Zarnow v. City of Wichita Falls, Tex.

• Citation: 500 F.3d 401
• Decision Date: 13 September 2007
• Docket Number: No. 06-10693.,06-10693.
• Parties: Delores A. ZARNOW, Plaintiff-Appellee, v. CITY OF WICHITA FALLS, TEXAS; Chief of Police Ken Coughlin; Sergeant Roger Kendall; Bobby Dilbeck; Dennis Keethler, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

500 F.3d 401

Delores A. ZARNOW, Plaintiff-Appellee, v. CITY OF WICHITA FALLS, TEXAS; Chief of Police Ken Coughlin; Sergeant Roger Kendall; Bobby Dilbeck; Dennis Keethler, Defendants-Appellants.

No. 06-10693.

United States Court of Appeals, Fifth Circuit.

September 13, 2007.

Rickey G. Bunch (argued), Law Office of Rickey G. Bunch, Wichita Falls, TX, for Zarnow.

Julia Maria Vasquez, Wichita Falls, TX, for City of Wichita Falls, TX.

D. D'Lyn Davison (argued), Davison, Rugeley & Spurgers, Robert Kinley Hegglund, Wichita Falls, TX, for Coughlin, Kendall, Dilbeck and Keethler.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Some people enjoy collecting baseballs cards or rare coins. Dr. Allen Zarnow enjoyed collecting weapons and explosives. While the unexpected workplace discovery of a collector's Mickey Mantle rookie cards or buffalo nickels might be met with amusement by co-workers, however, the discovery of guns and blasting caps provokes a much stronger reaction, especially a workplace available to the public. This case arises out of the latter context, posing the question of whether police officers are entitled to qualified immunity when they reacted hastily to a perceived danger. We DISMISS in part and REVERSE in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Initial Police Response

On July 13, 1999, officers from the Wichita Falls Police Department responded to a call at the Clinics of North Texas ("the Clinic"). Clinic employees had discovered a gun, magazine, box of shells, .50 caliber armor-piercing ammunition, blasting caps, fuse cord, and fuse-type materials — described by responding firefighters as "finger poppers" or "little booby-traps" — inside Zarnow's office desk. Zarnow, a Clinic doctor for fifteen years, was on vacation at the time.

The first police officer to arrive at the scene observed the items and, based on his previous military experience, opined that they were "dangerous." The Clinic staff told him that Zarnow was a "gun expert and salesman," had talked about purchasing a rocket launcher, and often launched rockets and blew up stumps on his land in Oklahoma. The officer briefed Police Sergeant Joe Snyder and contacted the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Snyder telephoned Police Sergeant Roger Kendall, and informed him of the "bomb call" at the Clinic. Kendall arrived at the scene shortly after 5:00 p.m.

Kendall ordered Officer Dennis Keethler to conduct a videotaped interview of Nurse Kyle. The contents of this interview, which officers relied upon in the decision to obtain search warrants, are hotly disputed. Most significantly, according to Keethler, Nurse Kyle reported Zarnow having said that "it would be easy to bomb the local facilities." Kyle now denies making any such statement, and the statement does not appear on the videotape of the interview. Kyle also reportedly told Keethler that Zarnow was opposed to the local mergers of medical facilities, including the Clinic, was moody and acted kind of manic depressive, and that she was scared because she did not want him to "come after" her.

After 7:00 p.m., a U.S. Army sergeant specializing in explosive ordinance disposal entered the office and discovered a riot bomb, smoke grenades, black powder, and 48 bottles of nitromethane liquid known as Kinepak, a binary explosive.

B. The Warrants

At 5:40 p.m., Kendall dispatched Detective Kyle Collier to prepare an affidavit and procure a search warrant for Zarnow's home in Wichita Falls. The warrant stated that the specific offense believe to be committed was "possession of illegal explosives and other explosive devices" in violation of Texas Penal Code sections 46.05 and 46.09. The warrant asserted that "explosives" and "explosive devices" were found inside Zarnow's office, that "this residence is supposed to be booby trapped according to an employee that works with Dr. Zarnow," that "Zarnow had told employees that he is in possession of a rocket launcher," and that the "dangerous explosives" at the office were identified by "an expert on bombs and explosives" based on his "experience with the military."

The warrant's only suggestion that there would be illegal weapons at Zarnow's house was the claim that he "is also known to be in possession of various guns and ammunition at his residence and has his gun safe booby trapped with tear gas if someone attempts to enter." A magistrate approved a warrant to search for any explosive devices or prohibited weapons, along with any documents or notes corresponding to ownership of the weapons or the house.

At 5:55 p.m., Kendall sent Officer Bobby Dilbeck to obtain a search warrant for a locked file cabinet in Zarnow's office. The cabinet warrant was based on a belief that Zarnow was "unlawfully in possession of prohibited weapons, to wit, explosive devices." The warrant asserted that officers had found "numerous explosive devices inside the office," that bomb squad personnel had asserted that "the devices found were explosive," and that an employee had "stated that Zarnow has talked to having various types of other explosive devices in his possession." A magistrate approved this warrant as well.

C. The Search

Police tactical officers surrounded Zarnow's residence at approximately 6:30 p.m., began surveillance, and awaited further instructions. During the surveillance, officers learned that Zarnow had returned home from his family vacation. Detectives called him by phone and asked that he walk outside with his hands above his head. Zarnow complied and officers frisked him for weapons. The officers briefly spoke to him at his home, at which time he stated that he had two loaded guns in the house and two locked gun safes. Officers escorted Zarnow to the police station where Officer Dilbeck and an ATF agent interrogated him. Zarnow assured them that he had all the necessary paperwork, including a firearm dealer's license, to possess and own all the weapons and other materials that the officers had found. Zarnow then accompanied the officers back to the home so that he could show them the paperwork.

Zarnow showed the paperwork to an ATF agent while Dilbeck and several other officers began a consensual search of the home. The officers found a box marked "explosives" in plain view, at which point Zarnow asked the officers to discontinue the search and leave his home. At that time, Dilbeck executed the house warrant and continued the search without Zarnow's permission.

The search concluded at midnight and officers took Zarnow back to the police station where they resumed questioning him. The next morning, Police Chief Ken Coughlin assembled all of the firearms and ammunition seized at Zarnow's home and laid them out before the television and print news media. Zarnow was jailed for possession of prohibited weapons and bond was set at $500,000. On July 16, police officers executed an additional search warrant at Zarnow's home and lake house and seized additional materials. As a result of the combined searches, the Wichita Falls police department seized several thousand rounds of assorted ammunition and hundreds of weapons, including revolvers, a switchblade knife, shotguns, rifles, a flare launcher, an M-60 machine gun, a 0.9 mm Uzi, a spotter scope, four silencers, and a stun gun. Police also seized currency, bonds, and silver.

The Wichita County Grand Jury subsequently no-billed Zarnow, and the Montague County prosecutor declined to bring any charges against him with regard to the items seized from the lake house. Soon thereafter, Zarnow demanded return of the seized items, most of which were returned, but many of which were lost or unaccounted for.

Zarnow brought this case pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that his constitutional rights were violated by the officers of the Wichita Falls Police Department, North Central Texas Drug Task Force, and by the City of Wichita Falls. He sought monetary compensation for the loss and destruction of the seized ammunition and unreturned items, and compensatory damages for health related damages and punitive damages. Each of the officers claimed qualified immunity and moved for dismissal on the pleadings and summary judgment. The district court dismissed all claims and parties except for Zarnow's Fourth Amendment allegations against the officers and claims related to the alleged unconstitutional seizure policies of the City. The City and officers appeal. During the pendency of this case, Zarnow passed away and is represented by his surviving wife.

II. JURISDICTION

The City of Wichita Falls and Police Chief Coughlin appeal the district court's denial of summary judgment. We lack jurisdiction over that appeal at this time.

Denial of summary judgment on qualified immunity grounds typically falls within the collateral order doctrine, an exception to the final judgment rule. See McKee v. City of Rockwall, 877 F.2d 409, 412 (5th Cir.1989) (stating that "interlocutory appeal is permissible only with respect to a decision which conclusively determines a disputed question, and which involves a claim of right separable from, and collateral to, rights asserted in the action") (citing Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Because qualified immunity is premised on an officer's "right to be free from suit," McKee, 877 F.2d at 413, the denial of qualified immunity, even early in litigation, conclusively disposes of the officer's right, a collateral issue. Id.

Municipalities and officers in their official capacity, however, have no comparable right to be free from suit. Burge v. Parish of St. Tammany, 187 F.3d 452, 476 (5th Cir.1999). The district court's denial of summary judgment for the City and Chief Coughlin does not dispose of any collateral issue; it marks only an initial judgment on the merits of...