Constitutional Law
Jun. 15, 2002
Hells Angels In San Jose May Sue Over Search
SAN JOSE - In a tart opinion, a federal judge has kept alive a lawsuit by members of the San Jose chapter of the Hells Angels that accuses local law enforcement agencies of violating their constitutional rights while searching their homes in the course of a 1998 murder investigation.
U.S. District Judge Jeremy Fogel rejected a bid by attorneys for the City of San Jose to toss out claims concerning the shooting of three dogs by police officers who were serving search warrants on two Hells Angels' homes. He also rejected the county's bid to dismiss claims against its deputies for going too far in seizing motorcycles and other property that was covered with Hells Angels' indicia.
The judge granted summary judgment in favor of both entities on several other issues, including the alleged illegal seizure of another member's photograph album and an investigator's alleged improper instructions to the officers carrying out the search of the club's headquarters and numerous homes. The San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 99-20022JF.
Plaintiffs attorneys were pleased by the outcome, especially after Fogel ruled earlier this year that authorities had probable cause to search members' homes.
"We are very happy," said Karen Snell, a partner at Clarence & Snell in San Francisco who represents the Hells Angels. "The most egregious conduct will be before a jury, and the judge focused right in on it."
Attorneys for the city and county said they would appeal the May 31 ruling. Snell, for her part, plans an appeal of her own of the probable cause decision.
The case involves the investigation into the death of Kevin Sullivan at the Pink Poodle strip club just outside San Jose city limits. Authorities searched club headquarters and the homes of 15 club members for a videotape and meeting notes they believed were evidence in the investigation of Hells Angels member Steve Tausan.
Tausan was arrested for Sullivan's murder but later was acquitted after a jury trial.
Fogel, in his 14-page ruling, said San Jose police officers knew they would encounter aggressive dogs at two of the houses but made no effort to come up with a plan to deal with this problem. "The officers, in effect, left themselves without any option but to kill the dogs in the event they - quite predictably - attempted to guard the home from invasion," he wrote.
The judge was mocking in his description of an officer's "plan" to deal with large dogs resembling bull mastiffs at another home. The plan, Fogel wrote, entailed "hoping that no dogs would appear, poking his shotgun through the fence at any dogs which did appear in an effort to scare them away and, as a last resort, to 'engage' the dogs."
"Predictably, this plan did not work out very well, at least for the dogs."
Fogel said the plaintiffs' Fourth Amendment rights probably were violated.
But Senior Deputy City Attorney Cliff Greenberg said he believes Fogel is wrong and that there is no case law on the subject.
"There's no law at all on what the proper or reasonable methods cops can use when confronted with a dangerous, growling dog," he said.
There is no way to deal with such an animal when executing a search warrant, Greenberg maintained, without alerting the residents inside. "That seems to defeat the whole purpose of executing a search warrant for evidence that might be destroyed easily," he said.
Craiq Anderson
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com