Redux: CA9: Franks violation in CP investigation where no CP found leads to civil liability; SW targets actually innocent

The Ninth Circuit denied rehearing en banc in Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011), rehearing denied, op. amended November 7, 2011. The plaintiffs’ credit card information had been stolen and used to acquire child porn. A Franks violation was alleged leading to search warrant for child pornography on their computers, and none was found. They sued under § 1983, and it leads to civil rights liability for the investigators:

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism’s home and business office. Relying on the same information contained in Gardner’s affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington’s child pornography laws. A few days later, several WSP officers executed the search and arrest warrants. A WSP detective eventually conducted forensic examinations of the Chisms’ home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements. The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers’ motion, concluding that the officers’ conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.