Lawmaster v. Ward
| Citation | 125 F.3d 1341 |
| Decision Date | 18 September 1997 |
| Docket Number | No. 96-5028,96-5028 |
| Parties | 97 CJ C.A.R. 2061 John LAWMASTER, Plaintiff-Appellant, v. P. Blair WARD; Unknown Agents of the United States Treasury Department Bureau of Alcohol, Tobacco and Firearms; United States of America, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Steven L. Sessinghaus, Tulsa, OK, for Plaintiff-Appellant.
Kathleen Bliss, Special Assistant United States Attorney, Albuquerque, NM; and Peter Bernhardt, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, OK, for Defendants-Appellees.
Before BRORBY, LOGAN and HENRY, Circuit Judges.
John Lawmaster brought this action in the United States District Court for the Northern District of Oklahoma pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994). Mr. Lawmaster sued defendants P. Blair Ward and other "unknown agents" of the United States Department of the Treasury Bureau of Alcohol, Tobacco and Firearms ("Agents") and sued the United States, seeking to recover damages based on the Agents' conduct during their search of Mr. Lawmaster's house. Mr. Lawmaster appeals the district court's order granting summary judgment in favor of the defendants. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part and reverse in part.
A confidential informant advised Agent Ward of the following: Mr. Lawmaster owned an illegal fully automatic Colt AR-15 machine gun; the informant saw Mr. Lawmaster firing the gun in a fully automatic mode; Mr. Lawmaster carried the machine gun in several different vehicles; Mr. Lawmaster kept the gun in a green military case; and during gun shows, the informant saw Mr. Lawmaster looking at kits to convert a semi-automatic AR-15 into a fully automatic machine gun. Agent Ward contacted the National Firearms Registration and Transfer Record Office to determine whether Mr. Lawmaster had any firearms registered and concluded he did not. Based on this information, Agent Ward submitted an affidavit and obtained a warrant to search Mr. Lawmaster's home for the following items:
All types of firearms required to be registered with the Bureau of Alcohol, Tobacco and Firearms in the National Firearms Registration and Transfer Record including, but not limited to the following: Colt, AR-15, .223 caliber machine gun, unknown serial number; any machine gun parts or components, such as sears, hammers, disconnectors or bolts; any tools used in the alteration or modification of firearms, such as files or drills; documents, papers, books, records, and other tangible properties which identify occupants or owners of the property to be searched, including, but not limited to, persons whose name or names appear on utilities, repair bills, documents, books, papers, and any other tangible property referring to the purchase, acquisition, ownership, maintenance, or transfer of any types of firearms and/or all components of the above described firearms required to be registered by Federal Law.
Due to safety concerns, the Agents decided to search Mr. Lawmaster's house while it was unoccupied. Once at the house, the Agents knocked and identified themselves and when there was no answer, they forced open the front door. Once inside the house, Mr. Lawmaster's and the Agents' version of the facts sharply diverge; therefore, as an aid to context, each version will be set out below.
Two affidavits were filed along with the motion for summary judgment: one from Agent Ward, and the other from Dennis Larsen--a Sergeant with the Tulsa Police Department and the commanding officer of the Tulsa Police Department Bomb Squad. According to Agent Ward's affidavit, once the Agents opened the front door, a vicious dog confronted them, so in an attempt to force the dog into the back yard, the Agents also forced open the back door. In the house, Agent Ward discovered two other dogs, one of which was an older dog that was unable to move and was lying in its own excrement; Agent Ward called the City of Tulsa Animal Control to attend to the dogs.
After notifying animal control, Agent Ward discovered what appeared to be a home-made time bomb on top of a table. (Id.) Agent Ward evacuated the residence and notified the Tulsa Police Department Bomb Squad. Prior to the Bomb Squad's entry to the house, the gas service was temporarily disconnected to prevent a second source of ignition. Upon his entry into the house as a member of the Bomb Squad, Sergeant Larsen saw the house in total disarray including rotting food on the countertops, piles of dirty clothing on the floor, and dog feces scattered everywhere.
The Bomb Squad x-rayed the bomb-looking object, determined it was missing a complete firing circuit, and disassembled it to establish it contained no explosives. After the bomb squad concluded the house was free of explosives, the Agents reentered the house to continue the search. Upon reentry, Agent Ward noticed the house had a strong odor of urine and had dog feces, food, firearms, ammunition, clothing, videos and magazines strewn throughout the residence.
During the search, Agent Ward forcibly entered a gun vault and a metal box fitting the informant's description of where Mr. Lawmaster stored the machine gun. In the vault, Agent Ward discovered several firearms including one matching the informant's description. Agent Ward conducted a "field test" on the gun concluding it was not a machine gun; he then returned all the firearms neatly back inside the vault and closed the door. Prior to departing, Agent Ward left a copy of the search warrant and a note stating nothing was seized. He also used a hammer to repair both the front and rear doors so they would shut tightly and lock.
Mr. Lawmaster filed the sole affidavit in response to the summary judgment motion. He avers the following facts: On the day his house was searched, Mr. Lawmaster's house had two adult Labrador dogs and one puppy, none of which was vicious; rather, virtually all visitors to the home petted the dogs, and the dogs had never bitten anyone. The dogs were house trained and they seldom had accidents such that before the search, the house was free of stench or feces.
Prior to the search, the house's back door was secured with a "night latch," but could be opened from the inside by turning the door's knob. Dirty dishes were in the "kitchen area," all clean clothes were in the closet or in drawers, and all dirty clothes were in a hamper. All food, videos, firearms, and ammunition were stored, and a few magazines were on the living room coffee table or on end tables. The house contained a paperweight resembling a bomb, an item commonly available at gun shows.
About a dozen of Mr. Lawmaster's firearms were unloaded and stored in the locked gun vault. The following guns were not in the vault: a pistol in a basket in the living room; a pistol in the bedroom night stand; a shotgun attached to the bed's headboard; and an antique shotgun and black powder rifle on a mounted wall rack in the living room. Mr. Lawmaster is not a smoker, and no ashes or dirty ash trays were in the house.
Upon returning home after the Agents' search, Mr. Lawmaster found both the front and back doors had been forced open and the door jambs had been torn out; the back door was wide open and neither door could be held shut. To Mr. Lawmaster, it appeared dog feces had been tracked through the residence. Magazines and videos had been dumped from their storage areas and were "scattered on the floor and on [the] furniture." All clothes, "clean and dirty, were piled on the floor, under or about upended pieces of furniture, removed drawers and pieces of interior trim which had apparently been removed" by the Agents.
Cigar and cigarette ashes were scattered throughout the house and were "mixed in with the bedding which had been stripped from [the] bed and left in a pile on the floor ... along with the up-ended mattress and box springs." All guns, gun cases, loose ammunition and the cases in which Mr. Lawmaster stored the ammunition were "scattered throughout the house." Mr. Lawmaster's antique shotgun and his black powder rifle were lying on living room furniture. One of Mr. Lawmaster's pistols was "submerged in the dogs' water bowl."
Mr. Lawmaster filed this suit pursuant to Bivens alleging the Agents violated his Fourth and Fifth Amendment rights. 1 Also, Mr. Lawmaster asserted that through its Agents, the United States committed the torts of trespass, conversion, and intentional infliction of emotional distress. 2
The Agents filed a motion to dismiss, or alternatively a motion for summary judgment. The United States also filed a motion to dismiss. (Aplt App. at 176.) After hearing argument, the district court converted the United States' motion to dismiss into a motion for summary judgment. The district court entered summary judgment for the Agents on the ground of qualified immunity and entered summary judgment for the United States on the ground Mr. Lawmaster's complaint failed to support any tort action against the United States.
On appeal, Mr. Lawmaster argues the district court erred in granting summary judgment in favor of the Defendants because the Agents were not entitled to qualified immunity and because Mr. Lawmaster's complaint and affidavit show the Agents committed torts for which the United States is liable. We consider these arguments in turn.
A. Qualified Immunity
In granting summary judgment in favor of the Agents, the district court held the Agents were entitled to qualified immunity on Mr. Lawmaster's Fourth and Fifth Amendment claims. We review the district court's grant of summary judgment based on qualified immunity de novo, applying the same legal...
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