{"id":1427,"date":"2007-11-01T10:12:14","date_gmt":"2007-10-08T05:12:38","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-08T05:12:38","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1427","title":{"rendered":"Mayfield<\/em> 2005 denial of summary judgment on false affidavits about fingerprint match available"},"content":{"rendered":"

A 2005 order in the Brian Mayfield case (the final order, Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Ore. 2007), posted here<\/a>) appeared on Lexis overnight: In Mayfield’s Bivens<\/em><\/a> claim, the affidavit for his arrest rather than a subpoena was shown to be sufficiently doubtful that the motion for summary judgment was denied because of false statements under Franks<\/a>. Mayfield v. Gonzales, 2005 U.S. Dist. LEXIS 45684 (D. Ore. July 28, 2005):<\/p>\n

Defendants ultimately assert that “probable cause existed because of the fingerprint match.” Id.<\/em> at p. 12. Plaintiffs, however, have raised serious issues surrounding the validity of those fingerprint matches as made by the three individual defendants. Plaintiffs allege that Werder’s statement that Mayfield’s print was a “100% match” was at least reckless and possibly intentionally false. Regarding specific information on Mayfield, it is unclear to plaintiffs what information the individual defendants had available to them prior to and during their individual fingerprint analyses.<\/p>\n

Moreover, plaintiffs allege that the “corrected” affidavit fails to provide sufficient probable cause that Mayfield would not honor a subpoena. The Ninth Circuit has stated that, “sufficient facts must be shown to give the judicial officer probable cause to believe that it may be impracticable to secure the presence of the witness by subpoena. Mere assertion will not do.” Bacon v. United States,<\/em> 449 F.2d 933, 943 (9th Cir. 1971). The court in Bacon held that “the fact that Bacon had access to large sums of money is at best remotely relevant to her possible recalcitrance. There was no showing of past attempts by Bacon to evade judicial process, nor of past clandestine travels by Bacon.” Id.<\/em> at 945.<\/p>\n

Plaintiffs assert that Werder’s “corrected affidavit” provides no basis for a court to conclude that Mayfield, an attorney with roots in the community, would not obey a subpoena. Again, plaintiffs’ allegations of intentional or reckless misstatements greatly concern this court. Therefore, the court will allow discovery on the issue of what information was known to the defendants regarding Mayfield’s flight risk and the likelihood that he would not obey a subpoena; specifically, of any past attempts to evade judicial process, or past clandestine travels.<\/p><\/blockquote>\n

Mayfield even got discovery in the face of a national security argument by the government:<\/p>\n

As set forth above, plaintiffs move for an injunction requiring the government to retrieve and destroy all materials pertaining to plaintiffs that they allege were illegally collected, disseminated, and retained by the government pursuant to FISA. Plaintiffs also move for a declaratory judgment that FISA, as amended by the Patriot Act, is unconstitutional. Defendants first respond to plaintiffs’ request for injunctive relief, arguing that plaintiffs’ 12th claim is moot due to defendants’ willingness to turn over the material requested by plaintiffs. Next, pursuant to Fed. R. Civ. P. 12(b)(6), defendants move to dismiss plaintiffs’ claim of unconstitutionality of the Patriot Act for failure to state a claim for which relief can be granted. At this stage in the proceedings, the court will address only plaintiffs’ request for injunctive relief.<\/p>\n

In that regard, defendants assert that “upon the conclusion of the relevant proceedings, the government is willing to destroy the materials seized or reproduced during the execution of searches authorized by the FISC and communications intercepts obtained during the execution of surveillance authorized by the FISC.” Defendants’ Reply in Support of Motion to Dismiss, p. 14. Defendants are further willing, “during the pendency of the relevant proceedings, to retrieve these materials and secure them in the vault at the FBI, in the same manner that the materials gathered pursuant to criminal search warrants are being maintained pursuant to Judge Jones’ order and consistent with the classified nature of the materials.” Id. Therefore, with the “resolution of [plaintiffs’] request for injunctive relief,” defendants argue that Count 12 must be dismissed.<\/p>\n

First, because no injunctive relief has been provided to plaintiffs at this point in time, I disagree that plaintiffs’ Claim Twelve is currently in a posture to be dismissed on that basis. Further, despite defendants’ representation to the contrary, I find that defendants’ willingness to gather back, all of the disseminated materials and hold them in a secure place until this ligation has concluded while allowing access to the materials to defend this lawsuit and to respond to any “pending internal investigations,” is not the injunctive relief plaintiffs have requested.<\/p>\n

I am persuaded by plaintiffs’ argument that “consideration of the facial constitutionality of FISA, as amended by the Patriot Act, without the factual development of the full context of the case and the extent of deprivation of the Mayfield family’s rights, is out of order.” Plaintiffs’ Memo in Opposition to Defendants’ Motion to Dismiss Counts Twelve and Thirteen, p. 14. In order for plaintiffs to achieve the injunctive relief they seek, that is, the purging of all government files of information collected on plaintiffs during FISA surveillance and searches, plaintiffs are first entitled to an opportunity to determine the nature of the surveillance and searches conducted, and a specific description of the data and documents collected. Pursuant to 50 U.S.C. \u00a7 1806, even if the Attorney General certifies that any disclosure would “harm the national security of the United States,” plaintiffs are still entitled to request that this court review the materials ex parte and in camera “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. \u00a7 1806(f).<\/p>\n

Regarding FISA authorized physical searches, 50 U.S.C. \u00a7 1825(b) holds that if the Attorney General determines that there exists no national security interest in continuing to maintain the secrecy of the search, the “Attorney General shall provide notice to the United States person whose residence was searched of the fact (of the search) conducted pursuant to this chapter and shall identify any property of such person seized, altered, or reproduced during the search.” 50 U.S.C. \u00a7 1825(b).<\/p>\n

The defendants subsequently provided plaintiffs notice pursuant to 50 U.S.C. \u00a7 1825 (b) via a letter to plaintiffs dated March 24, 2005, wherein the government formally advised Mr. Mayfield that he was the “target of physical searches of his residence, and … the following property was seized, altered or reproduced during FISA searches of his residence: three hard drives of three desk top computers and one loose hard drive were copied; several documents in the residence were digitally photographed; ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis; and approximately 335 digital photographs were taken of the residence and property therein.” Ex. A, Plaintiffs’ Supplemental Memo of Law. Mayfield was also formally notified that “he was the target of electronic surveillance and other physical searches authorized pursuant to FISA.” Id.<\/em><\/p><\/blockquote>\n

The government also sought to retain copies of items for civil litigation from the sneak and peak warrant, which the court allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"

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