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Government Official's Immunity
( Kilroy v. State of California)

Government Official's Immunity
( Kilroy v. State of California)

III

42 U.S.C. Section 1983

     The trial court concluded that Paulus is entitled to qualified immunity on plaintiffs’ 42 United States Code section 1983 claim.  Plaintiffs argue that immunity is not available to Paulus “because of his bad faith and malice.”  However, this contention is premised on the findings made by Judge Karlton.  Plaintiffs presented no independent evidence of bad faith or malice.  They relied solely on the omissions from the search warrant affidavit.  However, as we will explain, those omissions were not material. 

     “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 410].)  Under this standard, if an officer seeking a warrant “‘submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, . . . he cannot be said to have acted in an objectively reasonable manner,’ and the shield of qualified immunity is lost.”  (Branch v. Tunnell (9th Cir. 1991) 937 F.2d 1382, 1387.) 

     Although adopted in a criminal context, the standard of Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] is used to determine the scope of qualified immunity in a civil rights action.  (Branch v. Tunnell, supra, 937 F.2d at p. 1387.)  To survive a motion for summary judgment based on a claim of qualified immunity, the plaintiff must establish that after excluding false information from the affidavit and including omitted information, “the remaining information in the affidavit is insufficient to establish probable cause.”  (Lombardi v. City of El Cajon, supra, 117 F.3d at pp. 1123-1124.)  We review de novo the trial court’s findings in this regard.  (U.S. v. Hernandez (9th Cir. 1996) 80 F.3d 1253, 1260, disapproved on other grounds in U.S. v. Foster (9th Cir. 1999) 165 F.3d 689, 692, fn. 5.) 

     The affidavit here failed to include that Carl Droivold recanted his statement that he paid $1,500 for the truck; that citizen complaints were filed against Paulus; that registration fees were owed by Hines; the price Hines paid for the truck; the truck’s mileage; and that Droivold claimed that the truck was in poor condition and that he put $5,000 of parts and labor into it.  Although the affidavit also did not mention that there were two versions of the CHP form 180, there is no evidence that Paulus was aware of this fact. 

     Plaintiffs argue that this case “presents a complicated factual situation, in which the issues that are likely to prove dispositive are hotly disputed.”  We disagree.  Assuming plaintiffs can establish that Paulus knowingly or recklessly excluded any of the foregoing information from the affidavit, that information had little or no bearing on the issue of probable cause.  Kilroy’s Towing was being investigated for making a false statement on a Department of Motor Vehicles form for the sale of Hines’s truck.  The important facts were that the form listed the sale price at $300, but Carl Droivold and his wife said that Carl paid much more for it.  Hines said that Kent Kilroy had demanded $2,150 from him for release of the truck, and Kent Kilroy downplayed his relationship with Carl Droivold, thereby hiding a motive for minimizing the sale price.   This information suggested an attempt to reduce the taxes owed on the sale and to conceal possible fraud committed against the owner of the truck.  The information excluded by Paulus went primarily to the actual value of the truck, which, while minimally relevant to whether Carl Droivold paid $1,500, does not negate the differing claims of the price paid.  Nor does Carl Droivold’s attempted recantation or the fact that citizen complaints were filed against Paulus have any bearing on the question of probable cause.  Because probable cause existed even if the omitted information had been considered, Paulus was entitled to qualified immunity.  Hence, the trial court properly granted summary judgment on the federal civil rights claim. 

     Before leaving this issue, we note that plaintiffs assert in their reply that it was incumbent on the trial court to consider the finding of Judge Karlton that probable cause was lacking.  According to plaintiffs, “[t]he only reason for the contrary ruling of the trial court stems from the trial court’s lack of familiarity with 1983-type actions, or the desire to cleanse its docket of a difficult case.”  Plaintiffs do not assist their case by personal attacks on the trial court. 

 Kilroy v. State of California  6/2/04 CA3

Date Posted	Docket #/ File Format	Description
Jun 02 2004	C044877 [PDF] [DOC]	Kilroy v. State of California 6/2/04 CA3

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