Breidenbach v. Bolish

• Citation: 126 F.3d 1288
• Decision Date: 10 October 1997
• Docket Number: No. 96-1270,96-1270
• Parties: 97 CJ C.A.R. 2330 Edward A. BREIDENBACH, Mary Ellen Breidenbach, Frank D. Breidenbach, Geraldine E. Breidenbach, Edward John Breidenbach, Scott A. Harms, Gina L. Bullock, Jason Bullock, Christopher Harms, Nicole Harms, Fransisco Serrano, Steven G. Harms, Jennifer Harms, and Chad Harms, Plaintiffs-Appellees, v. Don BOLISH, Sheriff of Logan County, Ray Neville, Deputy Sheriff with Logan County Sheriff's Department, County of Logan, a county of the State of Colorado, and John Does I Through XL, officers and agents of various governmental entities including Colorado National Guard, Defendants, and Nicola Gesi, Drug Enforcement Administration Special Agent, in his official capacity, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1288

126 F.3d 1288

97 CJ C.A.R. 2330

Edward A. BREIDENBACH, Mary Ellen Breidenbach, Frank D Breidenbach, Geraldine E. Breidenbach, Edward John Breidenbach, Scott A. Harms, Gina L. Bullock, Jason Bullock Christopher Harms, Nicole Harms, Fransisco Serrano, Steven G. Harms, Jennifer Harms, and Chad Harms, Plaintiffs-Appellees, v. Don BOLISH, Sheriff of Logan County, Ray Neville, Deputy Sheriff with Logan County Sheriff's Department, County of Logan, a county of the State of Colorado, and John Does I Through XL, officers and agents of various governmental entities including Colorado National Guard, Defendants and Nicola Gesi, Drug Enforcement Administration Special Agent in his official capacity, Defendant-Appellant.

No. 96-1270.

United States Court of Appeals, Tenth Circuit.

Oct. 10, 1997.

Nathan D. Chambers, Chambers, Dansky & Hansen, P.C., Denver, CO, for Plaintiffs-Appellees.

Barbara L. Herwig and Edward Himmelfarb, United States Department of Justice, Washington, DC, for Defendant-Appellant Nicola Gesi.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

This appeal arises from the plaintiffs' civil rights action against Nicola Gesi, a special agent of the Drug Enforcement Agency, alleging that Agent Gesi knowingly or recklessly submitted false information in an affidavit used to obtain warrants to search the plaintiffs' homes. Agent Gesi moved to dismiss the action on qualified immunity grounds, arguing that the plaintiffs failed to allege facts sufficient to demonstrate that Agent Gesi violated a clearly established constitutional right. The district court denied Agent Gesi's motion to dismiss and allowed discovery to proceed to resolve the qualified immunity question. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). We reverse and remand.

I. BACKGROUND

The plaintiffs are residents of six homes in Logan County, Colorado. On August 21 and 22, 1993, in a series of pre-dawn raids, federal, state, and local law enforcement agents executed warrants to search the plaintiffs' homes and other homes in Logan County. The searches of the plaintiffs' homes failed to produce any evidence of marijuana or contraband, and none of the plaintiffs were criminally charged.

As a result of the events surrounding the searches, the plaintiffs filed this civil rights action against the law enforcement agents, Logan County, and the City of Sterling, Colorado, alleging the searches violated their Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution. Among other things, the plaintiffs brought a federal action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against DEA agent Gesi who submitted the affidavit (or affidavits) to procure the warrants. The plaintiffs allege that Agent Gesi "knowingly included false information in the affidavit(s) or recklessly disregarded the substantial probability that certain information in the affidavit was false." Aplts' App., doc. 1, at 3 (First Amended Complaint dated Feb. 2, 1996). ¹ However, because the warrant affidavit was sealed by the issuing judge as part of the defendants' continuing criminal investigation in Logan County, the plaintiffs have never seen Agent Gesi's warrant affidavit and did not offer specific facts related to the affidavit.

Agent Gesi moved to dismiss the plaintiffs' complaint on qualified immunity grounds. He argued that he was entitled to qualified immunity because the plaintiffs had failed to allege the violation of a clearly established constitutional right in sufficient detail to meet the "heightened pleading" standard required in qualified immunity cases. In response, the plaintiffs offered affidavits from Edward Breidenbach and Mary Ellen Breidenbach swearing that they had never been involved in the cultivation or distribution of any controlled substances, or had controlled substances in their residences or on their property.

The district court denied Agent Gesi's motion. The district court first determined under the qualified immunity doctrine that the law was clearly established at the time of the alleged violation that the submission of false information in a warrant affidavit violated an individual's Fourth Amendment rights. Aplts' App. doc. 4, at 3 (Dist. Ct. Order dated May 6, 1996). The court then held that because the plaintiffs have been refused all discovery and have not seen the sealed affidavit, their allegations were "sufficient to withstand a motion to dismiss." Id. at 4. The court ruled that the plaintiffs could proceed with discovery limited to resolving the qualified immunity question. The court added that if the plaintiffs failed "to adduce evidence to support their allegations of Gesi's falsity or reckless disregard for the truth in preparing the affidavit at issue, summary judgment [would] enter forthwith." Id.

II. DISCUSSION

We review the denial or grant of a motion to dismiss de novo, applying the same standard used by the district court. See Liebson v. New Mexico Corrections Dep't, 73 F.3d 274, 275 (10th Cir.1996). In the context of a qualified immunity defense, however, the standard is somewhat different than in the typical Fed.R.Civ.P. 12(b)(6) context. Once the defendant raises a qualified immunity defense, the plaintiff assumes the burden of showing that the defendant has violated clearly established law. See Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (1988). To overcome the qualified immunity defense, the plaintiff must identify a clearly established statutory or constitutional right of which a reasonable person would have known, and then allege facts to show that the defendant's conduct violated that right. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Pueblo Neighborhood Health Ctrs., Inc., 847 F.2d at 645.

The qualified immunity defense extends to government officials performing discretionary functions. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. As explained by the Supreme Court in Mitchell, qualified immunity represents

an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.

472 U.S. at 526, 105 S.Ct. at 2815.

The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts. See Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978) ("[W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials."). Thus, in assessing whether the qualified immunity defense should apply, we must make two inquiries: First, we must ask what was the clearly established law with regard to the plaintiffs' constitutional rights at the time those rights were allegedly violated by Agent Gesi. If the law was not clearly established at the time, then Agent Gesi is entitled to dismissal of the action because he could not have known that he was violating that right. Second, if the law was clearly established, we must ask whether Agent Gesi's conduct was "objectively reasonable" in light of this clearly established law.

A. Clearly Established Law

The first question under Harlow is whether the law regarding the submission of false information in a warrant affidavit was clearly established at the time of the alleged violation in August 1993. Neither party disputes that the law was clearly established. As pointed out by the district court, the appropriate standard for determining whether a constitutional violation occurred in this instance is set out in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This court has previously held that "the law [is] clearly established that an officer would violate a plaintiff's Fourth and Fourteenth Amendment rights by knowingly or recklessly making a false statement in an affidavit in support of [a] ... warrant, if the false statement were material to the finding of probable cause." Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir.1991) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77). Accordingly, we hold that the law concerning the plaintiffs' claim against Agent Gesi was clearly established at the time of the alleged violation.

B. The Objective Reasonableness of the Defendant's Actions

The dispute in this case focuses on the second prong of the Harlow test--that is, whether the plaintiffs have alleged facts sufficient to demonstrate that defendants' conduct was "objectively unreasonable" in light of clearly established law. On appeal, Agent Gesi argues that the district court erred in denying his motion to dismiss because the plaintiffs failed to allege any facts to support their allegation that he knowingly or recklessly submitted false information in his warrant affidavit. Because this appeal arises on a motion to dismiss, we construe the facts, and reasonable inferences that might be drawn from them, in favor of the plaintiff. See Beard v. City Northglenn, Colo., 24 F.3d 110, 115 (10th Cir.1994).

Agent Gesi correctly notes that in the context of a qualified immunity defense, this court has traditionally required plaintiffs to meet a heightened pleading standard. See Sawyer v. County of Creek, 908 F.2d 663, 667 (10th Cir.1990) ("Once a qualified immunity defense has been raised ..., the plaintiff is held to a heightened standard of pleading."). The...