Blake v. Wright, 97-3907.

Citation179 F.3d 1003
Decision Date15 June 1999
Docket NumberNo. 97-3907.,97-3907.
PartiesCraig BLAKE; Jill Blake; Dan Anders; Brad Borowy; Brian Dalton; Melissa Dalton; John Ducas; Lynda Ducas; Brian Kavaras; David Kata; Constance Kata; John Novak; Stacey Novak, Plaintiffs-Appellees, v. Fred WRIGHT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

COPYRIGHT MATERIAL OMITTED

Paul W. Flowers (argued), Cleveland, OH, W. Craig Bashein (briefed), Bashein & Bashein Co., L.P.A., Cleveland, OH, for Plaintiffs-Appellees.

Kurt D. Weaver (briefed), Colleen G. Treml (briefed), Stephen M. O'Bryan (argued and briefed), Kelley, McCann & Livingstone, Cleveland, OH, for Defendant-Appellant.

Before: KENNEDY and RYAN, Circuit Judges; HACKETT, District Judge.*

Rehearing and Suggestion for Rehearing En Banc Denied August 19, 1999.

OPINION

KENNEDY, Circuit Judge.

Defendant Fred Wright appeals the district court's denial of his motion to dismiss based on qualified immunity in this action alleging Wright recorded Plaintiffs' private telephone conversations and monitored them without their consent or knowledge in violation of their constitutional right to privacy in wire communications under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983, the Federal Electronic Communications Privacy Act, otherwise commonly known as Title III of the Omnibus Crime Control Act under 18 U.S.C. §§ 2510-2522 ("Title III"),1 and the Ohio wiretap statute, Ohio Rev.Code Ann. § 2933.52(A). Wright responded to the charges filed against him in his individual capacity by claiming qualified immunity to the federal charges and filed a Motion to Dismiss the claims against him pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 16, 1997, the district court denied Wright qualified immunity. For the reasons that follow, we now REVERSE in part and AFFIRM in part.

I.

The Ohio wiretap statute allows interception of telephone communications into and out of a police department if the telephone lines are limited to use for administrative purposes and at least one other unrecorded telephone line is available for private conversations.2 On June 11, 1996, the City of Independence, Ohio, by way of a written Resolution passed in a public session, purchased a DigiVoice, Inc. Digital Recording system to use in the city's police and fire departments. On July 23, 1996, at the direction of ex-Chief of Police Wright, the system was installed to record all incoming and outgoing telephone calls at the Independence Police Department. In accordance with the Ohio wiretap statute, a pay phone in the police department and ex-Chief Wright's phone were excluded from the monitoring device. Plaintiffs allege that prior to the new DigiVoice system, the police department had monitored only "emergency lines" and ex-Chief Wright had approved and followed a departmental policy that permitted the officers to use the non-emergency lines for personal calls. The system, as installed, did not contain an audible or regular tone to alert callers that their conversations were being recorded.

On August 2, 1996, Plaintiff Blake allegedly overheard Wright playing a recording in his office of a personal telephone call Blake had conducted on a non-emergency line. Subsequently, on August 7, 1996, the Department issued an e-mail memorandum that notified employees that all personal telephone calls on non-emergency lines would be monitored and recorded. On August 8, 1996, upon recommendation of the Cuyahoga County prosecutors, the system was disconnected from the non-emergency lines.

On October 28, 1996, Plaintiffs filed this action against Wright and the City of Independence. Wright responded in his individual capacity by asserting qualified immunity, claiming that it was reasonable for him to conclude that the Ohio wiretap statute authorized the installation of the recording system within the meaning of the "statutory authorization" exception of Title III.3 Consequently, Wright claimed it was not clearly established that installing a recording system on the police department's phone lines and tapping those phone lines violated either the Fourth Amendment or Title III and he was thus entitled to qualified immunity under both counts. We address his arguments in turn.

II.

Qualified immunity is an affirmative defense that extends to government officials performing discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The Supreme Court crafted the qualified immunity defense "to protect public officials `from undue interference with their duties and from potentially disabling threats of liability.'" Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994) (quoting Harlow, 457 U.S. at 806, 102 S.Ct. at 2732). Under this judicially created exception, government officials are immune from civil liability when acting in their official capacities if their actions do "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. 2727; see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) ("Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action . . . assessed in light of the legal rules that were `clearly established' at the time it was taken.").

We review a district court's denial of qualified immunity de novo. Greene v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996); Thomas v. Whalen, 51 F.3d 1285, 1289 (6th Cir. 1995). The defendant bears the burden of pleading the defense, but the plaintiff must show that the defendant is not entitled to qualified immunity. Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991). Supreme Court precedent dictates that courts must resolve immunity questions at the earliest possible stage of litigation because qualified immunity is an immunity from suit rather than an affirmative defense, Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991), and thus a party may immediately appeal a district court's denial of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996) ("An order rejecting the defense of qualified immunity at either the dismissal state or the summary judgment stage is a `final judgment' subject to immediate appeal."); Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).

In order to determine whether qualified immunity applies, a twofold inquiry is necessary. Greene, 80 F.3d at 1104. First, the court must examine whether the alleged constitutional or statutory violations were "clearly established" at the time of the alleged violations. "A right is clearly established if there is binding precedent from the Supreme Court, the Sixth Circuit, or the district court itself, Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994), or case law from other circuits which is directly on point." Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (citing Cameron v. Seitz, 38 F.3d 264, 272-73 (6th Cir. 1994)). Although the absence of a case on point does not necessarily endow a public official with public immunity, "when this court can uncover only some generally applicable principle, its specific application to the relevant controversy must again have been `clearly foreshadowed by applicable direct authority.'" Summar v. Bennett, 157 F.3d 1054, 1058 (6th Cir. 1998). Further, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted). Although the very action in question need not previously have been held unlawful, "in light of the pre-existing law the unlawfulness must be apparent." Id.

Once it is determined that the right is clearly established, the court then must decide whether a reasonable person in the defendant's position would have known that his or her actions violated clearly established rights.4 Greene, 80 F.3d at 1104. Such a test reflects an objective standard, making the official's subjective intent irrelevant. Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 1592, 140 L.Ed.2d 759 (1998). Further, a defendant appealing the denial of qualified immunity must accept the facts alleged by the plaintiff for purposes of the appeal. See Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998). Because we review interlocutory appeals concerning qualified immunity on purely legal grounds and leave all factual issues for trial, Johnson, 515 U.S. at 313-18, 115 S.Ct. at 2156-58, a ruling in the defendant's favor is inappropriate if a genuine issue of material fact exists as to whether the defendant committed acts that allegedly violated clearly established rights. Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir. 1994). Against this backdrop, we turn to the instant case.

A.

We first examine whether Wright is entitled to qualified immunity under the Fourth Amendment5 because the law was "clearly established" that Plaintiffs had a reasonable expectation of privacy in their phone calls at the time of the alleged recordings in 1996. The district court found that "at the time Wright took his actions, a clearly established legal rule existed that he could not intercept private telephone communications without first obtaining a warrant, absent some exception to the warrant requirement." Although we acknowledge that the Fourth Amendment warns of inherent dangers with wiretapping, we agree with Wright that the case law, when examined with the relevant Ohio statute, was sufficiently uncertain regarding the unlawfulness of...

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