Greene v. Reeves, s. 95-5586

• Citation: 80 F.3d 1101
• Decision Date: 08 April 1996
• Docket Number: Nos. 95-5586,95-5643 and 95-5644,s. 95-5586
• Parties: David GREENE and Starna Hill, Plaintiffs-Appellees, v. William B. REEVES, a/k/a Brad Reeves (95-5586); Robert G. Stephens (95-5644); Thomas J. Smith, III (95-5643), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1101

80 F.3d 1101

David GREENE and Starna Hill, Plaintiffs-Appellees, v. William B. REEVES, a/k/a Brad Reeves (95-5586); Robert G Stephens (95-5644); Thomas J. Smith, III (95-5643), Defendants-Appellants.

Nos. 95-5586, 95-5643 and 95-5644.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1996.

Decided April 8, 1996.

On Appeal from the United States District Court for the Eastern District of Kentucky; Henry R. Wilhoit, Jr., Judge.

Michael L. Parsons (briefed), Gracey, Ruth, Howard, Tate & Sowell, Nashville, TN, Joe F. Childers (argued), Lexington, KY, for David A. Greene and Starna Hill.

Marianna Jackson Clay, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Attorney, Lexington, KY, Barbara L. Herwig, Katherine S. Gruenheck, U.S. Dept. of Justice, Appellate Staff, Civil Division, Washington, DC, for William B. Reeves.

D. Brent Irvin (argued and briefed), Office of the Attorney General, Frankfort, KY, for Thomas J. Smith, III.

Kenneth W. Smith (argued and briefed), Roberts & Smith, Lexington, KY, for Robert G. Stephens.

Before: ENGEL, BROWN, and MILBURN, Circuit Judges.

ENGEL, Circuit Judge.

William Reeves, a federal postal inspector, Robert Stephens, a Kentucky state police detective, and Thomas Smith, a Kentucky commonwealth prosecutor (referred to collectively as "the officials") appeal the district court's denial of their motions for summary judgment based on qualified immunity in the suit brought against them by David Greene and his wife, Starna Hill. Greene and Hill sued the officials under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 and asserted pendent state claims of malicious prosecution, abuse of process, and defamation. The suit was based on the officials' actions with respect to an investigation of the couple's activities involving child pornography. The couple was indicted, but all charges eventually were dropped, and the couple decided to sue Reeves, Stephens, and Smith. The officials moved for summary judgment on the grounds of qualified immunity, and the district court denied their motions. They appeal to this Court under the collateral order doctrine. Because we find that the officials were entitled to qualified immunity, we reverse.

I.

This dispute concerns a photo ¹ taken by Hill of her and Greene's six-year-old daughter in 1991. In the photo, the girl is sitting on Greene's lap, and her dress is situated so that her unclothed genital area is clearly visible. Hill sent the photo to a friend, Freda Wyatt, as a postcard. She wrote a note on the back of the photo, addressed the card to Wyatt, and mailed it.

A postal worker saw the photo and referred it to Reeves, a prohibitive mail specialist. Reeves began an investigation of whether the card violated federal law, and he visited Wyatt, the would-be recipient. Wyatt told Reeves that the postcard was from Hill, and although she expressed shock at the photo, she told Reeves that Hill and Greene were "strange." Reeves then contacted Stephens, because it was the usual procedure for state and federal authorities to cooperate in such an investigation. Both Reeves and Stephens thought that there was probable cause to arrest Hill and Greene and to search their home. Needing a prosecutor's assistance in this regard, they contacted Smith.

The parties dispute what opinion Smith may have expressed as to the existence of probable cause, but in any event, he prepared the necessary affidavits and warrants to present to a state judge. The judge signed the search and arrest warrants. Police officers, including Stephens, along with Reeves, went to Greene and Hill's home to execute the warrants. The police found and confiscated nine photo albums and eighteen videotapes containing images of nude or partially nude children and adults. After the search, Greene and Hill were arrested and charged with violating Ky.Rev.Stat. § 531.320, promoting a sexual performance by a minor, and Ky.Rev.Stat. § 531.020, distribution of obscene matter.

Greene and Hill were taken to the police station, held in custody for about twenty minutes, and released on bond. Two weeks later, a grand jury handed down an indictment under Ky.Rev.Stat. § 531.340, distribution of matter portraying a sexual performance by a minor, based on the mailing of the one photo. This offense was a misdemeanor, so responsibility for the case shifted from Smith to a county attorney. The county attorney dismissed the charges.

Five months later, Greene and Hill filed suit under 42 U.S.C. § 1983 against Reeves, Stephens, and Smith, alleging that the officials had violated their right to due process and equal protection and their right to be free from unreasonable search and seizure. They also alleged that the officials had conspired to violate their rights in violation of 42 U.S.C. § 1985. They further alleged pendent state claims of malicious prosecution, abuse of process, and defamation. The district court dismissed the state claims with respect to Reeves. Reeves and Stephens moved for summary judgment based on qualified immunity. Smith moved for summary judgment based on absolute prosecutorial immunity or, in the alternative, qualified immunity and on the plaintiffs' failure to state a claim. The district court held that all three officials were entitled to qualified immunity with respect to the procurement of the search warrant, but it declined to grant qualified immunity to any of the officials as to the arrest warrant. It therefore granted the summary judgment motions in part but denied them in part and ordered discovery to proceed as to the § 1983 claim and the pendent state claims.

II.

A.

We have jurisdiction over this appeal under the collateral order doctrine. See Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir.1993). Qualified immunity is an issue of law, and therefore we review de novo the denial of summary judgment based on qualified immunity. Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir.1991).

B.

Under the doctrine of qualified immunity, government officials acting in their official capacities are protected from being sued in their individual capacities for damages if their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."). When a defendant moves for summary judgment based on qualified immunity, as the officials in this case did, the plaintiff must therefore

1) identify a clearly established right alleged to have been violated; and 2) establish that a reasonable officer in the defendant's position should have known that the conduct at issue was undertaken in violation of that right.

Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.1995).

In the context of arrests, the Supreme Court has made it very clear that the qualified immunity doctrine provides officers broad protection. In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the Court reviewed a case in which plaintiffs alleged that an officer had caused them to be arrested unconstitutionally by presenting to a judge a complaint and supporting affidavit that failed to establish probable cause. Noting that the qualified immunity doctrine is "specifically designed to 'avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,' " id. at 341, 106 S.Ct. at 1096 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738), the Court articulated the standard governing the case:

Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Id. The Court later framed the inquiry as follows: "Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost." Id. at 344-45, 106 S.Ct. at 1097-98.

Five years later, in Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), the Court reiterated the qualified immunity standard in a case involving an arrest, holding that the doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Id. at 229, 112 S.Ct. at 537 (quoting Malley, 475 U.S. at 341, 106 S.Ct. at 1096). Hunter established that the determination of whether qualified immunity applies to an officer's judgment as to probable cause is one for the court, not the jury, to make. The Court criticized the Ninth Circuit's misapplication of the doctrine:

The Court of Appeals' confusion is evident from its statement that "[w]hether a reasonable officer could have believed he had probable cause is a question for the trier of fact, and summary judgment ... based on lack of probable cause is proper only if there is only one reasonable conclusion a jury could reach." This statement of law is wrong for two reasons. First, it routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial. Second, the court should ask whether the [officers] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed....

Id. at 227-28, 112 S.Ct. at 536-37 (citations omitted); see also Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988) ("The question of whether qualified immunity attaches to an official's actions is a purely legal question for the trial judge to determine prior to trial.").

C.

The district court cited Malley and...