Benavidez v. Gunnell, 82-1099

Citation722 F.2d 615
Decision Date08 December 1983
Docket NumberNo. 82-1099,82-1099
PartiesMarylee BENAVIDEZ, Jason Kenny Benavidez and Jose Guy Benavidez, Plaintiffs-Appellants, v. Franklin L. GUNNELL, Individually and in his official capacity as Cache County Attorney; Ray Oldham, Mel Mower, Keith Wertman and Craig Johnson, Individually and in their official capacities as Police Officers of the Logan City Police Department; H. Sanford Campbell, Heber Sharp and E. Wayne Wright, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

William D. Marsh, Ogden, Utah, for plaintiffs-appellants.

Paul C. Droz of Snow, Christensen & Martineau, Salt Lake City, Utah, for defendant-appellee Franklin L. Gunnell.

Paul Matthews of Hanson, Russon & Dunn, Salt Lake City, Utah (Mary Ellen Sloan of Lund and Associates, Salt Lake City, Utah, on brief), for defendants-appellees Ray Oldham, Mel Mower, Keith Wertman and Craig Johnson.

Dee V. Benson, Salt Lake City, Utah (Merlin R. Sybbert and Scott Daniels, Salt Lake City, Utah, with her on brief), of Snow Christensen & Martineau, Salt Lake City, Utah, for defendant-appellee Heber Sharp.

Brinton R. Burbidge, Salt Lake City, Utah (B. Lloyd Poleman and J. Douglass Mitchell, Salt Lake City, Utah, were on brief), of Kirton, McConkie & Bushnell, Salt Lake City, Utah, for defendants-appellees H. Sanford Campbell and E. Wayne Wright.

Before HOLLOWAY, BREITENSTEIN and LOGAN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is an action under Secs. 1983 and 1985 of the Civil Rights Act. The essential facts are as alleged in the complaint and as shown by the affidavits of the various parties. The district court gave judgment for each of the defendants and the plaintiffs appeal. We affirm.

Mrs. Jeanine Moss was the daughter of plaintiff Marylee Benavidez and sister of plaintiffs Jason and Jose Benavidez. Mrs. Moss was a member of the Church of Jesus Christ of Latter-Day Saints, LDS, and H. Sanford Campbell was her Bishop. She related to him her mental problems and asked for assistance for herself and her two children, aged five and seven years. She received counseling from defendants E. Wayne Wright and Heber Sharp who were both psychologists and members of LDS.

In the fall of 1979, her problems increased, ultimately requiring hospitalization. On October 12, 1979, she executed a standard form "Natural Parent Foster Care Agreement," which provided for the voluntary placement of the children through the child placement agency of LDS. Through this agency, the children, who had been staying in the Wright home through an informal agreement with Mrs. Moss, were formally placed there.

Early in the evening of October 14, 1979, the plaintiffs, Mrs. Benavidez and her two sons, appeared at the Wright home and demanded the children. Bishop Campbell was called. An argument ensued. Mrs. Benavidez left with the two children.

Shortly thereafter defendant Sharp and defendant police officers arrived at the scene. They were told that the children had been placed in the Wright home under the LDS agreement and that the Benavidez knew this. At the request of the police officers, a telephone call was put in to County Attorney Gunnell, the local prosecuting attorney, at his home. After being informed of the facts, he told officer Oldham that the officers should go to the Benavidez home, retrieve the children, and return them to the Wrights. He said that they did not need a search warrant because it was a felony kidnapping. They were to gain entrance to the Benavidez home through cooperation, if possible, and should use whatever force was necessary to handle the situation as if it were a kidnapping. They were entitled to credit the statements made to them by the Bishop and the others.

Joined by two other officers, defendants Wertman and Johnson, the officers went to the Benavidez home. The Benavidez brothers demanded a search warrant. The officers said that they had none. A scuffle ensued. The brothers were handcuffed. The house was searched without finding the children. The brothers were taken to the police station. The brothers then became cooperative and told the officers they would try to locate the children. After making telephone calls, they learned that the children were at the home of a stepsister. The officers went there, found the children, and returned them to the Wrights' home. The Benavidez brothers were then released. No charges were filed against them. They were in custody about three hours. See brief of appellants, p. 21.

On the basis of these facts shown by the amended complaint and the affidavits of the parties, the court entered a summary judgment of dismissal in favor of all the defendants. We shall discuss the problem as it affects each class of defendants.

The prosecuting attorney claims absolute immunity. He was called at his home after business hours and asked by the officers what they should do when there was a taking of children with threats of violence from the home of the person in whom they were under a custodial agreement with the mother. He told the officers that they should retrieve the children and return them to the Wright home. He further said that they did not need a search warrant since this was a felony kidnapping, that they should gain cooperation, if possible, to enter the Benavidez home, and that they should use whatever force necessary and should handle the situation as if it were a kidnapping.

The County Attorney claims absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. The Court in Imbler held that a prosecutor is absolutely immune from a Sec. 1983 damage suit for his conduct in "initiating a prosecution and in presenting the State's case," 424 U.S. at 431, 96 S.Ct. at 995, but explicitly refused to determine "whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." The prosecutor did not have absolute immunity in giving advice to the police officers.

In Pierson v. Ray, 386 U.S. 547, 555-557, 87...

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