3163 Mission Street
San Francisco, CA 94110
415-285-8091 / fax: 285-8091
WILLIAM M. SIMPICH (#106672)
1736 Franklin Street
Oakland, CA 94612
510-444-0226 / fax: 444-1704
WILLIAM H. GOODMAN, Legal Director
MICHAEL E. DEUTSCH
Center for Constitutional Rights
New York, NY 10012
212-614-6464 / fax: 614-6499
Attorneys for the Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
RICHARD W. HELD, FRANK DOYLE, Jr., JOHN REIKES, PHILLIP SENA, STOCKTON BUCK, PATRICK J. WEBB, EDWARD S. APPEL, TIMOTHY McKINLEY, HORACE MEWBORN, WALTER HEMJE, and JOHN CONWAY of the F.B.I.; JAMES HAHN, C. MICHAEL SIMS, MICHAEL SITTERUD, ROBERT CHENAULT, and RAMON PANIAGUA of the Oakland Police Department; THE UNITED STATES and THE CITY OF OAKLAND, CALIFORNIA,
Case No. C-91-1057 CW (JL)
EIGHTH AMENDED COMPLAINT
FOR VIOLATION OF CIVIL RIGHTS
JURY TRIAL DEMANDED
1. This is an action for damages against a number of Oakland police officers and agents of the FBI, whom plaintiffs accuse of conspiring and acting in concert to suppress, chill and "neutralize" their constitutionally protected activities in defense of the environment, and otherwise injure them and abridge their civil rights. It arose when plaintiffs JUDI BARI and DARRYL CHERNEY were injured---and Ms. Bari horribly maimed---in a dastardly bombing of her car by unknown assailants, in Oakland, California, on May 24, 1990. Instead of taking steps to catch the bombers, the defendant Oakland police officers and FBI agents falsely trumpeted to the press that plaintiffs were violent, dangerous suspected terrorists, and falsely put them under arrest for possession of the bomb which had been used to try to kill them.
2. The bombing occurred after plaintiffs and others announced plans for "Redwood Summer", a campaign designed as an effort in Non-Violence like the Mississippi Summer Project a generation ago, to bring large numbers of young people from around the country to the logging districts of northern California for several weeks in the Summer of 1990, to demonstrate, agitate and organize, pursuant to First Amendment rights, against "clear-cutting" and other practices of the timber industry thought to be dangerous to the environment, the survival of the redwood trees, and the human communities in the California timber country.
3. The FBI, supposedly to counteract the rising menace of "eco-terrorism", had earlier pursued purported "investigations" against Earth First! adherents in other parts of the country. plaintiffs charge that the defendant FBI agents here provided support for the outrageous, false insinuation used to justify the arrest as a matter of the Bureau's policy of "counterintelligence". in order to---in J. Edgar Hoover's immortal phrase---"expose, disrupt, misdirect, discredit and otherwise neutralize" plaintiffs and their movement and organizing work.
Specifically the plaintiffs charge:
+ that the actions and many non-actions of various defendants, and policies of supervisory and municipal defendants, deprived plaintiffs of the rights of Free Speech, Association, Assembly and Petition, and protection against Unreasonable Search and Seizure, under both the United States and the California Constitutions;
+ that certain of defendants' actions also injured the plaintiffs under state tort law; and,
+ that some or all of these wrongs flowed from a conspiracy or conspiracies among the defendants and others in the picture, who shared a wrongful 'meeting of the minds' in the illicit official desire to 'neutralize the plaintiffs and destroy what they stand for' (Hoover's words again).
4. The Jurisdiction and pendent jurisdiction of this Court is based upon the Civil Rights Acts. 42 U.S.C 1983 et seq., and 1988, the judicial Code, 28 U.S.C. 1331 & 1343; and California tort law covering false arrest and wrongful imprisonment. Additionally, the FBI defendants are sued under the parallel federal constitutional jurisdiction established by the U.S. Supreme Court in Bivens vs. Six Unknown Named Agents, 403 U.S. 388 (1971).
5. Plaintiffs. JUDI BARI and DARRYL CHERNEY are U.S. citizens who at all relevant times were residents of the Northern District of California.
6. Defendants. The named individual defendants herein are sued individually and in their official capacity as sworn peace officers of the State of California, City of Oakland, and the United States, for acts and conduct under color of law, as follows:
A. RICHARD W. HELD, FRANK DOYLE, Jr., JOHN REIKES, PHIL SENA, STOCKTON BUCK, PATRICK J. WEBB, HORACE MEWBORN, WALT HENJE, JOHN CONWAY and TIMOTHY McKINLEY are special Agents of the United States Federal Bureau of Investigation. Mr. Held was at relevant times the Special Agent in Charge at the San Francisco field office of the FBI. and Mr. Appel was Assistant Special Agent in Charge. Reikes was the chief, and defendants Doyle, Sena, Buck, Webb, Hemje and Conway were members, of the San Francisco FBI Terrorist Squad who were responsible for the bombing case. Horace Mewborn was a supervising Special Agent responsible for 'terrorist matters'---and this case---at FBI headquarters in Washington, D.C.
B. Capt. JAMES HAHN, Lt. C. MICHAEL SIMS, and sergeants MICHAEL SITTERUD and ROBERT CHENAULT were sworn members of the Homicide Division of the Oakland Police Department, an agency of the CITY OF OAKLAND, a municipal corporation of the State of California. Sgt. RAMON PANIAGUA was also a member of O.P.D.
IV. STATEMENT OF FACTS
7. The "Redwood Summer" project was first announced in February and early March, 1990, by Earth First! organizers. including plaintiffs, who had been engaged in protesting and other non-violent organizing activities on behalf of the redwoods and the environment in the region for several years.
8. In the course of various protest activities prior to the announcement of Redwood Summer, plaintiffs had often witnessed and personally experienced hostility, antagonism and intimidation from various officers of the law in the area. In particular, sheriff's police in Mendocino and Humboldt Counties repeatedly sided with logging company officials and employees, against plaintiffs and other protesters, at the scenes of demonstrations, and repeatedly looked the other way in instances of violence and intimidation of the protesters by these adversaries.
9. After Redwood Summer was announced, the pattern of antagonism and invidious treatment by local law enforcement continued and intensified, and some officials actively disrupted plaintiffs' efforts to communicate and reconcile with loggers and other local community members who were concerned about the summer program.
10. Earth First! received a series of frightening death threats, as many as 20 in all through April, 1990, with several particularly directed at plaintiffs Bari and Cherney. One such, found taped to the door of the Mendocino Environmental Center on April 13, 1990, was a xerox of a large newspaper photo of Judi with the crosshairs of a rifle scope drawn over her face. These were laughed off when reported to the authorities. "If you turn up dead," Mendocino Deputy Sheriff Steve Satterwhite told Judi Bari about a month before the bombing, "Then we'll investigate."
11. Anonymous public smears and "disinformation" activities against plaintiffs also intensified after Redwood Summer was announced, and were also studiously ignored and indulged by the authorities. On or about April 20, 1990, plaintiff Darryl Cherney reported to Humboldt County Sheriff's officers about counterfeit press releases which had been widely circulated in the area, especially among logging company workers, which falsely attributed violent, criminal intentions to Earth First! protesters and Redwood Summer. The counterfeit statements---one from a non-existent "Earth First! Arcata"---promised violent action in the environmental cause, in terms and graphics well-calculated to fan the flames of local resentment and threatened violence against Redwood Summer protesters.
12. In this atmosphere, as Redwood Summer approached in the weeks before the bombing, there was a pronounced, concentrated, explicit danger to plaintiffs of violence and mayhem by local goons, and possibly private "security" forces, activated by hostility and malevolence on the timber side. The existence of this atmosphere, and the danger to plaintiffs, was widely discussed in the press after the bombing; on information and belief, it was known to the FBI defendants through their locally- based colleagues and contacts. At a minimum, the intense recent history of attacks and threats against plaintiffs and their associates could easily have been confirmed by good faith investigators when the bombing occurred.
13. After the Redwood summer announcement, on information and belief, a federation or consortium of law enforcement agencies in the region was formed, through pre-existing mutual- aid agreements and other links, to monitor these protected activities. The FBI and the Oakland Police Department were involved in this network with Humboldt and Mendocino, to plaintiffs' knowledge and belief. Through this network, on information and belief, FBI and Oakland Police agents were part of an inter-agency group which---after Darryl Cherney was arrested, without grounds, near the site of an Earth First! demonstration on the Golden Gate bridge on April 24, 1990--- convened in Marin County for an illegal search of Cherney's car, resulting in the seizure of Redwood Summer documents and other private and First Amendment materials.
14. On information and belief, the FBI had a pre-existing active "investigation" in progress against Redwood Summer and Earth First! at the time the bombing occurred, which was linked and integrated with on-going Bureau activities nationally, including "counterintelligence" (i.e., political "neutralization") operations against Earth First! activists such as those who were the targets of Operation THERMCON, centered at Phoenix. This activity involved surveillance, infiltration and entrapment, forms of disinformation, promotion of factionalism and other methods developed by the Bureau in many cases over the years and used in the THERMCON case to ensnare Earth First! founder and famous personage David Foreman in a controversial indictment, with devastating disruptive effect in the environmental movement.
15. At a minimum, the plaintiffs believe and aver that the Bureau and the defendant agents maintained a constitutionally impermissible, politically-based animus, not based in any legitimate law enforcement interest, against plaintiffs, Earth First! and their organizing work, whereby the defendant agents were alert for opportunities to discredit and disrupt protected activities. Plaintiffs believe and aver that Redwood Summer was a particular target in this regard by the time the bombing occurred.
16. The FBI entered the case immediately after the explosion, and when the defendant agents began to work with the defendant Oakland Police, "suspicion" was immediately focused against the plaintiffs. Darryl Cherney was taken into custody after receiving first aid, and kept isolated from friends and attorneys clamoring to see him while being interrogated by defendants and their colleagues at police headquarters for many hours, without counsel despite his repeated requests. Judi Bari was placed under guard while unconscious in the Hospital, and at one point was brazenly moved, without the knowledge of her doctors---by Oakland officers acting in concert with the defendants, on information and belief---out of the Intensive Care Unit and into the hospital's prison ward. When she first awoke in the hospital, groggy with pain and sedation, two officers at her bedside tried to question her also, without counsel or Miranda warnings.
17. The morning after the bombing, May 25, 1990, the defendants held a press conference, and announced---despite clear indications of attempted murder, and multiple circumstances making the suggestion that plaintiffs had been carrying their own bomb quite preposterous---that the two plaintiffs had been arrested for possessing and transporting a bomb. Plaintiffs aver that, being seasoned investigators, these Oakland and FBI defendants, at the time they decided to arrest plaintiffs, and contrived their public announcement, knew or reasonably should have known from the physical evidence, the risk logic and other factors, that the bombing was no "accident" which had befallen plaintiffs on their way to set the bomb in some other place. The defendants' joint accusation against the plaintiffs was false and they knew it was false, but they made it anyway, to suppress and "neutralize" the plaintiffs and their political message.
18. The explosion caused horrifying multiple maiming and crippling injuries to Judi Bari, driving shrapnel and pieces of the car seat up into her thighs, pelvis and abdomen, causing multiple fractures, pulverizing her sacrum, and permanently dislocating her coccyx. It left her with a paralyzed right foot, crucial damage to her colon and genitals, and severe nerve damage. In addition, the emotional effect of having been the victim of an assassination attempt, and suffering such gruesome injuries---in the wake of the terrifying threats and official indifference to the danger---has been equally severe; as it has been for Darryl Cherney, although he escaped with relatively minor physical damage.
18.1. On top of this came the great terror and despair, etc., she experienced at finding herself in custody---lying there under armed guard, groggy with pain, helpless and basically paralyzed, with family and friends harassed and kept away, envisioning a long prison term away from her children, etc.--- falsely and wrongfully charged with a heinous crime which in fact had been committed against her. Judi has also suffered substantially since that early time, particularly from post- trauma stress syndrome, and the strain of pursuing vindication, etc., etc.
18.2. Plaintiff Darryl Cherney has also suffered substantially as a result of the wrongs alleged, despite his minor physical injuries and lack of children to worry about and have to care for in the aftermath of such a catastrophe; he continues to experience mental-emotional-psychological ill effects, a burden on his reputation, and difficulties in his organizing work, etc., as a result of the conspiratorial activities against him alleged in this complaint.
19. After the arrest one or more of the Oakland and FBI defendants made a series of statements to the press which amounted to a political smear of plaintiffs and Earth First! as supposed terrorists and violent fanatics, versed in the use of pipe bombs and automatic weapons---in order to discredit the Redwood Summer project and make it an object of fear, so that people would be afraid to join.
20. These defendants pushed their contrived case in the Municipal Court also, to obtain a high, punitive bail against the plaintiffs; and defendant Detective Paniagua, on information and belief, made or carried their misrepresentations to the magistrate, inducing him to raise bail to ten times the original amount. A non-refundable bondsman's fee of $10,000 was required to obtain Darryl's release, and Judi with her broken body lying in hospital was held on $100,000 bond as a "flight risk".
21. In the wake of the arrest, several of these defendants and other police and agents also quickly descended upon numerous persons associated with plaintiffs, aggressively and threateningly interrogated several of them, and conducted several unreasonable searches. Thereafter, Defendant Chenault concocted an affidavit ---which plaintiffs aver was legally fraudulent within the rule of Franks vs. Delaware---purporting to show cause to believe the plaintiffs were in fact the bombers, and defendants then searched plaintiffs' homes without reasonable cause and for unlawful purposes. (See below, Par. 21, n.1)
22. A month later, in pursuit of further headlines, another search of Judi's home was performed, on a similarly fraudulent affidavit by defendant Sitterud, purporting to seek carpenter's nails which would match nails said to have been taped to the bomb for shrapnel effect. Some nails were found, naturally, since they are found everywhere, and one or more of the FBI and Oakland defendants then held another press conference, further defaming and attempting to neutralize plaintiffs by falsely claiming to have found a guilty match among finishing nails
V. PLAINTIFFS' CAUSES OF ACTION
ONE. Sec. 1983, FOURTH AMENDMENT. Plaintiffs vs. Defendants Held, Reikes, Doyle, Sena, Buck, Webb, Appel, Mewborn, Hahn, Sims, Paniagua, Sitterud & Chenault.
23. The described arrest of plaintiffs Bari and Cherney for possession and transport of the bomb used in the attempt to kill them, where the defendants knew or should have known the purported bases for believing them guilty were false and insubstantial, was without probable cause. The concerted acts and omissions of the defendant FBI and Oakland agents and officers, Reikes, Doyle, Sena, Buck, Webb, Sims, Chenault, Sitterud, Paniagua, and others involved, including defendants Held, Appel and Hahn as supervisors, in jointly considering and deciding upon the arrest, carrying it out, and publicizing it in a defamatory way constituted an unreasonable seizure, in violation of the Fourth Amendment, entitling plaintiffs to judgment against the responsible defendants for damages, punitive damages, and attorneys’ fees, as prayed for below.
24. Likewise, the several searches of the cars, backpacks and premises of plaintiffs and others by these defendants and others acting with them, with and without the warrants which were obtained by fraud through the same false pretense used to justify the arrest and the seizures, particularly of personal and political/organizing documents and materials---and including children s medical records and other family documents taken from the bombed car, where the search of the car is not challenged---were unreasonable and unlawful, and violated the Fourth Amendment, entitling plaintiffs to judgment.
TWO. Sec. 1983 FIRST AMENDMENT: Plaintiffs vs. the individual FBI/Oakland defendants and the Oakland Police Department and the City of Oakland.
25. Such concerted conduct of the said FBI and Oakland defendants in connection with the arrest, and the attendant defamatory public accusation against the plaintiffs, was intended to and did wrongfully disrupt, chill, punish, "neutralize" and otherwise infringe upon the lawful, protected activities of all plaintiffs on behalf of the environment, including but not limited to Redwood Summer, in violation of the First Amendment, entitling plaintiffs to judgment as prayed for below.
26. The Oakland Police Department and the City of Oakland are also charged with liability in this Count TWO, in that their ratification, condonation and maintenance of the smear campaign against plaintiffs, Earth First! and Redwood Summer, based on the false arrest of plaintiffs Bari and Cherney as described, amounted to an unconstitutional, tacit municipal policy or harassment and suppression of Free Speech. Although the unreasonable character of police claims blaming the bombing victims for the bombing was so patent that the District Attorney declined to file charges in the initial statutory period (and later dropped the case), responsible officials of the Police Department and the City did nothing to restrain the defendant officers' continuing persecution of plaintiffs in the press. The corporate City thereby embraced and became jointly liable for the violations and injuries the plaintiffs suffered pursuant to the false arrest.
THREE. Sec. 1983, CONSPIRACY TO VIOLATE CONSTITUTIONAL RIGHTS: Plaintiffs vs. All Individual Defendants.
27. Plaintiffs charge further that the violations and injuries complained of herein were brought about by conspiracy among some or all of the defendants and others, whereby there was a Meeting of the Minds among them regarding their desire to expose, disrupt, misdirect, discredit or otherwise neutralize' and otherwise suppress, punish and chill the protected activities of the plaintiffs, Earth First! and Redwood Summer.
28. Thus it was the object of the conspiracy:
+ to endeavor to cause Redwood Summer be seen and branded in the public mind as likely to involve lawless conflict and violence, so that its meaning and non-violent premise would be hidden and people would be frightened and discouraged from coming to participate;
+ to nurture the atmosphere of conflict, danger and division in the communities of the logging district and among the people there, so as to impede the organizing work of plaintiffs and their associates directed at the logging companies and their responsibility for the destruction of the forest and impoverishment of the forest workers; and,
+ to falsely portray plaintiffs and Earth First!, and cause them to be portrayed, as dangerous extremists, involved with bombs and guns and tree-spiking, willing to resort to violence, power-hungry and without conscience in the pursuit of their ends, etc.
29. Overt acts by members of the conspiracy would include:
+ Participation in fabricating the basis for the false arrest of Judi and Darryl, and making defamatory statements about them, procuring the high bail, attempting to question them without counsel, fabricating warrant affidavits and searching their homes on false pretenses, etc. (defendants Sims, Sitterud, Chenault, Paniagua, Reikes, Doyle, Sena, Webb, Buck); and,
+ Other communications and joint actions in aid of these measures and furtherance of the ends of disruption and neutralization against plaintiffs, Earth First! and Redwood Summer (above defendants plus Hahn, Held, Appel, Hemje, Conway, Mewborn).
FIVE. CALIFORNIA TORT LAW. Plaintiffs vs. Oakland defendants and the City of Oakland in Respondent.
31. An additional basis for liability and recovery of damages against defendants arise herein, and is subject to the Court's pendant jurisdiction, under California tort law, as a matter of False Arrest (and Wrongful Imprisonment) of plaintiffs Bari and Cherney, as against the individual Oakland defendants involved in concocting the false charges, and the City of Oakland as Employer. (Plaintiffs also have filed, and the Court has consolidated herewith a parallel action against the FBI under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.);
31.1. Under Cal. Gov’t Code § 815.2 and California common law, the City of Oakland is liable in respondeat superior for the false arrest and imprisonment of plaintiffs Bari and Cherney by its employee officers, committed within the scope of their employment. As such, the City and its employee officers breached a mandatory duty to refrain from committing false arrests and imprisonment, as set out in the California Constitution, Article 1, §§ 7 and 13, and California common law.
31.2. Plaintiffs complied with the California Tort Claims Act, Cal. Gov’t Code §§ 900 et seq., by timely submitting a tort claim for the offensive conduct herein alleged under Count FIVE, which the City rejected.
VI. PRAYER FOR RELIEF
WHEREFORE, the plaintiffs demand judgment against the defendants, jointly and severally, for compensatory damages in the amount of One Million Dollars each, for violation of their Constitutional rights. Judi Bari reserves the right to augment her prayer for these damages if any defendant is found to have helped proximately cause the bombing itself;
Plaintiffs Bari and Cherney pray in addition for punitive damages in proper amounts found by the Jury against each of the individual Oakland and FBI defendants found to have participated in fabricating the false basis for the arrest and/or defaming them as bombing suspects;
Plaintiffs pray for attorneys fees as provided for under 42 U.S.C. 1988 and the cases;
Plaintiffs demand Trial By Jury, and respectfully ask the Court for such other and further relief as may be just--- including but not limited to declaratory relief, as aforesaid.
DATED: August 3, 2001:
Attorney for the Plaintiffs
 This Eighth Amended Complaint is submitted in compliance with the Court’s Order of 7/27/01. Its text is identical to the Seventh Amended Complaint, minus references to an Equal Protection claim, injunctive relief, un-sued co-conspirators, and the Ninth Amendment, previously stricken by the Court (¶s 6.1, 30, and 32), but contains additional ¶s 31.1 and 31.2.
 Plaintiffs can and will establish---and to a degree did so in their Second Amended Complaint---that the falsehoods in this and a second affidavit, i.e., that the plaintiffs were terrorists, that the bomb was behind the front seat, that the nails matched, that there was evidence the bomb had been built in Judi Bari's house, etc., were deliberate, or certainly reckless of the truth, and "necessary to the finding of probable cause", per Franks. See Branch vs. Tunnell, 937 F.2d 1382 (9th Cir. 1991).