                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 17 2012

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



                            FOR THE NINTH CIRCUIT


JULIANNE PANAGACOS; MALLORY                      No. 11-35527
HAGEL; STEPHANIE SNYDER; EMILY
COX; KIM CHAPLIN; MOLLY                          D.C. No. 3:10-cv-05018-RBL
PORTER; FIBIOLA ROMERO;
ANDREA ROBBINS; JULIA
GARFILED; ERAN RHODES; ELI                       MEMORANDUM*
EVANS; CHRIS GRANDE; DAVI RIOS;
BRENDAN DUNN; GLENN CRESPO;
JEFFREY BERRYHILL,

              Plaintiffs - Appellees,

  v.

JOHN J TOWERY; CLINTON D
COLVIN,

              Defendants,

  and

THOMAS R RUDD,

              Defendant - Appellant.



JULIANNE PANAGACOS; MALLORY                      No. 11-35538
HAGEL; STEPHANIE SNYDER; EMILY

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
COX; KIM CHAPLIN; MOLLY                         D.C. No. 3:10-cv-05018-RBL
PORTER; FIBIOLA ROMERO;
ANDREA ROBBINS; JULIA
GARFILED; ERAN RHODES; ELI
EVANS; CHRIS GRANDE; DAVI RIOS;
BRENDAN DUNN; GLENN CRESPO;
JEFFREY BERRYHILL,

               Plaintiffs - Appellees,

  v.

JOHN J TOWERY,

               Defendant - Appellant,

  and

CLINTON D COLVIN; THOMAS R
RUDD,

               Defendants.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted November 5, 2012
                               Seattle, Washington

Before:        W. FLETCHER and FISHER, Circuit Judges, and DEARIE, Senior
               District Judge.**


          **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
                                         2
      Defendants John Towery and Thomas Rudd appeal from the district court’s

partial denial of their motions to dismiss the plaintiffs’ Third Amended Complaint

(“TAC”). The district court granted defendants’ motions to dismiss all claims

against them in the first eight counts of the TAC. The ninth and last count alleged

claims under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The district court dismissed the Bivens claims

under the ninth count based on alleged violations of the Fifth, Sixth, and

Fourteenth Amendments, but it refused to dismiss the First and Fourth Amendment

claims. It rejected defendants’ arguments — made for the first time after the filing

of the TAC — that plaintiffs’ First and Fourth Amendment allegations were not

plausible and that defendants were entitled to qualified immunity. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review de novo a district court’s denial of qualified immunity on a Rule

12(b)(6) motion to dismiss. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

We must “assume all factual allegations are true and construe them in the light

most favorable to the plaintiff.” Cervantes v. United States, 330 F.3d 1186, 1187

(9th Cir. 2003). The complaint “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotations and citations omitted) (quoting Bell


                                            3
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To overcome qualified

immunity, plaintiffs must allege that defendants violated plaintiffs’ clearly

established constitutional rights. Moss v. U.S. Secret Service, 675 F.3d 1213, 1222

(9th Cir. 2012).

      The TAC alleges that Towery infiltrated plaintiffs’ peaceful anti-war protest

group in order to spy on and disrupt plaintiffs’ activities. The TAC alleges, for

example, that Towery identified plaintiffs to others in order to facilitate their arrest

without probable cause. Rudd allegedly directed Towery’s efforts and compiled

Towery’s intelligence in reports that he disseminated to other government actors.

Both men allegedly coordinated with law-enforcement agencies to plan and

implement strategies designed to silence the protestors.

      The district court correctly determined that these allegations are plausibly

supported by sufficient factual detail and must be presumed true. See Iqbal, 556

U.S. at 678. The TAC gives examples of specific times and places that Towery

spied on plaintiffs’ meetings. It alleges that defendants met with specifically

identified law-enforcement officers and agencies, and identifies specific time

frames when these meetings occurred. These factual allegations are sufficient to

“give fair notice and to enable the opposing party to defend itself effectively.”

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). As the district court noted,


                                           4
Towery and Rudd’s direct involvement in information gathering and reporting

distinguishes this case from Iqbal, where conclusory allegations about the high-

level government defendants’ involvement were “not entitled to be assumed true.”

Iqbal, 556 U.S. at 680–81.

      Plaintiffs have pled a plausible violation of their clearly established First

Amendment rights. Plaintiffs have alleged that defendants “deterred or chilled the

plaintiff's political speech” and that such deterrence motivated defendants’

conduct. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.

1999) (internal quotations and alterations omitted). As a result of defendants’

information sharing and coordination with local law enforcement, plaintiffs were

allegedly arrested without probable cause. These arrests allegedly disrupted

plaintiffs’ peaceful protests and deterred their political speech. The TAC’s

allegations also support a plausible inference that defendants were motivated by an

impermissible intent to disrupt plaintiffs’ speech activities. Given plaintiffs’ strong

anti-war message and defendants’ alleged illegal actions in purposefully

facilitating a campaign of false arrests, it is plausible that Towery and Rudd were

motivated by a desire to silence the protesters and not just by a desire to protect

military shipments. See Starr, 652 F.3d at 1216. Finally, it is clearly established

that intentionally enabling arrests without probable cause in order to suppress


                                           5
speech violates the First Amendment. See Beck v. City of Upland, 527 F.3d 853,

863–64 (9th Cir. 2008); Mendocino Envtl. Ctr., 192 F.3d at 1300.

      Plaintiffs have also pled plausible violations of their clearly established

Fourth Amendment rights. It is clearly established that facilitating arrests without

probable cause violates the Fourth Amendment. See, e.g., Beck, 527 F.3d at

863–64. The district court also correctly determined that the TAC’s allegations

that Towery coordinated with local police to covertly break into a private listserve

plausibly describe an unconstitutional search.

      AFFIRMED.




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