Fludd v. U.S. Secret Service, 85-5336

• Decision Date: 13 September 1985
• Docket Number: No. 85-5336,85-5336
• Citation: 771 F.2d 549,248 U.S.App.D.C. 357
• Parties: , 3 Fed.R.Serv.3d 41 Allen L. FLUDD v. UNITED STATES SECRET SERVICE, et al. Maurice Daugherty, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 549

771 F.2d 549

248 U.S.App.D.C. 357, 3 Fed.R.Serv.3d 41

Allen L. FLUDD v. UNITED STATES SECRET SERVICE, et al. Maurice Daugherty, et al., Appellants.

No. 85-5336.

United States Court of Appeals District of Columbia Circuit.

Sept. 13, 1985.

Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Rebecca L. Ross, Asst. U.S. Attys., Washington, D.C., were on the petition for writ of mandamus.

Clausen Ely, Jr., David F. Williams, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the opposition.

Before WALD and MIKVA, Circuit Judges, and McGOWAN, Senior Circuit Judge.

PER CURIAM:

This case presents the novel question of the district court's authority to hold a "factual hearing" on the issue of qualified immunity when, on the basis of the affidavits before the court, "the present record is not entirely clear and there are, indeed, some contradictions in the record." Fludd v. United States Secret Service, Civ. No. 82-2172 (D.D.C. Feb. 28, 1985) (order). By order dated April 15, 1985, a divided panel of this court granted petitioners/appellants' petition for writ of mandamus preventing the district court from holding the factual hearing. We now issue this opinion to explain more fully the reasons for the court's decision.

I. BACKGROUND

On August 3, 1982, respondent/appellee Allen A. Fludd (hereinafter Fludd or plaintiff) filed suit in the United States District Court for the District of Columbia against the United States Secret Service and six of its agents ¹ (hereinafter defendants). The gravamen of Fludd's complaint was that defendants had violated his Fourth Amendment rights in the service of a subpoena for a handwriting exemplar. Plaintiff invoked the court's jurisdiction under 28 U.S.C. Sec. 1331 (1982) and 28 U.S.C. Sec. 2201 (1982) and sought $10,000 in compensatory damages and $25,000 in punitive damages against the individual agents and declaratory relief against the Secret Service.

The facts which precipitated plaintiff's complaint can be briefly summarized. ² In late 1978, Zeno Kittrell, plaintiff's stepfather, contacted Special Agent LaFarree of the Secret Service regarding the alleged theft of a tax return check. At the time of this initial contact, Mr. Kittrell was living at the family home at 609 Nicholson St., N.W., Washington, D.C., with his wife, Martha Kittrell, plaintiff, and plaintiff's son. In January 1979, Mr. and Mrs. Kittrell separated. At that time, Mr. Kittrell left some furniture, clothes and books in the house but removed all of his other belongings. Although Mr. Kittrell claims he intended to reclaim at least some of the remaining property, plaintiff alleges that he removed all of the possessions he intended to keep when he moved out in January. Mr. Kittrell also removed the telephone and had the number transferred to his new apartment. Although he continued to come to the house until April to collect his mail, in February Mrs. Kittrell changed the locks on all the doors and henceforth Mr. Kittrell was allowed in only with her permission. Mr. Kittrell did not enter the house between April and August and never removed any additional belongings.

On February 7, 1979, after Mr. Kittrell had moved out of the home, Special Agent LaFarree conducted a phone interview with Mr. Kittrell. During the interview, Mr. Kittrell stated that Fludd might have stolen the check. Following an investigation, on July 16, 1979, LaFarree interviewed Fludd at the Nicholson Street address. LaFarree asked Fludd to provide a handwriting sample. Claiming he knew nothing about the check, Fludd refused, but stated he would provide a handwriting sample if LaFarree followed proper legal procedures. On July 17, 1979, LaFarree obtained a subpoena for a handwriting exemplar returnable on August 7, 1979.

On August 3, 1979, at approximately 8:30 p.m., LaFarree, accompanied by Special Agent O'Donnell, went to the Nicholson Street address to serve the subpoena. ³ LaFarree knocked hard on the door several times. Although a light was on and LaFarree heard music or a television, there was no answer. Believing that Mr. Kittrell still lived at the Nicholson Street address, LaFarree contacted the dispatcher and asked the dispatcher to call the house to see if anyone was home. The dispatcher notified LaFarree that Mr. Kittrell was there and that he would be right down. When Mr. Kittrell had not appeared ten minutes later, LaFarree again called the dispatcher. The dispatcher again called Mr. Kittrell. The dispatcher then informed LaFarree that Kittrell no longer lived at the Nicholson Street address but would come over shortly to let them in.

According to defendants, when Mr. Kittrell arrived, he informed the agents that although he no longer lived there, he still owned the house and still had some of his possessions inside. He told the agents that he did not have his key with him but that he would let them in through the back door. After waiting for Special Agents Hall and Daugherty to arrive as backup, and briefing them on the situation, LaFarree and O'Donnell followed Mr. Kittrell around to the back of the house. Instead of going to the back door, however, Mr. Kittrell led the agents into the house through a basement door. Although defendants contend that the door was unlocked, both Mrs. Kittrell and Fludd state that it was their habit to keep the basement door locked.

Fludd, who had been listening to a radio in an upstairs bedroom, thought he heard some noise downstairs. Clad only in his undershorts, he went to investigate. While Fludd was standing in the kitchen, LaFarree, followed by Mr. Kittrell and O'Donnell, emerged from the basement stairs. Agent LaFarree was armed with a "large handgun." He pointed the gun at Fludd, ordered him to "freeze," and served him with the subpoena. A brief argument ensued in which Fludd questioned the authority of Mr. Kittrell and the agents to enter the home. Agent Hall entered the home briefly and shortly thereafter Mr. Kittrell and the agents left. Fludd provided the handwriting exemplar on August 7, and was subsequently cleared of any suspicion in the alleged theft of the check.

As previously stated, Fludd filed his complaint on August 3, 1982. More than two years later, on August 17, 1984, the six individual defendants moved for summary judgment. On the basis of affidavits from Mr. Kittrell and all the agents involved the defendants argued that there were no material facts in dispute and that, based on the undisputed facts, they were entitled to qualified immunity under the standards set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). On September 17, 1984, Fludd filed an opposition to the motion for summary judgment. On the basis of affidavits from Fludd and Mrs. Kittrell, Fludd argued that material issues of fact were in dispute and that, therefore, summary judgment on the issue of qualified immunity was inappropriate. On October 16, 1984, defendants filed their reply.

On February 28, 1985, the district court deferred consideration of the summary judgment motion and scheduled a "factual hearing" on the validity of Mr. Kittrell's consent. The court found that "[o]n that issue, the present record is not entirely clear and there are, indeed, some contradictions in the record." The court proposed to hear testimony from all the relevant witnesses

to explore (1) the authority of Zeno Kittrell to grant entry to 609 Nicholson Street to the agents, (2) the agents' belief regarding Mr. Kittrell's authority and the reasonableness of that belief on the basis of the surrounding circumstances, and (3) the agents' reasons for serving the subpoena at the time and place they did.

Fludd v. United States Secret Service, Civ. No. 82-2172 (D.D.C. Feb. 28, 1985) (order). Defendants moved for reconsideration arguing that the procedure was, in effect, a trial on the issue of liability without the opportunity for discovery. On March 8, 1985, the district court denied the motion. Defendants then filed a notice of appeal and sought a stay from the district court pending appellate review. The motion for stay was denied on April 5, 1985, and defendants filed a Petition for Writ of Mandamus and Emergency Motion for Stay with this court. On April 15, 1985, this court granted defendants' Petition for Writ of Mandamus and directed the district court to "cancel the evidentiary hearing" and to "resolve any uncertainties in the record which may prevent the district court from determining whether material facts are in dispute" by directing "the parties to submit additional affidavits." ⁴ Fludd v. United States Secret Service, Nos. 85-5336, 85-1221 (D.C.Cir. Apr. 15, 1985) (order).

II. DISCUSSION

We begin our discussion with the Supreme Court's recent pronouncement on the issue of qualified immunity, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Court adopted an objective test for qualified immunity:

government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 818, 102 S.Ct. at 2738. In explaining this new standard, the Court stated Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as...