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Ninth Circuit:
Immunity Shields Police
Chief for Doxxing Federal Agents
Opinion Says Allegations That Plaintiffs’ Home Address Was
Publicized in Retaliation for Filing Lawsuit Over Search of
Residence Was Not So ‘Obviously Unconstitutional” as to Defeat Protection
By a MetNews Staff Writer
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JOHN
E. PEREZ |
The Ninth U.S. Circuit Court of Appeals held Friday that allegations by federal law enforcement agents that the chief of a local police department publicly released their home address in retaliation for their having filed a state court action against the agency did not assert such an obvious infringement of their constitutional rights as to undermine qualified immunity.
On July 31, 2020, Keith Anderson and Lorena McCaigue filed a complaint in Los Angeles Superior Court against then-Pasadena Police Department Chief John E. Perez (who was retired as of January 2022), the City of Pasadena, and various individual officers relating to a warrantless search of their apartment. The July 22, 2019 search was conducted in response to a hoax 911 phone call claiming someone at their residence was about to commit suicide.
During the search, officers purportedly opened drawers and looked through the couple’s personal effects in addition to searching for the allegedly suicidal reporting party, who identified himself as “Jose Santerio.” No one by that name lived at the address.
After a local newspaper—Pasadena Now—published an article about the ordeal, Perez responded with a press release that did not identify the names of the plaintiffs but did provide links to body camera footage and other media that disclosed the location of their home. Perez insists that he issued the release to provide transparency and not to retaliate against the couple.
Federal Action
Anderson and McCaigue then filed the present federal action asserting claims under 42 U.S.C. §1983, alleging that Perez and the city violated their First and Fifth Amendment rights under the U.S. Constitution, and a violation of the state Bane Act, codified at Civil Code §52.1. The Bane Act protects against interference with a party’s civil rights by acts of violence, threats, or intimidation.
The complaint alleges:
“After receiving Plaintiffs’ Claims Against The City of Pasadena and in retaliation for petitioning the CITY to redress Plaintiffs’ grievances, on or about July 6, 2020, Defendant CHIEF PEREZ and subordinates under his control posted the home address and information of Plaintiffs on the Internet without obtaining written permission of Plaintiffs in violation of California Government Code § 6254.21. Defendant CHIEF PEREZ knew Plaintiffs are and/or were federal criminal investigators…but…intentionally posted Plaintiffs’ private information knowing that imminent great bodily harm would likely occur to Plaintiffs, and additionally Defendant CHIEF PEREZ used the posting as a threat to cause imminent great bodily harm to Plaintiffs if Plaintiffs proceeded forward with their lawful right to file a lawsuit based upon the facts alleged in their California Government Tort Claims submitted to Defendant CITY.”
Perez asserted qualified immunity as a defense and all defendants moved to strike the Bane Act claim under California’s anti-SLAPP law, codified at Code of Civil Procedure §425.16.
Senior District Court Judge John A. Kronstadt of the Central District of California denied the motions.
Circuit Judges Ryan D. Nelson, Eric D. Miller, and Roopali H. Desai signed Friday’s memorandum decision reversing the denials.
Qualified Immunity
The judges said that “[q]ualified immunity protects government officials from liability under § 1983 unless they violated a federal right and ‘the unlawfulness of their conduct was clearly established at the time.’ ” A plaintiff attempting to overcome an assertion of immunity will typically be required to cite a specific case establishing that actions by police are unlawful.
Conceding an absence of case law establishing that the publication of a press release—that does not contain their names but does link to media revealing their address—was clearly unlawful, the plaintiffs argue instead that Perez’s actions amounted to retaliation against them for exercising their First Amendment rights which was so “obviously unconstitutional” that they are exempted from pointing to jurisprudence directly on point.
Acknowledging that circumstances may exist where a violation is so fundamental that immunity may be overcome even absent case law expressly establishing the unlawfulness of the behavior, the panel quoted the 2023 Ninth Circuit opinion, authored by Nelson, in Waid v. County of Lyon which emphasized that “such obvious cases are rare.”
The jurists opined:
“[H]ere, the Andersons do not allege the ‘exceedingly rare circumstances with extreme facts’ necessary to overcome their burden to identify clearly established law….Thus, Chief Perez is entitled to qualified immunity.”
Bane Act
Sec. 425.16(b)(1) provides that a defendant may file a special motion to strike a “cause of action against a person arising from any act of that person in furtherance of the person’s right of…free speech.” Contending that the press release was protected speech, the defendants filed a motion under the section to strike the Bane Act claim.
The jurists said that “[t]o survive [the] motion to strike, the [plaintiffs] must show a probability of prevailing on their Bane Act claim” and turned to the requirements to state such a cause of action. They wrote:
“The Bane Act prohibits individuals from using ‘threat[s], intimidation, or coercion’ to interfere with another person’s federal or state-law rights….But ‘[s]peech alone is not sufficient to support an action’ under the Bane Act….And the Andersons’ Bane Act claim stems from Chief Perez’s press release. There is an exception to §52.1(k)’s bar against Bane Act claims that rely on pure speech when the speech itself threatens violence, but the Andersons do not argue that Chief Perez’s press release satisfies it.”
Continuing, the panel said:
“Instead, the Andersons argue that Chief Perez engaged in ‘conduct,’ not ‘speech,’ because he ‘posted online the Andersons’ home address’ by embedding a video link into the press release. We are unpersuaded: ‘[O]nline speech stands on the same footing as other speech.’….As a result, the Andersons have no probability of prevailing on their Bane Act claims, and the district court should have granted Appellants’ anti-SLAPP motion.”
The case is Anderson v. Perez, 23-2790.
Judgment was entered on Sept. 2, 2023 in favor of the city and officers in the state court action before Los Angeles Superior Court Judge Lia Martin. That case is Anderson v. City of Pasadena, 20STCV28881.
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