793 F.2d 166 (8th Cir. 1986), 85-5169, Freeman v. Blair

Docket Nº:85-5169.
Citation:793 F.2d 166
Party Name:Glenn T. FREEMAN and Lucy E. Freeman, individually and d/b/a Belvidere East KOA Kampground, Appellants, v. Richard W. BLAIR, individually and in his capacity as Secretary of Health, State of South Dakota; Douglas E. Kludt, individually and in his capacity as Assistant Attorney General, State of South Dakota; Michael J. Baker, individually and in hi
Case Date:June 04, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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793 F.2d 166 (8th Cir. 1986)

Glenn T. FREEMAN and Lucy E. Freeman, individually and d/b/a

Belvidere East KOA Kampground, Appellants,

v.

Richard W. BLAIR, individually and in his capacity as

Secretary of Health, State of South Dakota; Douglas E.

Kludt, individually and in his capacity as Assistant

Attorney General, State of South Dakota; Michael J. Baker,

individually and in his capacity as Assistant Program

Director, Department of Health, State of South Dakota; John

Does "A" through "K" whose true names are not known, but are

believed to be officers, agents or employees of the State of

South Dakota, Appellees.

No. 85-5169.

United States Court of Appeals, Eighth Circuit

June 4, 1986

Submitted Feb. 11, 1986.

Page 167

[Copyrighted Material Omitted]

Page 168

Glenn T. Freeman, Midland, S.D., for appellants.

Page 169

Mark A. Moreno, Sp. Asst. Atty. Gen., Pierre, S.D., for appellees.

Before HEANEY and BOWMAN, Circuit Judges, and TIMBERS, [*] Senior Circuit Judge.

BOWMAN, Circuit Judge.

Plaintiffs-appellants Glenn and Lucy Freeman filed this section 1983 action against various officials of the state of South Dakota in their official and individual capacities. The Freemans allege that the license to operate their campground was summarily suspended when they refused to submit to an administrative inspection of the premises without a warrant. The Freemans claim that their rights under the Fourth and Fourteenth Amendments were violated. The District Court granted defendants' motion for summary judgment, concluding that the defendants were entitled to absolute or qualified immunity from suit for their actions. We reverse.

I.

The Freemans own a small farm in Jackson County, South Dakota and, since 1965, have operated the Belvidere East K.O.A. Kampground (the campground). On July 27, 1982, Michael Baker, Assistant Program Director for the South Dakota Department of Health (the Department of Health or the Department), and another Department employee arrived at the campground and requested permission to conduct an inspection, citing two sections of the South Dakota Codified Laws as their authority to do so without a search warrant. The Freemans refused to allow the inspection without a warrant, believing that there was insufficient statutory authority for at least part of the proposed search and that the inspection would not be conducted fairly. The Department officials departed without incident.

The following day, Baker wrote a memorandum to Richard Blair, the Secretary of the Department, recommending suspension of the Freemans' campground license unless Blair thought that a search warrant was necessary. Blair contacted the state attorney general's office for advice. Attorney General Mark Meierhenry and Assistant Attorney General Douglas Kludt reviewed the South Dakota statutes and Kludt subsequently met with Blair and advised him that no warrant was necessary to inspect the Freemans' property. Blair then called the Freemans and arranged an appointment for the following morning although the Freemans indicated that they still would require a search warrant.

On the morning of July 30, 1982, Blair, Baker, and Kludt arrived at the campground and requested permission to conduct an inspection. When the Freemans refused to allow the inspection unless the officials had a warrant, Blair served an order on the Freemans summarily suspending their campground license. 1 On the advice of their attorney that the license suspension was improper, the Freemans continued to operate the campground. Amended license suspension orders were served on the Freemans over the course of the next several days, setting a hearing date of August 9. On August 6, Glenn Freeman called Kludt to complain about the short amount of time before the scheduled hearing. During the conversation, Kludt made some reference to possible criminal prosecution for the Freemans' failure to submit to an inspection and for continuing to operate despite the license suspension. Kludt evidently was willing to reschedule the hearing if the Freemans would cease operation. Because of these and other considerations, the Freemans

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consented to an inspection. See Kludt Deposition, exhibit 4 (transcript of telephone conversation).

In March 1983, the Freemans filed this suit alleging, inter alia, that their rights under the Fourth and Fourteenth Amendments had been violated by state officials. 2 The Freemans named as defendants the State of South Dakota, the South Dakota Department of Health, Governor William Janklow, Meierhenry, Blair, Kludt, and Baker. The State of South Dakota and the Department of Health voluntarily were dismissed as parties and the District Court dismissed Janklow and Meierhenry upon defendants' motion. 3 The remaining defendants moved for summary judgment, contending that no search warrant was required prior to inspection and that the summary suspension of the campground license was proper. The District Court held that summary judgment was inappropriate because "plaintiffs were well within their Fourth Amendment rights" to require a search warrant and that the due process claim arising from the summary suspension of the Freemans' license therefore survived. Freeman v. Blair, No. 83-3026, slip op. at 6-7 (D.S.D. Oct. 31, 1984).

On August 29, 1984, two days before defendants moved for summary judgment, two employees of the Department appeared at the Freemans' campground desiring to conduct another inspection. The previous scenario replayed itself with the Freemans requesting a search warrant and the new Secretary of the Department of Health, Lawrence Massa, summarily suspending the Freemans' license on the ground that the "public health, safety and welfare imperatively required immediate action." Third Amended Complaint, Exhibit G. 4

On March 22, 1985, defendants again moved for summary judgment, claiming absolute and/or qualified immunity. The District Court granted defendants' motion and dismissed the Freemans' complaint with prejudice. The court held that Blair and Massa were entitled to absolute immunity under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), because their decisions to initiate administrative proceedings were "analogous" to a prosecutor's decision to commence prosecution. Freeman v. Blair, No. 83-3026, slip op. at 7-8 (D.S.D. April 25, 1985). The court also concluded that the remaining defendants were entitled to qualified immunity. Id. at 5-6. Reviewing the precedents concerning warrantless administrative searches, the court found that "it was [not] unreasonable for defendants, in 1982 and September, 1984, to assume that they were entitled to inspect [the Freemans'] campground without a search warrant.... It follows from this that defendants are also entitled to qualified immunity" as to the license suspension claims. Id. at 5. The court observed that the Freemans were offered a hearing within several days of the suspension and indicated that this comported with the requirements of due process. Id. at 6.

II.

The Freemans urge reversal on the basis that defendants Blair and Massa are not entitled to absolute or qualified immunity nor are any of the remaining defendants entitled to qualified immunity. In reviewing a district court's entry of summary judgment, this Court employs the same

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standard that a district court utilizes to test the motion initially. Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). All evidence must be viewed in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences derived from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Summary judgment is particularly ill-suited to resolve questions in which "intent, good faith and other subjective feelings play dominant roles." In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 185 (8th Cir.1976) (citation omitted), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977). With this standard in mind, we look to the legal framework governing absolute and qualified immunity.

A.

We begin with the proposition that "qualified immunity represents the norm" for officials of the executive branch of government. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). This is so whether the suit is one against federal officials, as in Harlow, or one against state officials. Id. at 818 n. 30, 102 S.Ct. at 2738 n. 30; Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978). The Supreme Court in Butz stated that "officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope" because of some "special function[ ]" that the officials serve. 438 U.S. at 506, 508, 98 S.Ct. at 2911, 2912.

Among the "special functions" that create absolute immunity, the Court in Butz included "agency officials performing certain functions analogous to those of a prosecutor." Id. at 515, 98 S.Ct. at 2918. Justice White, writing for the majority, explained that executive branch officials need absolute immunity in this situation because "[t]he decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor's decision to initiate or move forward with a criminal prosecution" and that the discretion of the...

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