904 F.2d 302 (5th Cir. 1990), 89-4396, Cooper v. City of Greenwood, Miss.

Docket Nº:89-4396, 89-4642.
Citation:904 F.2d 302
Party Name:Earl Roy COOPER, Plaintiff-Appellant, v. CITY OF GREENWOOD, MISSISSIPPI and Leflore County, Mississippi, Defendants-Appellees. Earl Roy COOPER, Plaintiff-Appellant, v. CITY OF GREENWOOD, MISSISSIPPI, Defendant-Appellee.
Case Date:June 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 302

904 F.2d 302 (5th Cir. 1990)

Earl Roy COOPER, Plaintiff-Appellant,



Mississippi, Defendants-Appellees.

Earl Roy COOPER, Plaintiff-Appellant,



Nos. 89-4396, 89-4642.

United States Court of Appeals, Fifth Circuit

June 29, 1990

Rehearing and Rehearing En Banc

Denied Aug. 13, 1990.

Page 303

Estes & Waide, Jim Waide, Tupelo, Miss., for plaintiff-appellant.

Robert Lawson Holladay, Drew, Miss., for City of Greenwood.

Frederick B. Clark, Greenwood, Miss., for Leflore County.

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

Page 304

Before WISDOM, POLITZ, and JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

Earl Roy Cooper appeals an adverse summary judgment rejecting his 42 U.S.C. Sec. 1983 suit against the City of Greenwood, Mississippi and Leflore County, Mississippi for the seizure and sale of a number of firearms Cooper assertedly owned but which, as a convicted felon, he could not legally possess. Cooper's attorney appeals the imposition of Fed.R.Civ.P. 11 sanctions. For the reasons assigned we reverse the summary judgment and vacate the imposition of sanctions.


The Greenwood city police, assisted by Leflore County deputy sheriffs, executed a search warrant of an animal hospital and clinic owned by Cooper's son-in-law, seizing from the attic thereof 201 firearms. Cooper, a convicted felon, was indicted for receipt and possession of the firearms in violation of 18 U.S.C. Sec. 1202(a), now Sec. 922(g). Cooper was convicted on a guilty plea and was sentenced to a jail term. Thereafter the City of Greenwood, which had retained custody of the firearms, sold them at public auction, 1 and split the $30,000 proceeds received with Leflore County. It is undisputed that neither the city, the county nor the federal government sought or obtained court authorization to dispose of the firearms. The city and county authorities acted on their own.

Claiming ownership of the firearms, Cooper brought this action against the city and county, alleging violations of his fourth and fourteenth amendment rights, and seeking money damages of $30,000, a sum represented to be one-half the value of the firearms. The district court granted summary judgment to both defendants, dismissing Cooper's claims with prejudice. On motion it awarded $2500 in Rule 11 sanctions against Jim Waide, Cooper's attorney, for failing to make a reasonable investigation before filing suit on Cooper's behalf. Cooper and Waide timely appealed.


  1. Summary Judgment.

    The issues presented on appeal are legal and are subject to plenary review. Netto v. Amtrak, 863 F.2d 1210 (5th Cir.1989). Cooper contends that he has a property interest in the firearms and thus was entitled to some measure of process prior to their disposition. Appellees maintain that Cooper lost whatever property interest he might have had when he was convicted of illegally possessing the firearms. Concluding that the firearms are not contraband per se, we hold that Cooper's claimed ownership interest in the firearms survived his criminal conviction and could not be extinguished without according him due process. 2

    "The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." United States v. Farrell, 606 F.2d 1341, 1343 (D.C.Cir.1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978)). Contraband is of two types: contraband per se and derivative contraband. Contraband per se consists of objects which are "intrinsically illegal in character," "the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). A typical example is cocaine, a controlled substance, the possession

    Page 305

    of which is unlawful under the Controlled Substances Act, 21 U.S.C. Secs. 801 et seq. Courts will not entertain a claim contesting the confiscation of contraband per se because one cannot have a property right in that which is not subject to legal possession. Id.; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), overruled on other grounds, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

    By contrast, derivative contraband includes items which are not inherently unlawful but which may become unlawful because of the use to which they are put--for example, an automobile used in a bank robbery. One 1958 Plymouth Sedan. Because a property interest in derivative contraband is not extinguished automatically if the item is put to unlawful use, the forfeiture of such an item is permitted only as authorized by statute, Farrell, and such forfeitures are subject to scrutiny for compliance with the safeguards of procedural due process. See, e.g., United States v. $8,850 in U.S. Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983); United States v. $23,407.69 in U.S. Currency, 715 F.2d 162 (5th Cir.1983); Vance v. United States, 676 F.2d 183 (5th Cir.1982).

    The essential inquiry posed by the instant case may be stated thusly: Is a firearm in the possession of a felon more akin to cocaine or to an automobile used in a bank robbery? We are persuaded that it is more akin to the latter. A firearm, unless of the type proscribed by the National Firearms Act, 26 U.S.C. Sec. 5801 et seq., is not inherently illegal; its possession, "without more," does not constitute a crime. In Cooper's case, the "something more" is Cooper's membership in a category of persons prohibited from...

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