                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 15 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

PETER T. LITTLEFAIR,                             No. 09-35806

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05476-BHS

  v.
                                                 MEMORANDUM*
SERGEANT ARNE GOSNER, in his
individual and official capacity; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                      Argued and Submitted August 30, 2010
                               Seattle, Washington

Before: HAWKINS, McKEOWN and BEA, Circuit Judges.

       Peter Littlefair appeals the district court’s order granting summary judgment

based on qualified immunity in favor of Sergeant Arne Gosner on Littlefair’s

claims brought under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C

§ 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo the district court’s grant of summary judgment. Ewing

v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009). Viewing the evidence in

the light most favorable to the nonmoving party and drawing all justifiable

inferences in its favor, we must “determine whether there are genuine issues of

material fact and whether the district court correctly applied the relevant

substantive law.” Id.

      Where a plaintiff brings a § 1983 claim alleging false or omitted statements

in a search warrant affidavit, the standard for qualified immunity is governed by

Franks v. Delaware, 438 U.S. 154 (1978). Liston v. County of Riverside, 120 F.3d

965, 972 (9th Cir. 1997). To survive summary judgment for a claim for judicial

deception, a plaintiff “must make (1) a ‘substantial showing’ of deliberate

falsehood or reckless disregard for the truth and (2) establish that, but for the

dishonesty, the challenged action would not have occurred.” Id. at 973 (quoting

Hervey v. Estes, 65 F.3d 784, 788–89 (9th Cir. 1995)). “If a plaintiff satisfies these

requirements, ‘the matter should go to trial.’” Id. at 973 (quoting Hervey, 65 F.3d

at 789).

      Littlefair failed to show that Sergeant Gosner deliberately or recklessly made

false statements or omissions in his affidavit that were material to the finding of

probable cause for the search warrant of Littlefair’s property. As the Supreme


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Court has noted, “qualified immunity . . . provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). Sergeant Gosner’s conduct does not rise to this level,

and therefore he is entitled to qualified immunity.

      Furthermore, the district court did not abuse its discretion when it excluded

portions of Littlefair’s declaration. Littlefair did not have personal knowledge to

offer such evidence under Federal Rule of Civil Procedure 56(e). Even if the

district court did abuse its discretion, the error was harmless given that the

excluded evidence was cumulative of other evidence. See United States v.

Hinkson, 585 F.3d 1247, 1251, 1262 (9th Cir. 2009) (en banc).

AFFIRMED.




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