Supreme Video, Inc. v. Schauz

Decision Date10 February 1994
Docket NumberNo. 93-1060,93-1060
PartiesSUPREME VIDEO, INC., Plaintiff-Appellant, v. Steven SCHAUZ, James Thome, and One or More John Does, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Jeff S. Olson (argued), Julian, Olson & Lasker, Madison, WI, for plaintiff-appellant.

Gregg T. Heidenreich (argued), Schuch & Stilp, Milwaukee, WI, for defendant-appellee.

Before WOOD, Jr., FLAUM, and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Three years ago, this court upheld the constitutionality of Wisconsin's current obscenity statute, Wis.Stat. Sec. 944.21. See Kucharek v. Hanaway, 902 F.2d 513, 515 (7th Cir.1990), cert. denied 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Shortly thereafter, City of Oshkosh District Attorney Joseph Paulus began discussing with detective Michael Novotny the possibility of initiating investigations of area video stores for violations of Section 944.21. Under the supervision of Chief of Police James Thome, Detective Steven Schauz assisted in an investigation of Supreme Video.

As instructed by Paulus, Schauz purchased three videotapes from plaintiff Supreme Video on April 2, 1991. The first, Alex Derenzy's Juicy Lucy, was a single-issue, non-serial work. The other two, Wall to Wall the Way You Like It and Home Movie Productions, were individual volumes in two separate series of movies that were clearly identified as different films, each with distinctive cover designs. Schauz then viewed the three movies, summarizing their contents in a report to Paulus. Paulus reviewed the report and concluded that probable cause existed for a violation of the Wisconsin obscenity statute. Paulus then advised Novotny and Schauz that in light of the decision of this court upholding Section 944.21, and the subsequent denial of certiorari by the United States Supreme Court, the investigation should proceed. Around that same time, a yet unknown individual advised Schauz that he should seize all volumes of movies for which he had reviewed a single copy.

Those investigating Supreme Video then prepared a search warrant, supported by an affidavit signed by Schauz, which they submitted for review to Judge William Crane of the Circuit Court for Winnebago County. Neither the warrant nor the affidavit stated that any of the movies were parts of a series, nor did Schauz inform Judge Crane on the record of his intention to seize copies of all volumes of the films. After reviewing the warrant and supporting materials, Judge Crane signed the warrant without modification. 1

On April 6, 1991, Schauz and other Oshkosh Police Department officers executed the search warrant. The officers informed the employee on duty at Supreme Video that they were seizing all Wall to Wall the Way You Like It, Juicy Lucy, and Home Movie Productions movies. The officers then seized pertinent business records and the following tapes: (1) one copy of Wall to Wall the Way You Like It volumes 1-4, 8-15, 17, and 18; (2) one copy of Home Movie Productions editions 1 and 6-8; (3) two copies of Home Movie Productions editions 3 and 5; and (4) three copies of Home Movie Productions editions 2 and 4.

Counsel for Supreme Video reacted by demanding the return of its business records once copied, duplicate videotapes, and any item seized without prior approval from the Wisconsin Attorney General. Supreme Video also requested an adversarial hearing on the issue of whether any of the videotapes violated Section 944.21. Supreme Video communicated these demands by letter to Schauz, Thome, Paulus, and the city clerk. The City responded by returning all business records and all duplicate tapes as well as some originals, but the City retained single copies of twelve videotapes. The City has neither held a hearing on the nature of the tapes nor charged Supreme Video with any Section 944.21 violations.

Supreme Video filed this suit on July 15, 1992, claiming that Schauz and Thome violated its First, Fourth, and Fourteenth Amendment rights by conducting an illegal search and seizure. 2 Supreme Video sued Schauz and Thome in their personal capacities, seeking compensatory and punitive damages, and in their official capacities, seeking injunctive and declaratory relief. The defendants moved for summary judgment, arguing that qualified immunity protected them in their personal capacities and that no other relief was appropriate.

The district court granted summary judgment in favor of the defendants on all claims. The court held that qualified immunity protected Schauz and Thome in their personal capacities because, among other things, it was objectively reasonable to believe that "copies" included "volumes." Additionally, the court held that the remedy of an injunction was unavailable to Supreme Video against Schauz and Thome in their official capacities because Supreme Video failed to pursue available state procedures for securing the return of the movies. See Wis.Stat. Sec. 968.20(1). Supreme Video now contests both of these conclusions.

A. Personal Capacities

Any person who, under color of state law, deprives another person of a right, privilege, or immunity secured by the United States Constitution is subject to personal liability for the deprivation. 42 U.S.C. Sec. 1983. State officials, however, can raise qualified immunity as a defense to Section 1983 actions. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (officers enforcing defective search warrants may assert qualified immunity defense). Officials are immune from civil damages if their actions were objectively reasonable, meaning that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In the context of police officers who have executed an unconstitutional search or seizure, we must ask "whether a reasonably well-trained officer would have known that the search [or seizure] was illegal despite the magistrate's authorization." United States v. Leon, 468 U.S. 897, 922 n. 23, 104 S.Ct. 3405, 3420 n. 23, 82 L.Ed.2d 677 (1984), quoted in Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986).

The requirement that search warrants particularly describe the things to be seized is a bedrock of Fourth Amendment jurisprudence, and when the basis for a seizure is the ideas contained therein, "the most scrupulous exactitude" is required in crafting the warrant. See Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965); see also In re Search of Kitty's East v. United States, 905 F.2d 1367, 1372-73 (10th Cir.1990). There is more to demonstrating that the law was clearly established, however, than alleging the violation of broad constitutional rights. Schertz v. Waupaca County, 875 F.2d 578, 583 (7th Cir.1989). Our inquiry must be fact intensive, not one of generalities. Rakovich v. Wade, 850 F.2d 1180, 1202 (7th Cir.), cert. denied 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). The two specific issues we must confront in this case are first, whether it was clearly established at the time of the seizure that the reference to the title of a series, rather than each individual volume number, is insufficiently particular to permit seizure of individual volumes within the series; and second, whether Schauz' failure to inform the magistrate judge that his affidavit was referring to the title of the series, rather than the specific title of a movie, exposes him to personal liability.

1.

Interestingly, both Supreme Video and Schauz and Thome have focused solely on the issue of whether at the time Schauz executed the search warrant, it was clearly established that an authorization to seize "copies" of Wall to Wall the Way You Like It and Home Movie Productions did not permit seizing multiple "volumes" of the same. Assuming arguendo that "copies" and "volumes" are distinct concepts when referring to video cassettes, a more central question remains: whether it was clearly established that the reference to the title of a series, rather than each individual volume number, is insufficiently particular to permit seizure of individual volumes within the series.

An example illustrates why we must address this issue first. In the Rocky series, the movies are entitled Rocky, Rocky II, Rocky III, etc. A warrant permitting only the seizure of all copies of Rocky would allow the officer to seize Rocky, but not Rocky II and Rocky III--Rocky is the name of a specific movie, and the "Rocky series" should be identified as such to permit seizing all movies within the series.

In this case, however, the movie titles are Home Movie Productions, Edition 1, Home Movie Productions, Edition 2, Home Movie Productions, Edition 3, etc. The warrant permits seizure of Home Movie Productions, but no individual movie by that title exists 3--each movie, even the first, is followed by a volume number. 4 The same is true of Wall to Wall the Way You Like It. Thus, the warrant either encompassed all of the movies or none of them, and the "copies" versus "volumes" concern therefore is secondary.

Schauz' belief that the warrant permitted seizure of all movies within the two named series was objectively reasonable. This is not a case of a warrant permitting seizure of Home Movie Productions, Edition 1, and Home Movie Productions, Edition 1, Home Movie Productions, Edition 2, and Home Movie Productions, Edition 3 being seized. 5 The warrant gives the titles of two movie series without referring to a specific volume number, leaving open the reasonable interpretation that seizure of all volumes within the two series was permissible. Additionally, this is not a case of a warrant permitting seizure of Star Wars, and Star Wars, The Empire Strikes Back, and Return of the Jedi being seized. The...

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