DOUGLAS TENNENBAUM v. CITY AND COUNTY OF SAN FRANCISCO

Background

San Francisco Public Defender Jeff Adachi died in February 2019. Someone in the San Francisco Police Department leaked a police report about the death. The police investigated the leak, obtained search warrants, and searched reporter Bryan Carmody’s home, office, and devices. The police then obtained warrants for other devices, including Douglas Tennenbaum’s personal mobile phone, using evidence from the earlier searches.

Tennenbaum learned about the search of his phone on May 29, 2019. By August 2, 2019, a state court had ruled that the warrants were illegally obtained, quashed them, and ordered the seized evidence destroyed. The police and the Department of Police Accountability later investigated Tennenbaum as a possible source of the leak. The investigation included compelled interviews and disciplinary activity. On August 18, 2022, the police told Tennenbaum that the case against him was closed because there was insufficient evidence to proceed.

Tennenbaum filed this lawsuit on February 9, 2023. The opinion identifies six defendants: the City and County of San Francisco, William Scott, Paul Henderson, Joseph Obidi, Newton Oldfather, and Kevin Comer. The later portion of the opinion describes three claims based on the alleged illegal search: a Fourth Amendment claim under 42 U.S.C. § 1983, a California Bane Act claim, and negligence claims. The defendants moved to dismiss based on the two-year statute of limitations.

Analysis

The court held that the claims accrued when Tennenbaum learned of the alleged wrongful searches, no later than May 2019. An illegal-search claim accrues when the wrongful search occurs, even if the person does not yet know that the search was warrantless. The later end of the police or internal investigation did not delay accrual.

The court rejected Tennenbaum’s argument that the limitations period should run from August 2022, when the investigation closed. Relying on Ninth Circuit precedent, the court concluded that the claims could not be treated like malicious-prosecution claims, which may accrue when related proceedings end. The court also concluded that the disciplinary and investigative process did not postpone the deadline. Because the lawsuit was filed in February 2023, more than two years after May 2019, the unlawful-search claims were untimely.

Tennenbaum also presented an alternative due-process theory concerning the investigation, based on the allegedly illegal search of Carmody’s property and the resulting search of Tennenbaum’s phone. The court called that theory implausible and held that the exclusionary rule—the rule generally restricting the use of unlawfully obtained evidence in a criminal proceeding—did not apply to a civil claim alleging a wrongful investigation by the Department of Police Accountability or the police department. The court also noted, without deciding the issue, that qualified immunity could present an additional difficulty.

Disposition

The court dismissed the complaint with prejudice because the claims were untimely and the deficiency could not be cured by amendment. The order resolved the defendants’ motion to dismiss identified as ECF No. 15.