Unpublished Disposition, 936 F.2d 576 (9th Cir. 1986)

MEMORANDUM^* 

Blais appeals the district court's denial of his motion for summary judgment, asserting that he is immune from Broussard's section 1983 action by operation of both qualified and absolute immunity. Blais also asserts that Broussard's section 1983 claim against him is barred by a previously executed claim-waiver agreement in which Broussard gave up his potential claims. We affirm in part, and dismiss in part for lack of jurisdiction.

* Broussard alleges that Blais acted improperly both in requesting and in executing a search warrant.

* Blais' claim that he is entitled to absolute immunity for activities relating to his request for a search warrant fails. Malley v. Briggs, 475 U.S. 335, 341-44 & n. 6 (1986) (stating that officers who are sued on the grounds that they have acted improperly in seeking arrest warrants are not entitled to absolute immunity under Sec. 1983, but receive only qualified immunity); Bergquist v. County of Cochise, 806 F.2d 1364, 1367-68 (9th Cir. 1986) (rejecting a police officer's claim of absolute immunity for his request of an arrest warrant).

Blais also claims that he is entitled to qualified immunity as a matter of law on Broussard's claim that he unreasonably sought a warrant. The defendant-officer's immunity is lost if a reasonably well-trained officer in his position would have known that he should not apply for the warrant because he lacked probable cause. Malley, 475 U.S. at 344-45; Bergquist, 806 F.2d at 1367-68. Malley establishes an objective standard, not a subjective "good faith" standard. Id.

Blais argues that he satisfies Malley's reasonableness standard as a matter of law because he was entitled to rely on the competence of the judge who issued the search warrant. However, this argument has been rejected by both the Supreme Court and this court. Malley, 475 U.S. at 345, 346 n. 9; Bergquist, 806 F.2d at 1367-68.

Blais alternatively argues that he is entitled to summary judgment under Malley's "reasonable officer" standard. Malley, 475 U.S. at 344-45; see also Anderson v. Creighton, 483 U.S. 635, 641 (1987). There are two types of factual questions that have been given to juries in qualified immunity cases. First, when there is conflicting testimony as to the events that occurred, and the conflicts go to the heart of the inquiry into the actions of the official, the jury resolves the conflicting evidence. See Hansen v. Black, 885 F.2d 642 (9th Cir. 1989).

It is clear that such a "what happened" question is raised by Broussard's claim that Blais acted unreasonably in requesting the warrant. First, there is testimony that would support an inference that insufficient information was disclosed to the judge who issued the search warrant. Further, there is testimony from a knowledgeable Rhode Island official that the key statements in the warrant, that Broussard had violated Rhode Island tax laws, were misleading and without foundation. And these conflicts go to the core of the question whether Blais is liable under Sec. 1983.

The second type of case that goes to the jury requires the jury to evaluate whether a reasonable official in the circumstances of the case would have thought that he acted in conformity with applicable law. See Malley, 475 U.S. at 345-46; Merriman v. Walton, 856 F.2d 1333 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989). Broussard created a jury question as to whether a reasonable law-enforcement official in Blais' position would have thought that he possessed probable cause to seek a warrant for a wide-ranging search of Broussard's home and office. First, Blais failed to disclose to the issuing court a fact that related to his credibility as a declarant--that a Rhode Island grand jury was considering whether to indict him. Further, two of the factors that led the Merriman court to conclude that the officer in Merriman acted unreasonably have considerable force in the instant case. The Merriman court thought it relevant whether the plaintiff was a "responsible member of the community," and Blais knew that Broussard was a lawyer. Moreover, just as the officer in Merriman knew that no crime had been committed, Blais knew Rhode Island had not yet decided whether any crime had been committed, for the very purpose of Blais' preliminary investigation was to determine whether any crime had been committed.

Thus, the district court appropriately denied summary judgment on Broussard's claim that Blais acted unreasonably in seeking the search warrant.

B

The Ninth Circuit has held that if a warrant is executed in an unreasonable manner, then the executing officers may be liable. Bergquist, 806 F.2d at 1369 (applying the Malley standard). Thus, the question is whether a reasonable official in Blais' position would have known that he acted unlawfully in executing the search warrant as he did. See Malley, 475 U.S. at 345-46.

The execution of the warrant cannot support section 1983 liability if Blais is found to have done no more than to have accidentally seized non-warrant documents that were intermingled with warrant documents. For the law governing how to deal with intermingled documents does not seem to have been "clearly established" at the time of the search, February 18, 1986. See United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir. 1985) (in criminal prosecution, entire search not suppressed, though some non-warrant items seized, unless there is "flagrant disregard" for the terms of the warrant); United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (inspection of records to sift documents within warrant from documents not within warrant is acceptable for section 1983 purposes, but seizure of non-warrant records is not); see also Crooker v. Mulligan, 788 F.2d 809, 811-12 (1st Cir. 1986) (an officer who seizes items that are not within the scope of the warrant retains section 1983 immunity if the non-warrant items are intermingled with warrant items, because state of the law is uncertain).

Nevertheless, summary judgment was properly denied, since the parties disagree as to how Blais and the other officers conducted themselves during the search. If, as Broussard claims, Blais purposely or recklessly exceeded the scope of the warrant, then no reasonable officer in Blais' position would have thought that he acted in accord with the law. In contrast, if, as Blais claims, Blais did his best to screen material covered by the warrant from material that was not covered, then Blais acted within the bounds of reason, since the procedures that Blais claims were used in separating warrant material from non-warrant material were not "clearly established" as invalid at the time of the search.

II

Blais claims that Broussard's action against him is barred by a claim-waiver agreement entered into by Broussard and the state of Rhode Island, and that we may review the effectiveness of this agreement because the claim-waiver agreement issue falls within the "collateral order" exception to section 1291. 28 U.S.C. § 1291; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1941) (first establishing the exception).

The Supreme Court recently set forth the standards under which the "collateral order" exception is evaluated. Midland Asphalt Co. v. United States, 489 U.S. 794, 798-99 (1989). The test applied by the court has three prongs:

To fall within the limited class of final collateral orders, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.... [T]he third prong of the ... test is satisfied only where the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.

Id. (citations omitted).

Blais' argument that his purported right to be free of Broussard's claim under a claim-waiver agreement makes the "collateral order" doctrine applicable fails because Blais can satisfy neither the first or third prongs of Midland Asphalt. First, the district court has not yet "conclusively determined" whether or not Blais has a right to be free of Broussard's claim. Indeed, the district court has made no ruling whatsoever on Blais' motion to dismiss because of the claim-waiver agreement. Blais must argue his case to the trial court and obtain a ruling before he seeks to appeal.

Moreover, Blais fails to satisfy Midland Asphalt's third prong. Blais' asserted right to be free of Broussard's claim can be said to contain two components: The right to be free from liability, and the right to be free from litigation. Although a settlement contract does end litigation, its primary function is to settle the claims of right that are the subject matter of the litigation. Thus, while Blais' right to be free of Broussard's claim, like all legal rights, is maximized if Blais wins at summary judgment, Blais' right, like most legal rights, is not destroyed if Blais does not win at summary judgment. See Midland Asphalt, 489 U.S. at 801.

Affirmed in part and Dismissed in part.