401 F.3d 419 (6th Cir. 2005), 03-5582, Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearmns

Docket Nº:03-5582/5614.
Citation:401 F.3d 419
Party Name:Keith B. BARANSKI, d/b/a Magua Industries and Pars International Corporation, Plaintiffs-Appellants, v. FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Brian Dixon, Michael R. Johnson, Douglas R. Dawson, Mark S. James, Karl L. Stankovic, William J. Hoover, Defendants, United States of America, Defendant-Appellee.
Case Date:March 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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401 F.3d 419 (6th Cir. 2005)

Keith B. BARANSKI, d/b/a Magua Industries and Pars International Corporation, Plaintiffs-Appellants,

v.

FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Brian Dixon, Michael R. Johnson, Douglas R. Dawson, Mark S. James, Karl L. Stankovic, William J. Hoover, Defendants,

United States of America, Defendant-Appellee.

No. 03-5582/5614.

United States Court of Appeals, Sixth Circuit.

March 14, 2005.

Argued: Oct. 28, 2004

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ARGUED:

Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for Appellants.

Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee.

ON BRIEF:

Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for Appellants.

Terry M. Cushing, Candace G. Hill, John E. Kuhn, Jr., Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: KEITH, CLAY, and COOK, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiffs Keith B. Baranski and Pars International Corporation ("Pars") appeal the March 14, 2003 order of the district court holding that Defendants Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and six named ATF agents were entitled to qualified immunity because (1) Plaintiffs suffered no Fourth Amendment violation by virtue of the alleged lack of particularity in the search warrant that Defendants used to seize hundreds of firearms and accessories owned by Baranski and stored by Pars; and (2) the facts did not show that Defendants violated a clearly established constitutional right pursuant to Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Plaintiffs also appeal the court's holding that Plaintiffs' action for damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), would necessarily imply the invalidity of Baranski's criminal conviction related to the importation of the firearms and, therefore, must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). For the reasons that follow, we REVERSE the district court's holding with regard to qualified immunity and AFFIRM, in part, and REVERSE, in part, the district court's dismissal of Plaintiffs' Bivens claims pursuant to Heck v. Humphrey.

I.

A. Substantive Facts

Plaintiff Keith Baranski is a citizen of Ohio who does business as Magua Industries, which imports firearms and ammunition pursuant to a Federal Firearms License issued by the ATF. Plaintiff Pars, a Kentucky corporation, is a tenant of a multiple occupancy commercial structure located at 509 Cheyenne Avenue, Louisville, Kentucky. The ATF has issued Pars a Federal Firearms License to import firearms and ammunition. Pars is the custodian of a U.S. Customs High Security Bonded Warehouse ("CBW") located at 509 Cheyenne Avenue. The U.S. Customs Service has approved the warehouse for the storage of firearms covered by the National Firearms Act ("NFA"), 26 U.S.C. § 5845. Pars routinely receives merchandise from various licensed importers of NFA firearms for storage at its warehouse, and Pars also performs customs broker services on behalf of other importers. On various dates between October and December 2000, the Customs Service authorized Baranski to lawfully enter into the United States approximately 421 firearms and accessories from Bulgaria and Poland and store them in Pars's storage facility.

On January 16, 2001, ATF Agents Brian Dixon and Michael Johnson, named defendants in this lawsuit, interrogated Baranski. They asked about his relationship with another Federal Firearms Licensee,

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Vic's Gun Corporation, and then served him with a grand jury subpoena.

On April 10, 2001, Agent Johnson applied to U.S. Magistrate Judge Cleveland Gambill of the Western District of Kentucky for a search and seizure warrant for Pars's storage facility. The application for search warrant described the place to be searched as follows:

Pars International--Two story tan colored concrete construction building with narrow security windows. Marked "509" above front glass door. A sign indicating that the facility is a "Customs Bonded Warehouse" is posted on the door. Located at 509 Cheyenne Avenue, Louisville, Kentucky.

The description of the person or property to be seized stated, "See Attached Affidavit." As to the basis for the search and seizure, the application stated, "See Attached Affidavit." As to the facts supporting a finding of probable cause, the application stated, "SEE attached Affidavit."

The attached affidavit was that of Agent Johnson, who indicated that he has been employed with the ATF for over 10 years and has participated in over 200 criminal firearm investigations. Johnson averred that, after a six-month investigation, there was probable cause to show that Plaintiff Baranski conspired with James Carmi and others to import law enforcement restricted machine guns for resale to Carmi and possibly others, in violation of 18 U.S.C. § 922( o); 26 U.S.C. § 5844; and 26 U.S.C. § 5861(1). Agent Johnson stated that the machine guns at issue were being stored at Pars, a Customs Bonded Warehouse, located at 509 Cheyenne Avenue, Louisville, Kentucky.

Johnson elaborated that Carmi, a previously convicted felon, assumed a false identity in order to operate a federally licensed firearms business called Vic's Gun Corporation. Pursuant to an ATF investigation of Vic's, Carmi was discovered with over 700 machine guns and firearms. Seized documents suggested a relationship between Carmi and Baranski. (Carmi subsequently was indicted in the United States District Court for the Eastern District of Missouri.)

Johnson's affidavit further explained that Baranski imported about 500 machine guns ostensibly as dealer samples for sale to law enforcement, which 18 U.S.C. § 922( o) permits. By January 2001, Baranski had removed at least 49 firearms from Pars's Custom Bonded Warehouse after submitting letters purportedly from the Farber, Missouri, police chief requesting a demonstration of the machine guns. The affidavit recounted an interview in which Baranski told Johnson that Carmi had agreed to pay Baranski for the firearms and that about 425 machine guns remained at Pars's warehouse. The affidavit also recounted Agent Johnson's interview with the Farber, Missouri, police chief who had explained that he had fraudulently composed the letters with the expectation of remuneration, that he had no knowledge of Baranski's firearms company, and that he had no intention of receiving a machine gun demonstration from Baranski. Documents seized from Carmi, and later Carmi himself, confirmed that Carmi had acted as an intercessor between Baranski and the police chief to obtain fraudulent police demonstration request letters in order to remove machine guns from Pars's warehouse.

Agent Johnson's affidavit concluded as follows:

I have probable cause to believe that a large number of law enforcement restricted machineguns were fraudulently imported into the United States with the intention of further being distributed and sold to others involved in the conspiracy. I also have probable cause to

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believe that the machine guns in question are currently being stored at the Pars International Custom's Bonded warehouse, 509 Cheyenne Avenue, Louisville, Kentucky.

Later in the morning of April 10, 2001, Magistrate Judge Gambill granted Agent Johnson's application for a search warrant. The warrant, like the application, described the property or premises as follows:

Pars International--Two story tan colored concrete construction building with narrow security windows. Marked "509" above front glass door. A sign indicating that the facility is a "Customs Bonded Warehouse" is posted on the door. Located at 509 Cheyenne Avenue, Louisville, Kentucky.

The warrant indicated that "there is now concealed a certain person or property, namely ... See Attached Affidavit." The magistrate judge ordered the application for the search warrant and the supporting affidavit to be sealed.

On April 11, 2001, approximately 21 ATF agents, armed with the warrant, demanded entrance into 509 Cheyenne Avenue, where Pars's storage facility is located. The agents were greeted by Saeid Shafizadeh, who managed the facility. Shafizadeh requested to see the affidavit referenced in the search warrant but that was not attached to it. ATF Agent (and individual defendant) Karl Stankovic responded that the affidavit was part of the court records, which were sealed. Agent Johnson allegedly stated that the warrant was for the entire two-story building and that unless Shafizadeh directed the agents to Baranski's property, they would search the entire building. Shafizadeh then asked Customs' Port Director, Frank Dupre, to read the warrant, and Dupre stated that, according to the warrant, the place to be searched was the Customs Bonded Warehouse. Customs Inspector James Thompson indicated that the warehouse was located in the basement of the building. Shafizadeh insisted that the warrant was defective without a description of what was to be seized and indicated that his acquiescence to let the agents enter the building was not voluntary.

Shafizadeh directed the agents to a secured vault in the basement of the building, which he identified as the Custom Bonded Warehouse portion of the building. Shafizadeh identified the section of the vault for firearms imported and owned by Baranski. Defendants seized Baranski's 372 firearms and 12 wooden crates containing firearm parts. The ATF agents did not search...

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