80 F.3d 1101 (6th Cir. 1996), 95-5586, Greene v. Reeves

Docket Nº:William B. REEVES, a/k/a Brad Reeves (95-5586); Robert G.
Citation:80 F.3d 1101
Party Name:David GREENE and Starna Hill, Plaintiffs-Appellees, v.
Case Date:April 08, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1101

80 F.3d 1101 (6th Cir. 1996)

David GREENE and Starna Hill, Plaintiffs-Appellees,


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

April 8, 1996

Argued Feb. 6, 1996.

Page 1102

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

Page 1103

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.


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...

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