Beard v. City of Northglenn, Colo., 93-1068

• Decision Date: 11 May 1994
• Docket Number: No. 93-1068,93-1068
• Citation: 24 F.3d 110
• Parties: Herschel BEARD, III and Carol Goslin, Plaintiffs-Appellants, v. The CITY OF NORTHGLENN, COLORADO, a municipal corporation; the City of Westminster, Colorado, a municipal corporation; Greg S. Neal, individually; and Stephen Hipp, individually; Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 110

24 F.3d 110

Herschel BEARD, III and Carol Goslin, Plaintiffs-Appellants, v. The CITY OF NORTHGLENN, COLORADO, a municipal corporation;

the City of Westminster, Colorado, a municipal corporation;

Greg S. Neal, individually; and Stephen Hipp, individually;

Defendants-Appellees.

No. 93-1068.

United States Court of Appeals, Tenth Circuit.

May 11, 1994.

Michael F. Berger (Guy B. Humphries with him on the brief), of Waldbaum, Corn, Koff and Berger, P.C., Denver, CO, for appellants.

Christina M. Habas of Watson, Nathan & Bremer, P.C., Denver, CO, for appellees Westminster and Neal.

Theodore S. Halaby (Robert M. Liechty and Joseph M. Timmins, with him on the brief), of Halaby, McCrea & Cross, Denver, CO, for appellees Northglenn and Hipp.

Before WHITE, Associate Justice (Ret.); ^* LOGAN, and EBEL, Circuit Judges.

WHITE, Associate Justice (Retired).

Appellant Herschel Beard, III, was the innocent victim of an extraordinary case of mistaken identity. Misled by a complex fraud into thinking Beard responsible for at least a pair of crimes within their jurisdictions, Detectives Greg Neal and Stephen Hipp, appellees here, sought, received, and executed a warrant for his arrest. Once the detectives discovered their mistake and appellant's innocence, all criminal charges against Beard were dismissed. This civil suit followed, with appellant seeking damages from appellees under 42 U.S.C. Sec. 1983 for what he contended was a violation of his Fourth Amendment right to be free from an unlawful seizure; appellant also filed a state tort action asserting malicious prosecution. The District Court entered summary judgment in favor of appellees on both claims. We now affirm that decision.

I

Seeking employment as a pilot or flight officer, appellant happened across, and decided to respond to, a "help wanted" advertisement in a trade journal. The soliciting company, ISB Systems, seemed quite interested in his inquiry, promised him an interview, and instructed him to forward his aviation credentials as part of the application process. Appellant sent in his credentials as instructed, but when he received no response from the company and was unable to retrieve his credentials despite attempts to do so, he became concerned that someone had solicited the documents from him for illegal use. He notified the Federal Bureau of Investigation and the Federal Aviation Administration; that was the last appellant knew or heard of his flight credentials until he was arrested nearly a year later.

Unknown to appellant, someone had indeed employed his credentials--along with the credentials of Jeffrey Beck, another pilot who responded to the ISB advertisement--in an intricate check kiting scheme. Using Beard and Beck's names to set up a variety of bank accounts in Colorado, the individual, whose identity is still unknown, proceeded to issue checks between the accounts, creating artificially high balances in some of them. ¹ Then, posing as Jeffrey Beck, he used these balances to write checks on an account bearing Beck's name in order to purchase office equipment from M & L Business Machines, Inc. ("M & L") and a new car from O'Meara Ford Center, Inc. ("O'Meara"). Both checks, of course, were ultimately returned for insufficient funds.

Police investigations of the M & L and O'Meara crimes began independently since the two entities are located in separate Colorado cities. After being informed by the M & L company manager about the bad Beck check it had received, Detective Neal of the Westminster police department contacted the bank on which the check was drawn, the First National Bank of Westminster. An employee there informed Neal that a large check purporting to be drawn on an account bearing Beard's name had been deposited in the Beck account but was itself later returned for insufficient funds.

At this juncture Neal began suspecting that Beard had purchased the M & L equipment and manipulated the bank account balances; it did appear, after all, that a check drawn on a "Beard" account was responsible for the misleadingly high balance in the Beck account used in the M & L fraud. After apparently discovering that appellant had resided in Alaska for a time, Neal contacted authorities there and was able to obtain a copy of appellant's actual driver's license; all parties agree that the photograph and signature on the license are indeed Beard's. Neal then prepared a photographic lineup, one that included appellant's driver's license and was not, the parties again agree, in any way unduly suggestive. Neal showed the lineup to Ernest Ledvina, an M & L employee, who tentatively identified appellant as the man who purchased the office equipment from him--this despite the fact that Beard, of course, had nothing to do with the crime.

While Neal was pressing his M & L investigation in Westminster, Officer Hipp was focusing on a crime at the Northglenn O'Meara dealership. Someone identifying himself as Jeffrey Beck visited the car dealership, completed a retail installment contract, presented a $1,000 counter check, and was permitted to drive off in a new car. When the $1,000 counter check was returned for insufficient funds, the O'Meara salesman, Robert Law, contacted Detective Hipp of the Northglenn police. Hipp managed to locate the true Jeffrey Beck in Indianapolis and discovered that he had nothing to do with the O'Meara crime.

Hipp next contacted the First National Bank of Westminster on which the counter check presented to O'Meara--like the check presented to M & L--had been drawn. Employees there informed him that Neal was in the process of investigating a check kiting scheme involving the same Beck bank account he was interested in. Upon realizing that the crimes they were investigating appeared to be related, Hipp and Neal began coordinating their investigations. Indeed, Hipp presented Neal's photographic lineup to Robert Law, the O'Meara car salesman; Law positively identified appellant as the individual who had purchased the car from him--though, again, as we now know, appellant had nothing to do with the O'Meara crime. Neal also submitted a number of documents from both the M & L and the crimes, along with a copy of appellant's driver's license signed by appellant, to a handwriting expert for analysis. The expert told Neal that all of the papers had been signed by the same person.

In the end, Neal and Hipp became convinced that Beard had indeed posed as Beck and was responsible for the check kiting operation and the M & L and O'Meara frauds. The officers never made an attempt to contact Beard for themselves, but, instead, proceeded directly to prepare an affidavit and application for an arrest warrant. A county district court judge considered the officers' filings and issued the warrant; appellant was soon thereafter arrested. Five months later, after discovering appellant's utter innocence--after learning that his credentials, like Jeffrey Beck's, had been fraudulently employed by some as-yet unknown perpetrator--all charges against him were dropped.

State criminal proceedings over, appellant filed this civil action against Neal and Hipp in federal district court. He argued that the officers had violated his Fourth Amendment right to be free from an unreasonable seizure and, thus, rendered themselves liable in damages under 42 U.S.C. Sec. 1983. Appellant also pressed a state tort claim for malicious prosecution. Neal and Hipp moved for summary judgment, contending that qualified immunity protected them from liability under the Fourth Amendment and that a state statute afforded them similar immunity protection against the state tort claim. The District Court granted summary judgment on both claims and this appeal followed. ²

II

A

When applicable, qualified immunity shields our public agents not only from liability at trial, but also from the very burdens associated with trial. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). This prophylactic protection is afforded our governmental officials on the grounds "that they can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated." Davis v. Scherer, 468 U.S. 183 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). In this vein, the question whether qualified immunity protects a particular defendant is most often and most properly passed upon, as here, well in advance of trial, with any denial of qualified immunity amenable to interlocutory appellate review. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1986).

The Court in Harlow explained that whether or not qualified immunity properly applies in a given case is a two-fold inquiry. A public officer will only be held liable for his conduct if it can be shown that he trenched upon a plaintiff's clearly established constitutional or statutory right and if a reasonable person in the defendant officer's position would have known his conduct violated that right. 457 U.S. at 818, 102 S.Ct. at 2738. See also Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

In applying this two-part test, the trial court observed that the law was clear that an arrest under a warrant is constitutional only if based on probable cause; it then went on to hold that this norm had been violated because Beard's arrest was "based upon the appearance of probable cause, although none actually existed against him. Therefore the first prong of the qualified immunity test has been satisfied." Appellant's Appendix at 211. The trial court, however, still granted summary judgment in favor of defendants because Beard had, on the second part of the immunity test, failed to demonstrate that there was a genuine issue of material fact as to whether a reasonable person in the defendant officers' shoes would have known that the...