Barker v. Norman, 80-1288

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation651 F.2d 1107
Docket NumberNo. 80-1288,80-1288
PartiesWayne Ernest BARKER, Plaintiff-Appellant, v. Ben NORMAN and Jack Ballas, Defendants-Appellees. Summary Calendar. . Unit A
Decision Date30 July 1981

Wayne E. Barker, pro se.

David L. Crawford, Houston, Tex., for Norman.

Maria Angela Flores, Houston, Tex., for Ballas.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiff-Appellant Wayne Ernest Barker brings this appeal * from an adverse summary judgment in the court below in his suit for damages and injunctive relief against the two Defendant-Appellees, Officer Ben Norman of the Houston Police Department (HPD), and Agent Jack Ballas of the United States Bureau of Alcohol, Tobacco & Firearms (ATF). Barker alleges that Officer Norman and Agent Ballas conspired to violate a number of the rights secured to him by the United States Constitution; as to Officer Norman, his suit is premised on 42 U.S.C. § 1983 (1976), 1 and as to Agent Ballas, his suit is premised on a Bivens 2 constitutional tort claim. 3 The alleged violations of his rights arose from Officer Norman's search of Barker's Houston apartment, the alleged coercion of Barker's guilty plea to a federal firearms charge by the use of property seized from the apartment, and the retention of some of the seized property by Officer Norman despite Barker's demands for its return. The court below granted summary judgment in favor of both defendants, holding that there was no genuine issue of disputed fact as to whether the defendants had established a defense of qualified immunity based on their good faith. For the reasons stated in this opinion, we affirm in part, reverse in part, and remand.

A. Allegations in Barker's Complaint: One Side of the Story

Agent Ballas arrested Barker in Westmoreland, Kansas, on September 14, 1976, for allegedly violating the Gun Control Act of 1968, 18 U.S.C. § 922(h) (1976), by possessing a .38 caliber revolver. 4 Barker pleaded not guilty at his arraignment. Trial was set for November 8, 1976, and Barker was released on bond, after which he apparently returned to Texas. The story he relates in his verified petition begins at that point, and, insofar as it pertains to this lawsuit, this is the way the story goes:

Barker left his wife, Jacqueline, at her father's home in Carrollton, Texas, on November 2, 1976. Barker and Jack Taylor, 5 his father-in-law, had had a disagreement on several matters, including Barker's possession of certain tapes and notes that had to do with Barker's search for his wife during a period when he thought she was being held against her will by drug traffickers in the Killeen, Texas, area. Taylor's long-distance phone records, according to Barker, would confirm that Taylor phoned the Houston Police Department on November 3, 1976. Barker alleges that in this call, Taylor sought to induce HPD to seize these tapes and notes. Officer Norman, acting in Taylor's behalf, then contacted ATF Agent Ballas. Agent Ballas, according to Barker, "gave unauthorized sanction" to Officer Norman to search Barker's apartment in Houston, and to seize the tapes and notes along with anything else helpful to the federal firearms prosecution in Kansas.

Barker alleges that as a result of Taylor's call and Ballas' encouragement, Officer Norman forced his way into Barker's apartment on that same day over the objections of the temporary occupant, Gail Blanchard Keller; Barker was not present at the time. Officer Norman placed Keller in his custody for having "aided and abetted a fugitive." According to Barker, Officer Norman acted without a warrant or probable cause in entering the apartment; he lacked a good faith belief that a crime was in progress or was about to be committed; and he knew or should have known that his actions were unlawful and in reckless disregard of Barker's rights. Officer Norman seized and carried away a number of items of Barker's personal property, including twelve cassette tapes, two tape recorders and associated equipment, a telephone, four walkie-talkies, a pair of binoculars, legal papers relating to the Kansas firearms charge, and other legal opinions and notes. Several of the tapes related conversations between Barker and his appointed counsel in the Kansas case, John O. Martin. Other tapes pertained to matters not directly relevant to this lawsuit. The legal papers outlined Barker's defense strategy in the Kansas case.

Later that afternoon, Officer Norman allegedly broke into and searched a Volkswagen automobile that was lawfully in Barker's possession; the car belonged to Barker's "mother's son-in-law." Barker's mother, Laura Barker, protested that the search of the car was against the law, but Officer Norman allegedly replied, "I'm the law." Barker alleges that the search was without a warrant or probable cause, and that Officer Norman knew or should have known that his actions were unlawful and in violation of Barker's rights. At 5:00 p. m., Officer Norman had the car towed away, despite Barker's mother's objections.

Houston attorney John J. Knoff, with whom Barker had worked on prior occasions, contacted Norman on November 4, 1976. Officer Norman told Knoff he had just seized the automobile; during a search of the car, he had discovered 45 bags of marijuana and a sawed-off shotgun. Officer Norman left a message with Knoff to have Barker call Officer Norman.

Barker further alleges that on November 5, 1976, he called Officer Norman and asked for the return of the car, the personal property from the apartment, and ten or more photographs of his wife that had been in the car. After ascertaining that no charges had been filed against him in Houston as a result of the search and seizure, Barker asked as to the whereabouts of the marijuana and the shotgun. Officer Norman told Barker that Agent Ballas had taken the marijuana and shotgun to Kansas, along with several of the tapes and the legal papers. Officer Norman also told Barker that several other tapes were no longer in Officer Norman's possession, and that he would return the car and the other property after Barker returned from the November 8, 1976, trial in Kansas. Barker asked about the ultimate disposition of the claim that Officer Norman had found marijuana in the car, and Officer Norman replied, "It depends on what you do in Topeka." However, Officer Norman said he would not go to Topeka to testify.

Barker telephoned his attorney in the firearms case (John O. Martin, apparently) to go over their defense strategies. Barker alleges that Martin told him in this conversation that Assistant U. S. Attorney Bruce E. Miller, the prosecutor in the case, had told Martin that he (AUSA Miller) had possession of incriminating tapes, marijuana, and a shotgun all of which AUSA Miller intended to use as evidence against Barker at the trial. Martin then "intimated" that AUSA Miller also had in his possession tapes and notes relating to Barker's defense strategy; for this reason, Martin had prepared no defense and the trial court would grant no continuance. Martin told Barker that AUSA Miller was "running the court" and that Miller could do whatever he wanted, including using hearsay "if he did not actually have anything incriminating of a physical nature."

Barker alleges that on the next day, before the trial, AUSA Miller "conveyed" to him that if he pleaded guilty, he would be continued on bond for 45 days; otherwise, he would be convicted by "whatever means" and prevented from being released on appeal bond and seeing his wife again. Barker's wife had pleaded urgently with Barker by phone on two occasions, urging him to return to Taylor's home to pick her up. Barker alleges that AUSA Miller's threats, when combined with the personal pressure on Barker to retain some measure of freedom so that he could "rescue" his wife, operated to overcome his will to fight the firearm charges. He pleaded guilty and was continued on bond pending sentencing.

Barker alleges that after entering his plea he talked to Agent Ballas in the hallway. Barker's complaint sets out the substance of this conversation by quoting an affidavit that he says Keller gave in the Kansas proceeding wherein Barker tried to withdraw his guilty plea. Keller was a witness to the conversation, according to Barker. Although Barker quotes this affidavit, the affidavit itself does not appear in the record. According to the quoted portion, Agent Ballas said that he had flown an agent to Houston, and the agent had brought back the tapes, marijuana, and shotgun. Agent Ballas said that he had listened to most of the tapes, and he told Barker that the government had planned to introduce all of this as evidence if Barker had gone to trial. Barker replied that he had been told by his attorney that the evidence would have been used only to take him off bond, but Agent Ballas said that, to the contrary, they would have used the seized property at trial.

Barker picked up his wife on November 10, 1976, and they confronted Officer Norman at Norman's office on November 14. Officer Norman told Barker "it was all over" as far as Norman was concerned, and told Barker that Norman had been "put in a cross by the federal people." Barker picked up the Volkswagen automobile, but Officer Norman refused to return the personal property. 6

On December 14, "after further information leading (Barker) to believe that he had been unlawfully coerced into pleading guilty to the federal firearms violation," Barker filed a motion with the federal district court in Kansas to withdraw his guilty plea. On December 21-22, 1976, Barker argued his plea withdrawal motion; he had dismissed his court-appointed counsel, Martin. At the hearing, according to Barker, AUSA Miller admitted that the threat he had used had no valid basis, that the information...

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