Krohn v. U.S.
| Citation | 742 F.2d 24 |
| Decision Date | 28 September 1984 |
| Docket Number | No. 83-1839,83-1839 |
| Parties | Kenneth B. KROHN, Plaintiff, Appellee, v. UNITED STATES of America, et al., Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
Richard E. Welch, III, Asst. U.S. Atty., Boston, Mass., with whom Mark L. Wolf, Acting U.S. Atty., and Paul W. Johnson, Asst. U.S. Atty., Boston, Mass., were on brief, for defendants, appellants.
Kenneth B. Krohn, pro se.
Before COFFIN and ALDRICH, Circuit Judges, and BONSAL, * Senior District Judge.
Plaintiff's amended complaint, originally in 44 counts, asserts civil damages claims for false arrest and other civil rights violations arising from an FBI investigation into the unexplained disappearance in 1973 of one Raul Hernandez-Bustamonte. Of the claims relating to actions in 1973, only part of one count, count 28, remains for our consideration; a number of counts remain with respect to actions in 1974. Count 28 has been before us once. Krohn v. United States, 566 F.2d 1166 (1st Cir.1977) (unpublished). Presently, the defendant federal officials appeal from the district court's denial of their defenses of absolute and qualified immunity, raising obvious questions of appealability. 578 F.Supp. 1441. 28 U.S.C. Sec. 1291. We must first, however, review the facts.
Plaintiff was arrested in 1973 on a kidnapping charge, pursuant to a duly issued federal warrant. The arrest followed an investigation which included searches of various of plaintiff's properties, including a safe deposit box in Boston. This charge was eventually dropped, but the investigation continued, and in 1974 plaintiff was again arrested, on the same charge, on a new federal warrant. At that time a Maryland arrest warrant also issued, charging plaintiff with Hernandez's murder. Plaintiff claims that this warrant was procured at the request of the federal officials, and entirely on information supplied by them.
The federal charges were dismissed by a magistrate for want of probable cause, and as plaintiff was leaving the courtroom he was detained by a federal official pursuant to the Maryland warrant. After half an hour he was released, allegedly because the Maryland authorities indicated they did not wish to prosecute. Plaintiff complains of this half hour.
What remains of count 28 alleges a state law claim against a federal prosecutor, William Brown, several agents of the FBI, and plaintiff's former attorney, James Pool, for conspiracy to convert plaintiff's property contained in the Boston safe deposit box. Plaintiff claims that during the investigation, Brown and Pool struck a deal whereby Brown would supply the key--in his possession due to a prior search of plaintiff's apartment--if Pool would supply the location of the box so that Brown might search it. Plaintiff claims that Pool "stole" several thousand dollars from the box, (a palpable exaggeration, see n. 7, post) and that Brown knew of Pool's intentions when he struck the deal. Brown and the FBI officers 1 now claim an absolute immunity from such a state law claim, under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).
The remaining claims are brought directly under the Constitution, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under 42 U.S.C. Sec. 1983, 2 and are related to the 1974 warrants and detentions. The 1974 federal warrant was based upon a six-page affidavit of defendant FBI agent Baugh. On appeal the gist of all of plaintiff's 1974 claims is that Baugh intentionally misrepresented facts in the affidavit that were necessary to the determination of probable cause. These misstatements allegedly rendered the federal arrest illegal (count 7); they also infected the federal officials' transmittal of information to the Maryland authorities (counts 8 and 10), and the subsequent detention pursuant to the Maryland warrant (counts 9 and 11), inasmuch as defendant federal officials involved knew that there was insufficient information to establish probable cause.
Essentially, then, these claims allege the constitutional violation recognized in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where the Court held that a warrant issued upon a magistrate's finding of probable cause is nevertheless invalid, and the evidence obtained thereunder may be suppressed, if the affiant made intentional or reckless misrepresentations or misstatements which were necessary to that finding. See also Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir.1974). Any further allegations of impropriety do not state constitutional violations. As to the arrest pursuant to the federal warrant, if the affidavit, disregarding improper misstatements, still established probable cause, plaintiff is entitled to no further constitutional safeguards, 3 see Franks, ante, 438 U.S. at 172 n. 8, 98 S.Ct. at 2684 n. 8; cf. Baker v. McCollan, 443 U.S. 137, 142-46, 99 S.Ct. 2689, 2693-95, 61 L.Ed.2d 433 (1979), and any intentional misstatement, or actual malice, would be irrelevant. Nor is there any impropriety in sharing information with the state officials, cf. Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959), or any constitutional violation in urging them to obtain a warrant, as long as the available information established probable cause. 4 And a federal official does not violate the Constitution by executing a facially valid state warrant, if he does not know that it is invalid. 5
Plaintiff's allegations of impropriety in 1974 thus reduce to what the federal officials knew concerning the existence of probable cause when they took various actions. Defendant officials claim that they are entitled to summary judgment under the qualified immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), inasmuch as these claims merely allege subjective bad faith, which Harlow held was no longer sufficient to avoid the qualified executive immunity. The lower court denied the immunity claims without citing Harlow. Before we reach the merits, however, we must decide whether the various denials are appealable.
Recently, in Agromayor v. Colberg, 738 F.2d 55 (1st Cir.1984), we held that the denial of a plausible claim of absolute legislative immunity is an immediately appealable "final decision" under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), inasmuch as one of the elements of the immunity is freedom from having to stand trial. For appealability purposes, we see no distinction between the immunity claimed there and the absolute immunity from common law suits for federal officials acting within the scope of their authority here claimed by defendant Brown and the other federal officials. It is perhaps true that reasons other than freedom from having to stand trial, such as federalism concerns, are of greater importance in granting immunity from common law suits than they are in other immunities whose denials have been held to merit immediate appeal; nevertheless, Barr v. Matteo, ante, makes clear that one of the immunity's purposes is to absolve federal officials from the burden of having to stand trial. Barr, ante, 360 U.S. at 571, 79 S.Ct. at 1339. And Brown's claim certainly is plausible, especially in light of the discussion of Barr in Butz v. Economou, 438 U.S. 478, 494-95, 98 S.Ct. 2894, 2904-05, 57 L.Ed.2d 895 (1978), and in the Courts of Appeals. See post. We accordingly have jurisdiction over the appeal in count 28.
The appealability of the denials of qualified immunity presents a more difficult question. Several circuits have now addressed the issue, with different approaches, and differing results. The controversy centers on interpreting the Supreme Court's opinion in Harlow, ante, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The question is whether, in enlarging the executive official's qualified immunity, the Court sufficiently emphasized the immunity as a tool to protect government officials from trial, as opposed to liability, such that pre-trial denials of the immunity should be immediately reviewed. The District of Columbia Circuit and the Eighth Circuit have held that it did. See Evans v. Dillahunty, 711 F.2d 828 (8th Cir.1983); McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982); see also Metlin v. Palastra, 729 F.2d 353, 355 (5th Cir.1984). The Third Circuit, over a strong dissent, has held that it did not. Forsyth v. Kleindienst, 729 F.2d 267 (3rd Cir.1984).
We consider that the importance which Harlow gave the immunity, or, to put it another way, the inhospitality it evidenced towards groundless suits against officials, would best be effected by making denials of the immunity immediately appealable, assuming a plausible claim thereto. As Harlow noted, up until then the so-called "good faith" immunity would be defeated if an official
"knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or, if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury ..." (Emphasis in original.) Harlow, ante, 457 U.S., at 815, 102 S.Ct., at 2737.
Harlow eliminated the second, the state of mind, or purely "subjective" element of this immunity, leaving only objective criteria, requiring an affirmative showing, and thus more easily subject to judicial resolution prior to trial.
One of the reasons the Court gave for this was to cut off insubstantial claims in limine. Such claims proceed to trial at
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