Bruning v. Pixler

• Decision Date: 15 November 1991
• Docket Number: No. 90-1296,90-1296
• Citation: 949 F.2d 352
• Parties: James BRUNING, Plaintiff-Appellee, v. Reid C. PIXLER, Individually and in His Official Capacity as District Attorney for the Seventh Judicial District; Joseph S. Pacyga, Individually and in His Official Capacity as Deputy District Attorney for the Seventh Judicial District; District Attorney's Office for the State of Colorado's Seventh Judicial District, Floyd Johnson, Individually and in His Official Capacity as Chief of the Gunnison Police Department, City of Gunnison Police Department, James Robert Keehne, Russell Locke, Robert G. Ryan, Defendants, and Keith Robinson, J. Stewart Ferguson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 352

949 F.2d 352

James BRUNING, Plaintiff-Appellee, v. Reid C. PIXLER, Individually and in His Official Capacity as District Attorney for the Seventh Judicial District; Joseph S. Pacyga, Individually and in His Official Capacity as Deputy District Attorney for the Seventh Judicial District District Attorney's Office for the State of Colorado's Seventh Judicial District, Floyd Johnson, Individually and in His Official Capacity as Chief of the Gunnison Police Department, City of Gunnison Police Department, James Robert Keehne, Russell Locke, Robert G. Ryan, Defendants and Keith Robinson, J. Stewart Ferguson, Defendants-Appellants.

No. 90-1296.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1991.

Daniel M. Reilly and Larry Pozner, Denver, Colo., for plaintiff-appellee.

Don D. Jacobson, Lohf, Shaiman & Ross, P.C., Denver, Colo., for defendants-appellants.

Before McKAY, Chief Judge, EBEL, Circuit Judge, and SAFFELS, ^* District Judge.

EBEL, Circuit Judge.

Defendants Keith Robinson and J. Stewart Ferguson appeal the district court's order denying their Motion for Summary Judgment based on qualified immunity. ¹ Both Defendants are members of the Gunnison, Colorado Police Department (GPD), who contend that they are immune from liability for their alleged wrongful acts in obtaining an order for nontestimonial identification and an arrest warrant for Plaintiff. "We review the denial of immunity de novo as a final decision under 28 U.S.C. § 1291." Snell v. Tunnell, 920 F.2d 673, 675 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Upon review, we conclude the district court properly denied Defendants' Motion for Summary Judgment.

I.

In the early hours of June 17, 1986, "Victim # 1," who had just finished work at a grocery store in Gunnison, was sexually assaulted by a man who had hidden himself in the back of her car. Victim # 1 reported the assault to Officer Keehne of the GPD, who failed to make any written or oral record of his conversation with Victim # 1.

On June 25, 1986, Victim # 1 saw Plaintiff, with whom she was acquainted, in the grocery store and was struck by his resemblance to her assailant. Victim # 1 became upset, left work, and went to the GPD. She spoke with Officer Locke and Detective Robinson, but neither officer made any written or oral record of the conversation with Victim # 1.

On September 5, 1986, Victim # 2 was sexually assaulted in her home in Gunnison. She reported the assault to Officer Ryan of the GPD. Victim # 2 was blindfolded throughout the assault and never saw her assailant.

On October 7, 1986, Durango Police Detective O'Connell, who was assisting with the investigation, interviewed Victim # 1. Detective O'Connell tape recorded the interview, and the recording was subsequently transcribed. During this interview Victim # 1 described the assault and what she was able to see of the assailant as follows.

Victim # 1 got into her car, which was parked at the grocery store, and turned on the dome light to get her cigarettes out of her purse. She sensed something in the back of her car and turned to see a man she did not know crouched in the back seat. Because he was able to crouch down so far, Victim # 1 thought the man could not be very big: "Like five eight I think is pushin it." R. Vol. I, Doc. 6, Ex. C at 5. The man had a white handkerchief over his nose and mouth, so Victim # 1 could not see his face below the bridge of his nose. She distinctly remembered that his eyes were icy blue, and described him as having a receding hairline, blondish hair, and a reddish complexion. When she looked at him, the man yelled at her to turn off the light, which she did. Victim # 1 did not have an opportunity to see the man thereafter. He stayed behind her in the car while she drove to a deserted parking lot, at his direction, and while she got out of the car. Victim # 1 was blindfolded during the assault and, at the assailant's direction, kept her head averted while he fled the scene.

During the interview with Detective O'Connell, Victim # 1 said that she had been having nightmares about the assault and in them she knew the assailant. When asked who the assailant was in her dreams, she replied that it was different people. She also said she dreamed the assailant was her store manager one time, and that he was a customer in the grocery store in another dream, but she knew it was not really either of these people.

Victim # 1 did not identify Plaintiff as the assailant, though in response to Detective O'Connell's statement: "It could well be that you will eventually recognize this guy," following the discussion of Victim # 1's dreams, Victim # 1 said:

[Victim # 1]: Well there is one person that gave, I've gave the name to the Police and stuff. It just freaked me out one day when he came in cause I know him, his girlfriend is one of the people I told I was working that night, you know, and.

Det. O'Connell: Does he have receding blond hair?

[Victim # 1]: Yep.

Det. O'Connell: And the icy blue eyes?

[Victim # 1]: Yep. And the build. And everything. And.

Det. O'Connell: You could be right.

[Victim # 1]: But it, I mean it bothers me but I can't even talk to this person anymore. You know.

Det. O'Connell: Yeah. Well that's, even if it isn't him I'm sure he's gonna understand. He's too close to ...

[Victim # 1]: Yeah.

Det. O'Connell: To the real thing, even if it isn't him.

Id. at 27. In response to Detective O'Connell's statement near the end of the interview: "You're still don't know who he is." Victim # 1 responded "No." Id. at 30.

On October 24, 1986, Detective Robinson and Denver Police Detective Wallis interviewed Victim # 1. They too failed to record the interview in writing or on tape. After the interview, Detective Robinson drafted an affidavit in support of an order for nontestimonial identification from Plaintiff in connection with the two assaults. Based on the affidavit, the court entered the order, which was carried out on October 27, 1986. Pursuant to the order, Plaintiff was required to give police samples of his fingerprints, blood, hair and saliva, to make a voice recording, and to be photographed.

On October 28, 1986, although all the samples from Plaintiff had not yet been analyzed, Officer Ferguson ² drafted an affidavit in support of a warrant for Plaintiff's arrest for the two sexual assaults. ³ Plaintiff was arrested that day.

After the preliminary hearing, held on December 11, 1986, and January 22, 1987, the judge dismissed the charges for lack of probable cause. Plaintiff then brought this suit against Defendants and others for violation of his civil rights in connection with his arrest and prosecution.

II.

Plaintiff admitted that on their faces, Defendants' affidavits established probable cause. He contended, however, that the affidavits contained material false statements or omissions that Defendants made intentionally or with reckless disregard for the truth.

Specifically, Plaintiff alleged that Detective Robinson falsely and recklessly represented in his affidavit that Victim # 1 had (1) positively identified Plaintiff as her assailant; (2) observed Plaintiff some days after the assault wearing grey sweatpants; (3) observed the color of Plaintiff's eyes; and (4) stated that Plaintiff's eyes were the same color as her assailant's. R. Vol. I, Doc. 1 at 3-4.

Plaintiff also alleged that Detective Robinson intentionally and maliciously failed to include in his affidavit the following information: (1) in the brief moment Victim # 1 saw the assailant, he wore a mask over his face; (2) Victim # 1 only saw the assailant's face above the bridge of his nose; (3) Victim # 1 gave an extensive recorded statement to Detective O'Connell on October 7, 1986, for the purposes of identifying the assailant; (4) even though she knew Plaintiff before the assault, Victim # 1 did not identify Plaintiff as her assailant during this interview; (5) in the interview Victim # 1 said she did not know who assaulted her; (6) Victim # 1 told Detective O'Connell that the man who assaulted her was not more than 5' 8"; (7) Plaintiff is 5' 11"; (8) Victim # 1 described her assailant as being of slim to medium build; (9) Plaintiff weighs 190 pounds; (10) Victim # 1 told Detective O'Connell her assailant had icy blue eyes; (11) Plaintiff has hazel eyes; (12) Victim # 1 told Detective O'Connell she thought the man who assaulted her might be a person who worked at the Standard Gas Station in Gunnison; and (13) Victim # 2 was blindfolded throughout her assault and could not identify her assailant. Id. at 4-5.

Plaintiff alleged that Officer Ferguson's affidavit contained the same false statements and omissions. Plaintiff claimed that by their misrepresentations, Defendants violated his rights under the Fourth and Fifth Amendments.

Defendants moved for summary judgment claiming qualified immunity under Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Court held in Malley that an officer is immune from liability for his actions in seeking a warrant unless "a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Id. at 345, 106 S.Ct. at 1098.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court adopted an objective standard for qualified immunity. Under the Harlow standard, government officials will not be liable for their conduct when performing discretionary functions unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. "Because of the important values protected by qualified immunity, the procedures to be followed when this particular affirmative defense is raised differ from those applicable to most other affirmative defenses." Powell v....