May 10, 2007
Ninth Circuit vacates ruling that nondisclosure of wiretap was constitutional violation

Whitaker v. Garcetti, 486 F.3d 572 (9th Cir. 2007) 2007 U.S.App. Lexis 11012 [published] Alison Turner and Marty Stein convinced the Ninth Circuit to vacate a declaratory relief ruling by the district court that a procedure employed by the Los Angeles Police Department and the County of Los Angeles’ District Attorney’s Office to avoid disclosing the existence of a wiretap was a violation of plaintiffs’ Fourth Amendment rights. Seven of the eight plaintiffs had been arrested for and convicted of drug-dealing on evidence derived from investigations triggered by the wiretap investigation. Without reaching the constitutional issue, the Ninth Circuit held that Heck v. Humphrey bars their declaratory relief claims under 42 U.S.C. section 1983, because success would necessarily imply the invalidity of their convictions. On the same ground, Heck required affirming summary judgment for defendants on plaintiffs’ damages claims for nondisclosure and judicial fraud. The eighth plaintiff, an attorney whose call was intercepted during the wiretap investigation, was allowed to proceed with his claim for judicial fraud in obtaining the wiretap order, but he was found to have waived any appeal from the dismissal of his claim based on nondisclosure. The Ninth Circuit also rejected plaintiffs’ challenge to the denial of their attorney fees for lack of jurisdiction. Plaintiffs neglected to file a separate notice of appeal or to amend the notice of appeal they had filed to challenge the summary judgment rulings on their damages claims.