Salmon v. Schwarz

• Decision Date: 31 October 1991
• Docket Number: No. 88-1850,88-1850
• Citation: 948 F.2d 1131
• Parties: Margarito SALMON, Magdalena Salmon, Individually and as next friend for Margarito Salmon, Jr., Plaintiffs-Appellees, v. Martin R. SCHWARZ and Arturo A. Gonzalez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1131

948 F.2d 1131

Margarito SALMON, Magdalena Salmon, Individually and as next

friend for Margarito Salmon, Jr., Plaintiffs-Appellees, v. Martin R. SCHWARZ and Arturo A. Gonzalez, Defendants-Appellants.

No. 88-1850.

United States Court of Appeals, Tenth Circuit.

Oct. 31, 1991.

Freddi Lipstein, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., William L. Lutz, U.S. Atty., and, John F. Cordes, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., with him, on the brief), for defendants-appellants.

Kevin J. Hanratty, Artesia, N.M., for plaintiffs-appellees.

Before HOLLOWAY and LOGAN, Circuit Judges, and BROWN, ^* District Judge.

ORDER

On consideration of the Motion to Clarify the Court's Opinion Issued on August 27, 1991, of the Defendants-Appellants, and the response thereto of the Plaintiffs-Appellees, the court finds that its August 27, 1991, opinion should be modified. The motion to clarify advised the court of an error in the statutes relied on and suggested the necessity of a material clarification, which the court appreciates. The response agrees with the clarification suggested.

Accordingly, the court withdraws its opinion filed August 27, 1991 and vacates the judgment entered pursuant thereto. An amended opinion is filed this date and judgment is entered pursuant thereto.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and BROWN ^*, District Judge.

AMENDED OPINION

HOLLOWAY, Chief Judge.

This is an appeal by the defendant-appellants, Arturo A. Gonzalez and Martin Schwarz, from the district court's denial of their motions for summary judgment. Both Gonzalez and Schwarz are Special Agents of the Federal Bureau of Investigation (FBI) who claim that they are immune from suit for allegedly wrongful acts in obtaining and executing an arrest warrant for Margarito Salmon (Salmon), and resulting claims for damages by Salmon, his wife and son.

I

In early 1984 the FBI in Albuquerque, New Mexico, was contacted by the Detroit Division of the FBI regarding an investigation into narcotics laws violations by subjects in Detroit traveling to Artesia, New Mexico, for the purpose of buying heroin. I R., Doc. 91 at 2 (Gonzalez, summary judgment affidavit). As a result, the Bureau's Albuquerque field office conducted physical surveillance of several suspected narcotics traffickers in Artesia, New Mexico. In July 1984 the surveillance intensified as the FBI obtained judicial authorization to intercept the suspects' wire communications and to install a pen register on one suspect's telephone. According to the defendants the surveillance was complicated because the suspects spoke Spanish which necessitated the transfer of Spanish-speaking agents to Artesia from other areas. These agents found it difficult to identify the participants in the monitored conversations because they lacked prior knowledge of the suspects.

The police logs of intercepted telephone calls show that one suspect, Carrera, often phoned someone called "Margarito." Gonzalez intercepted one such call to "Margarito" involving illegal drugs on August 5, 1984. The police logs for that day merely identify the person called as "Margarito LNU" (last name unknown). Three days later Carrera received a call allegedly involving drugs from "Pepe" who resided in Juarez, Mexico. Immediately following this discussion, Carrera phoned the Plainsman Phillips 66 gas station (Plainsman 66) and asked to speak to Margarito. After Carrera was informed that Margarito was not at the station, Carrera immediately dialed another number and asked for Margarito. Although Carrera never mentioned Margarito's last name in any of the intercepted calls or gave any further identification evidence, this last telephone number called proved to be Margarito Salmon's. I R., Doc. 134; Memorandum Opinion and Order at 3. Salmon never received Carrera's call because he was not at home. Id. at 4.

Gonzalez claims that the sequence and nature of these calls caused him to conclude that Salmon was the unidentified "Margarito" involved in illegal drug transactions. Id. at 3. Gonzalez' conclusion was reinforced by a physical surveillance report on September 12, 1984, which showed that someone fitting Salmon's description was observed driving a Ford pickup truck registered to Salmon that had been parked at Carrera's residence. ¹ Id. at 3-4.

Subsequent entries on the wire interception logs indicate that Carrera also telephoned another Margarito, Margarito Alvarado (Alvarado), calling Alvarado's home 38 times and his workplace, the Plainsman 66, over 14 times. Id. at 4. Gonzalez also acknowledges that he knew that Alvarado worked at the Plainsman 66 as of August 5, 1984. I R., Doc. 91, Ex. A (Gonzalez' Affidavit of 10/2/87 in support of his motion for summary judgment, at 5).

On the basis of Gonzalez' affidavit of November 9, 1984, for an arrest warrant, a federal magistrate issued an arrest warrant for several of the suspects, including Salmon, on that same day. Salmon's arrest warrant charged him with conspiring and attempting "to distribute, dispense or possess a controlled substance and ... travel[ing] in interstate commerce and us[ing] interstate communication facilities to facilitate" such enterprise in violation of 21 U.S.C.A. §§ 843(b) and 846. I R., Doc. 13, Ex. A at 9, 75 (arrest warrant and Gonzalez' supporting affidavit); Appellants' Br. at 7.

On November 13, 1984, Salmon and his family were awakened in the early morning by Schwarz and others, not including Gonzalez, who accused Salmon of being involved in illegal drugs and then arrested and handcuffed him in front of his wife, Magdalena Salmon, and their son, Margarito Salmon, Jr., the other plaintiff-appellees in the instant case. Schwarz searched Salmon's residence as well as his place of business, a barber shop and boutique known as Margarito's Styling Shop. Appellees' Br. at 6. Salmon admits having consented to the search of his residence; however, he denies consenting to the search of his shop. Id. at 6; Appellants' Br. at 8. Gonzalez did not join Schwarz and the other agents in executing the arrest warrant and the related search.

Subsequently the charges against Salmon were dropped. However, two other persons arrested in the investigation pleaded guilty, two fled and two were acquitted. Along with his wife and son, Salmon filed suit seeking compensatory and punitive damages from the defendants Gonzalez and Schwarz. Salmon contends that they violated his Fourth Amendment rights to protection against unreasonable search and seizure and that warrants issue only upon probable cause (Count I). ² Salmon further claims he was injured by the defendants' tortious conduct of false imprisonment (Count II), trespass (Count III), battery (Count IV) and that his civil rights were violated (Count V). In addition, Magdalena and Margarito, Jr. each claim damages for the negligent infliction of emotional distress. (Counts VI and Count VII, respectively).

Gonzalez and Schwarz moved to dismiss, arguing that Salmon's constitutional claims lacked sufficient specificity; that they were entitled to absolute official immunity from the Salmons' state law tort claims; and that as federal agents, their actions did not satisfy the state action requirement for applying 42 U.S.C.A. § 1983. I R., Doc. 13 at 1-8 (Defendants' Memorandum in Support of Motion to Dismiss). After considering affidavits from both sides in support of their positions, the district court ruled that it would treat the defendants' motion to dismiss as a motion for summary judgment, pursuant to Fed.R.Civ.P. 12(b), as to the issues of immunity and probable cause. I R., Doc. 37, Memorandum Opinion at 1.

The court denied the defendants' motion for summary judgment. It found that Salmon's Fourth Amendment claims were sufficiently specific to raise a genuine issue of material fact about whether the affidavit in support of the arrest warrant established probable cause to arrest Salmon. Moreover, in light of such a claim of a constitutional violation, the court ruled that the defendants were entitled to assert "only qualified immunity, not absolute immunity". Id. at 3-4. The court declined to rule whether the affidavit and other supporting evidence constituted probable cause for the arrest and searches, reserving such questions for additional discovery and trial. Id. at 5, 9.

The district judge also rejected the defendants' claims that their actions were discretionary and that they were entitled to absolute immunity from Salmon's common law tort claims. Instead, the court found that the defendants' duty to obtain warrants is not discretionary because police officers' actions in seeking an arrest warrant and in making an arrest are measured by a well-known standard--probable cause. Id. at 7-8. Furthermore, even if their actions were discretionary, the court ruled that granting them absolute immunity from tort liability would undermine the policy of deterring police misconduct. Id. at 8.

The district court dismissed Count V of Salmon's complaint, which alleged that the defendants violated his civil rights, giving rise to a claim under 42 U.S.C. § 1983. The court found that the defendants, as federal officials, were not acting under of color of state law for the purpose of invoking § 1983. Id. at 5. That ruling has not been appealed.

Following some discovery, the defendants moved for summary judgment a second time. Each agent asserted the defense of qualified immunity to Salmon's constitutional claims and absolute immunity to the state law tort claims. The district court rejected this second motion, concluding that the "incomplete list of conflicting evidence clearly shows that a genuine issue of material fact exists as to the reasonableness of Defendants' actions." I R., Doc. 134 at 4. The judge also rejected the defendants' contentions, raised earlier by their first summary judgment motion, that they are...