Cross v. City Of Wichita Falls

• Decision Date: 09 August 2010
• Docket Number: No. 09-10313.,09-10313.
• Citation: 614 F.3d 161
• Parties: Delores A. ZARNOW, Independent Administratrix for the Estate of Dr. Allen J. Zarnow, Deceased, Plaintiff-Appellant Cross-Appellee, v. CITY OF WICHITA FALLS, TEXAS; Ken Coughlin, Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

614 F.3d 161

Delores A. ZARNOW, Independent Administratrix for the Estate of Dr. Allen J. Zarnow, Deceased, Plaintiff-Appellant Cross-Appellee,

v.CITY OF WICHITA FALLS, TEXAS; Ken Coughlin, Defendants-Appellees Cross-Appellants.

No. 09-10313.

United States Court of Appeals,Fifth Circuit.

Aug. 9, 2010.

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Rickey Gene Bunch (argued), Law Office of Rickey G. Bunch, Wichita Falls, TX, for Zarnow.

D. D'Lyn Davison (argued), Davison Rugeley, L.L.P., Julia Maria Vasquez, Wichita Falls, TX,

Appeals from the United States District Court for the Northern District of Texas.

Before BENAVIDES, STEWART and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

This is a suit under Section 1983. The claim is that a city and its police chief violated a person's Fourth Amendment rights. The district court granted summary judgment in favor of the defendants. We AFFIRM.

I. STATEMENT OF FACTS

Dr. Allen Zarnow was a physician at the Clinics of North Texas (“the Clinic”) in Wichita Falls, Texas. In July 1999, while Zarnow was on vacation, Clinic employees discovered a gun, an ammunition magazine, several boxes of shells, blasting caps, ammunition, and fuses in his office. None of the items were active explosive devices. The Clinic's manager contacted the police.

Employees at the Clinic reportedly told the first officer on the scene that Zarnow was a “gun expert and salesman.” Based on his military experience, the police officer concluded that the found items were “dangerous.” Firefighters, however, thought the materials did not constitute an imminent hazard. The responding officer contacted the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and also telephoned his superiors. Police Chief Ken Coughlin arrived at the Clinic sometime after the initial discovery. Although keeping apprised of the situation, he apparently did not assume command of the scene.

Shortly thereafter, police applied for a warrant to search Zarnow's home. The affidavit on which the warrant application was based stated that the offense believed to have been committed was “possession of illegal explosives and other explosive devices” in violation of Texas Penal Code Sections 46.05 and 46.09. Among the allegations asserted in the affidavit were that “explosives” and “explosive devices” had been identified at Zarnow's office by “an expert on bombs and explosives.” A local magistrate signed the warrant, which permitted officers to search for explosive devices and prohibited weapons, along with any documents or notes pertaining to the ownership of the weapons or the house.

While waiting for the magistrate to sign the warrant, police surrounded Zarnow's home for surveillance. Upon discovering that Zarnow and his family had returned from vacation, police ordered Zarnow to exit the house. Zarnow acquiesced. During a subsequent interrogation, Zarnow assured police officers that he was a properly licensed firearms dealer, and offered to produce paperwork showing his entitlement to possess all of the materials recovered at his office. Police asked to see the documents, and Zarnow informed them that the paperwork was in the house.

Zarnow was accompanied by police officers and ATF agents into the residence, where he presented papers proving that he was licensed to possess weapons and explosive materials. As Zarnow showed the documents to the ATF agent, the police officers began a consensual search of the home. When they discovered a box marked “explosives” in plain view, Zarnow withdrew his consent and asked the officers to leave. Officers informed Zarnow that his consent was no longer necessary since they had a warrant to search the home.

The next morning, Chief Coughlin assembled all of the firearms and ammunition seized at Zarnow's home and laid them out for the news media to photograph. Zarnow was jailed for possession of prohibited weapons. Over the next few days, the police executed an additional search warrant at Zarnow's home and yet another at his lake house. However, a Wichita Falls grand jury refused to indict, and no charges were ever brought against him.

During the searches of Zarnow's homes, police officers seized weapons, ammunition, currency, bonds, silver, band-aids, books, prescription medicines, and over-the-counter medications. Although a number of these items were not covered by the search warrant, police justified their seizure by citing to the “plain view” doctrine. Officers later testified that they understood “plain view” to permit the collection of any item that might be evidence of any crime. The police chief testified that it was his practice to seize more than was necessary during an initial search, so that he could later “rule things in or out.”

Zarnow filed suit in the U.S. District Court for the Northern District of Texas, naming as defendants the City of Wichita Falls, Chief Coughlin, eight named subordinate officers, and eight unnamed officers all in their individual and official capacities. Zarnow alleged violations of the Second, Fourth, Fifth, Sixth, and Fourteenth Amendments, and sought relief under 42 U.S.C. § 1983. During the litigation, Allen Zarnow died. His widow, as administratrix of his estate, was substituted as plaintiff.

Several officers were dismissed from the suit. All official capacity claims were dismissed except for those against Chief Coughlin. The remaining defendants later moved for summary judgment on qualified immunity grounds.

The summary judgment motion was granted as to Zarnow's claims under the Second, Fifth, Sixth, and Fourteenth Amendments. However, summary judgment was denied as to the Fourth Amendment claims. The City and the individual officers appealed.

On appeal, a panel of this Court determined that it was without jurisdiction to hear the City's appeal because the denial of summary judgment was not a final order. Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401 (5th Cir.2007). As to the claims against the individual officers, some of their conduct likely violated Zarnow's Fourth Amendment rights. Nevertheless, the panel held that the officers were entitled to qualified immunity and dismissed the claims against them. Only Zarnow's claims against the City and Chief Coughlin in his official capacity remained. The case was remanded to the district court for further proceedings.

On remand, Zarnow alleged that the City was responsible for the officers' misuse of the plain view doctrine during the home searches. Zarnow argued that the officers' expansive view of the doctrine was inconsistent with a Supreme Court decision that “plain view” seizures had to be supported by probable cause. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). Zarnow contended that the officers' improper use of the “plain view” doctrine constituted a “policy or custom” of the City that was implemented by its policymaker, Chief Coughlin.

Both parties again moved for summary judgment, which was granted in favor of the City. The court found that Chief Coughlin was a “potential policymaker,” but that the officers' use of the plain view doctrine was not a “custom or policy” of the City. Consequently, the court did not reach whether a policy was the “moving force” behind the alleged constitutional violation.

Zarnow timely appealed the district court's grant of summary judgment in favor of the City. The City cross-appealed to challenge the court's finding that Chief Coughlin was a “potential policymaker.”

II. DISCUSSION

We review a district court's grant of summary judgment de novo. Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 740 (5th Cir.2008). A district court should grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). In making this determination, the evidence must be viewed in the light most favorable to the nonmoving party. Mahaffey, 543 F.3d at 740.

A. Municipal Liability

A municipality is a “person” subject to suit under Section 1983. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A local government entity may be sued “if it is alleged to have caused a constitutional tort through ‘a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.’ ” City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018). Alternatively, municipal liability may attach where the constitutional deprivation is pursuant to a governmental custom, even if such custom has not received formal approval. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. “[M]unicipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (citation omitted).

[7] The elements of the Monell test exist to prevent a collapse of the municipal liability inquiry into a respondeat superior analysis. See Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 415, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A municipality may not be subject to liability merely for employing a tortfeasor. See, e.g., City of Canton, Ohio v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Municipal liability requires deliberate action attributable to the municipality that is the direct cause of the alleged constitutional violation. Id. at 391-92, 109 S.Ct. 1197.

1. Municipal Liability-Policymaker

The first requirement for imposing municipal liability is proof that an official policymaker with actual or constructive knowledge of the constitutional violation acted on behalf of the municipality. Cox v. City of Dallas, Tex., 430 F.3d 734, 748-49 (5th Cir.2005). A policymaker is “one who takes the...