275 F.3d 391 (4th Cir. 2001), 00-2260, Trulock v. Freeh

Docket Nº:00-2260
Citation:275 F.3d 391
Party Name:NOTRA TRULOCK, III; LINDA CONRAD, Plaintiffs-Appellants, v. LOUIS J. FREEH, in his personal capacity; NEIL GALLAGHER, in his personal capacity; STEVE DILLARD, in his personal capacity; BRIAN HALPIN, in his personal capacity; STEVEN CARR, in his personal capacity; JANE DOE, I, in her personal capacity, Defendants-Appellees.
Case Date:December 28, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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275 F.3d 391 (4th Cir. 2001)

NOTRA TRULOCK, III; LINDA CONRAD, Plaintiffs-Appellants,

v.

LOUIS J. FREEH, in his personal capacity; NEIL GALLAGHER, in his personal capacity; STEVE DILLARD, in his personal capacity; BRIAN HALPIN, in his personal capacity; STEVEN CARR, in his personal capacity; JANE DOE, I, in her personal capacity, Defendants-Appellees.

No. 00-2260

United States Court of Appeals, Fourth Circuit

December 28, 2001

Argued: May 7, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-00-1268-A)

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COUNSEL ARGUED: Larry E. Klayman, JUDICIAL WATCH, INC., Washington, D.C., for Appellants. Richard Alan Olderman, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Paul J. Orfanedes, Brett M. Wood, John L. Martin, JUDICIAL WATCH, INC., Washington, D.C., for Appellants. Stuart E. Schiffer, Acting Assistant Attorney General, Helen F. Fahey, United States Attorney, Barbara L. Herwig, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before MICHAEL and GREGORY, Circuit Judges, and Benson Everett LEGG, United States District Judge for the District of Maryland, sitting by designation.

OPINION

LEGG, District Judge:

This case requires us to determine whether the Appellants' complaint, which the district court dismissed under FRCP 12(b)(6), alleges sufficient facts to proceed to discovery. We agree that their Fourth Amendment claims (count one), alleging an illegal interrogation and search of a townhouse and a computer, were properly dismissed, primarily on the basis of qualified immunity. We conclude, however, that the complaint sufficiently pleads a claim under the First Amendment that the Defendants searched Trulock's home and computer in retaliation for a magazine article that Trulock wrote, criticizing the White House, the Federal Bureau of Investigation ("FBI") and other departments of the federal government. Accordingly, we reverse and remand the First Amendment claim (count two) for further proceedings.

I.

Notra Trulock served as the Director of the Office of Intelligence of the U.S. Department of Energy ("DOE") from 1994 to 1998. From 1995 to 1998, Trulock also served as the DOE's Director of the Office of Counterintelligence. Trulock alleges that he uncovered evidence that Chinese spies had systematically penetrated U.S. weapons laboratories, most significantly the Los Alamos Nuclear Laboratory. Trulock contends that the White House, the FBI, and the Central Intelligence Agency ("CIA") ignored his repeated warnings about the espionage. Congress eventually learned of the security breach and in 1998 invited Trulock to testify, which he did on several occasions. That same year, Trulock was demoted within the DOE; he was ultimately forced out in 1999.

In early 2000, Trulock wrote an account of his findings, which criticized the White House, the DOE, the FBI, and the CIA for turning a blind eye to the security breach. Trulock claims that the manuscript did not include any classified information. Nonetheless, in March of 2000, Trulock submitted the manuscript to the DOE for a security review, but the DOE declined to examine it. Afterward, Trulock sent the manuscript to the National Review, which published an excerpt in an edition that was circulated in early July of 2000. Although neither side placed the article in the record, the parties agree that it charged the administration with incompetence.

Plaintiff Linda Conrad has been the Executive Assistant to the Director of the Office of Intelligence at the DOE for more than six years. During Trulock's tenure

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she reported to him. Conrad now reports to Trulock's successor, Lawrence Sanchez. Trulock and Conrad live in a Falls Church, Virginia townhouse, which Conrad owns.

Conrad alleges that on the morning of July 14, 2000, when she arrived at work, Sanchez took her aside to say that the FBI wanted to question her about Trulock. Sanchez warned her that the agents had a warrant to search the townhouse and would break down the front door, in the presence of the media, if she refused to cooperate. Although the Plaintiffs allege that Sanchez made this statement to Conrad "on behalf of the FBI," the complaint does not recite a factual basis for this assertion. Nor does the complaint allege that any of the five individual Defendants either directed Sanchez to make the threat or knew about it.

Later that day, around 4:00 p.m., FBI Special Agents Brian Halpin and Steven Carr arrived at DOE headquarters and escorted Conrad to a conference room. Although the complaint states that they were armed, Conrad does not contend that the agents displayed their weapons, raised their voices, or otherwise threatened her during the three hour interview.

According to the complaint, Conrad was able to receive two incoming telephone calls, one of which was from Trulock, but that the agents "would not let [her] take either telephone call in private." (J.A. at 9.) The complaint further alleges that the agents refused to allow Conrad to make any outgoing calls. The complaint implies that Conrad was not at liberty to leave the conference room. When questioned on this point during oral argument, however, Conrad's attorney could not assert that she ever tried to leave the room (e.g., to place a call in private) or that the agents told her that she was not free to terminate the interview and leave.

The agents queried Conrad about Trulock's personal records and computer files. Conrad responded that she shared a computer with Trulock, but that each of them maintained separate, passwordprotected files on the hard drive. Conrad and Trulock did not know each other's passwords and could not, therefore, access each other's private files, Conrad stated.

The agents questioned Conrad for about three hours. Towards the end of the interview, the agents gave Conrad a form, which they asked her to sign. The complaint alleges that the agents did not explain the form to Conrad and that Conrad did not read it, learning only afterwards that she had consented to a search of her house. The complaint does not allege that the agents claimed to have a search warrant, threatened to break down Conrad's door if she refused to sign, or mentioned the media. Conrad does maintain, however, that she was fearful, crying and shaking.

At the end of the questioning, the agents followed Conrad to her townhouse, where Trulock was waiting. When Trulock asked to see the search warrant, the agents responded that they had no warrant but that Conrad had consented to the search. The complaint does not contend that Conrad tried to withdraw her consent or that Trulock tried to bar the search on the ground that his consent, as a resident of the house, was also necessary.

The agents located the computer in the bedroom. Special Agent Carr and an unidentified FBI computer specialist (named in the complaint as Jane Doe I) searched the computer's files for about ninety minutes. The complaint alleges that Agent Carr looked at Trulock's password protected files. When the search was over, the specialist, after giving Conrad a receipt, took the hard drive away.

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Two weeks later, Conrad and Trulock filed the instant Bivens suit.1 Count one of the complaint, brought under the Fourth Amendment, alleges that: (i) the Defendants violated Conrad's rights by seizing her during the interview; (ii) the Defendants violated Conrad and Trulock's rights by coercing Conrad's consent to search their home; and (iii) that Conrad's consent, even if voluntary, was insufficient to permit the search of Trulock's private computer files. In count two, brought under the First Amendment, Trulock contends that the FBI conducted the search and seizure in direct retaliation for the unflattering magazine article.

Prior to discovery, the Defendants moved under Fed. R. Civ. P 12(b)(6) to dismiss the complaint, arguing that it failed to state a constitutional violation either for unlawful search and seizure or for retaliation. Each Defendant also argued that he was entitled to qualified immunity on both counts. The district court granted Defendants' motion to dismiss, holding that the Defendants, having violated no clearly established law, were entitled to qualified immunity. With respect to Trulock's retaliation claim, the district court concluded that "other than the timing of the interrogation and search, the complaint presents no indications that the actions by the defendants were other than a good faith effort to determine whether classified information was being unlawfully possessed." (J.A. at 43.)

Because the district court granted Defendants' motion to dismiss, our review is de novo. Stuart Circle Hospital Corp. v. Aetna Health Management, 995 F.2d 500 (4th Cir. 1993). Like the district court, we must assume all facts plead by Appellants to be true. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

II.

Qualified immunity shields government officials from civil liability "insofar as 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 (1982). This immunity "protects law enforcement officers from`bad guesses in gray areas' and ensures that they are liable only `for transgressing bright lines.'" Wilson v. Collins, 141 F.3d 111, 114 (4th Cir. 1998)...

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