN; GLENN CRESPO;
JEFFREY BERRYHILL,
Plaintiffs - Appellees,
v.
JOHN J TOWERY; CLINTON D
COLVIN,
Defendants,
and
THOMAS R RUDD,
Defendant - Appellant.
JULIANNE PANAGACOS; MALLORY No. 11-35538
HAGEL; STEPHANIE SNYDER; EMILY
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
COX; KIM CHAPLIN; MOLLY D.C. No. 3:10-cv-05018-RBL
PORTER; FIBIOLA ROMERO;
ANDREA ROBBINS; JULIA
GARFILED; ERAN RHODES; ELI
EVANS; CHRIS GRANDE; DAVI RIOS;
BRENDAN DUNN; GLENN CRESPO;
JEFFREY BERRYHILL,
Plaintiffs - Appellees,
v.
JOHN J TOWERY,
Defendant - Appellant,
and
CLINTON D COLVIN; THOMAS R
RUDD,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted November 5, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, Senior
District Judge.**
**
The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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Defendants John Towery and Thomas Rudd appeal from the district court’s
partial denial of their motions to dismiss the plaintiffs’ Third Amended Complaint
(“TAC”). The district court granted defendants’ motions to dismiss all claims
against them in the first eight counts of the TAC. The ninth and last count alleged
claims under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The district court dismissed the Bivens claims
under the ninth count based on alleged violations of the Fifth, Sixth, and
Fourteenth Amendments, but it refused to dismiss the First and Fourth Amendment
claims. It rejected defendants’ arguments — made for the first time after the filing
of the TAC — that plaintiffs’ First and Fourth Amendment allegations were not
plausible and that defendants were entitled to qualified immunity. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s denial of qualified immunity on a Rule
12(b)(6) motion to dismiss. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).
We must “assume all factual allegations are true and construe them in the light
most favorable to the plaintiff.” Cervantes v. United States, 330 F.3d 1186, 1187
(9th Cir. 2003). The complaint “must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citations omitted) (quoting Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To overcome qualified
immunity, plaintiffs must allege that defendants violated plaintiffs’ clearly
established constitutional rights. Moss v. U.S. Secret Service, 675 F.3d 1213, 1222
(9th Cir. 2012).
The TAC alleges that Towery infiltrated plaintiffs’ peaceful anti-war protest
group in order to spy on and disrupt plaintiffs’ activities. The TAC alleges, for
example, that Towery identified plaintiffs to others in order to facilitate their arrest
without probable cause. Rudd allegedly directed Towery’s efforts and compiled
Towery’s intelligence in reports that he disseminated to other government actors.
Both men allegedly coordinated with law-enforcement agencies to plan and
implement strategies designed to silence the protestors.
The district court correctly determined that these allegations are plausibly
supported by sufficient factual detail and must be presumed true. See Iqbal, 556
U.S. at 678. The TAC gives examples of specific times and places that Towery
spied on plaintiffs’ meetings. It alleges that defendants met with specifically
identified law-enforcement officers and agencies, and identifies specific time
frames when these meetings occurred. These factual allegations are sufficient to
“give fair notice and to enable the opposing party to defend itself effectively.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). As the district court noted,
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Towery and Rudd’s direct involvement in information gathering and reporting
distinguishes this case from Iqbal, where conclusory allegations about the high-
level government defendants’ involvement were “not entitled to be assumed true.”
Iqbal, 556 U.S. at 680–81.
Plaintiffs have pled a plausible violation of their clearly established First
Amendment rights. Plaintiffs have alleged that defendants “deterred or chilled the
plaintiff's political speech” and that such deterrence motivated defendants’
conduct. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.
1999) (internal quotations and alterations omitted). As a result of defendants’
information sharing and coordination with local law enforcement, plaintiffs were
allegedly arrested without probable cause. These arrests allegedly disrupted
plaintiffs’ peaceful protests and deterred their political speech. The TAC’s
allegations also support a plausible inference that defendants were motivated by an
impermissible intent to disrupt plaintiffs’ speech activities. Given plaintiffs’ strong
anti-war message and defendants’ alleged illegal actions in purposefully
facilitating a campaign of false arrests, it is plausible that Towery and Rudd were
motivated by a desire to silence the protesters and not just by a desire to protect
military shipments. See Starr, 652 F.3d at 1216. Finally, it is clearly established
that intentionally enabling arrests without probable cause in order to suppress
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speech violates the First Amendment. See Beck v. City of Upland, 527 F.3d 853,
863–64 (9th Cir. 2008); Mendocino Envtl. Ctr., 192 F.3d at 1300.
Plaintiffs have also pled plausible violations of their clearly established
Fourth Amendment rights. It is clearly established that facilitating arrests without
probable cause violates the Fourth Amendment. See, e.g., Beck, 527 F.3d at
863–64. The district court also correctly determined that the TAC’s allegations
that Towery coordinated with local police to covertly break into a private listserve
plausibly describe an unconstitutional search.
AFFIRMED.
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