Forsyth v. Barr, 93-1052

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation19 F.3d 1527
Docket NumberNo. 93-1052,93-1052
PartiesJan FORSYTH, et al., Plaintiffs-Appellants, v. John Holman BARR, et al., Defendants, Mack VINES, Dwight Walker, Willard Rollins, Defendants-Appellees, v. CITY OF DALLAS, TEXAS, Defendant-Appellee-Appellant.
Decision Date20 April 1994

Douglas R. Larson, Mesquite, TX, for Forsyth & Kirks.

Edward B. Cloutman, III, Dallas, TX, for Bruton & Bruton.

Bill Boyd, Boyd, Veigel & Hance, McKinney, TX, for Vines.

Fritz J. Aldrine, II, Asst. City Atty., Katherine Knight, Kathleen Finck, Craig Hopkins, Dallas, TX, for Walker, Rollins and City of Dallas.

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

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

At issue is a summary judgment awarded the appellees (City of Dallas and three of its police officers) on the appellants' claims under the Federal Wiretap Act, 18 U.S.C. Secs. 2510-2521: (1) for interception by a third person (appellants claim conspiracy) of the appellants' telephone conversations, when two of the appellants were police officers involved in an undercover operation; and (2) for the appellees' disclosure and use of the contents of those intercepted conversations for a police internal affairs investigation, conducted after that information was conveyed to the police as part of the bases for charges against one of the appellants (an officer).

The appellees deny that they were involved in the interception of the communications, but they did disclose and use the information in their investigation. In the final analysis, the summary judgment hinges on whether the disclosure and use were permitted by the Act, it being undisputed that they were "appropriate to the proper performance of the [appellee officers'] official duties", as provided for in Sec. 2517(1) and (2). The linchpin to that question, assuming that the third person illegally intercepted the information, is whether the appellee officers' "obtain[ing]" that information from that person was "by any means authorized by" the Act, as found in Sec. 2517(1) and (2). The meaning of this phrase is far from clear; but the legislative history sanctioning such disclosure and use of illegally intercepted information is crystal clear.

The persons whose conversations were intercepted--Jan Forsyth and Richard Kirks (the officers), and Susan and Charles Bruton (the latter being an informant)--appeal from the judgment for the City, Dwight Walker, Willard Rollins, and Mack Vines. The City appeals being required to provide independent counsel for Vines. We AFFIRM.

I.

Dallas police officers Forsyth and Kirks, two of the four appellants, were assigned to the Intelligence Division. In December 1987, under the supervision of appellee Rollins of that division, they began an undercover investigation, with appellant Charles Bruton acting as an informant. His wife, appellant Susan Bruton, had been an informant previously for Forsyth. The investigation was conducted, in part, from the Brutons' home in Dallas, including over their telephone.

While the undercover investigation was ongoing, appellant Forsyth was telephoned in March 1988 by John Barr, a Dallas attorney, 1 about an unrelated civil case involving appellant Charles Bruton (the informant) and Barr's client, George Grogan. 2 The appellants alleged in their complaint that Grogan had hired Bruton to illegally dispose of toxic chemicals; that he had reported the illegal disposal, causing state environmental authorities to initiate an investigation of Grogan; that Barr sought Forsyth's assistance in having Bruton recant his illegal disposal charges; and that Forsyth refused to become involved.

The appellants further alleged in their complaint that, in June 1988, Barr and Grogan contacted the Dulworths, neighbors of both Grogan and the Brutons, 3 and asked for their assistance either in discrediting Charles Bruton, Forsyth, and Kirks, or in finding a way to force Bruton to recant his waste disposal charges; that the Dulworths held a grudge against Bruton because he had testified in a criminal trial against Gary Dulworth; that the Dulworths arranged to route the Brutons' telephone line into a previously dormant line at the Dulworths' home, so that, on an extension in their home, the Dulworths could listen to the Brutons' telephone conversations; and that Barr, Grogan, and the Dulworths monitored and recorded the Brutons' calls, in violation of the Wiretap Act.

On September 22, 1988, Grogan, Barr, and one of Barr's law partners met with appellee Walker, who was in charge of the police Internal Affairs Division, and charged that Forsyth had engaged in criminal and administrative misconduct during the undercover investigation. 4 Walker was told that, over one of her telephones, Mrs. Dulworth had overheard conversations between Charles Bruton and Forsyth; that Mrs. Dulworth thought that the telephone had been disconnected, but that it had suddenly become operable; and that she had told Grogan that she believed that her telephone line had become crossed with the Brutons'. Barr told Walker that a wiretap was not involved, and Walker believed that the telephone had become a party line accidentally.

At the meeting, Barr made very serious charges against Forsyth and the Brutons. 5 At the conclusion of the meeting, Walker was not certain which charges arose out of the telephone eavesdropping and which came from other sources. At least some of the information was obtained by Barr, his law partner, and Grogan from sources other than the intercepted conversations. Walker assumed that information about a personal trip by Forsyth and Charles Bruton was overheard. See note 5, supra. The information about Charles Bruton participating in a drug deal was overheard also. See note 5.

Walker decided to conduct a preliminary internal affairs investigation of the charges. Such investigations are conducted to ensure the integrity of the police department. They are not considered formal complaints; and, unless a violation is identified, they are not reflected in the personnel record of the investigated employee.

On either September 22 or 23, Walker informed appellee Rollins (the supervisor of Forsyth and Kirks' undercover investigation) about the meeting with Barr and the charges against Forsyth. In turn, on either September 22 or 23, Rollins informed Lieutenant Lybrand (one of Forsyth and Kirks' supervisors) about the charges. Lybrand advised Rollins that the police department should investigate whether a wiretap was in place; Rollins responded that any investigation should be performed by the FBI.

With Lybrand present, Rollins met on September 23 with Kirks and Forsyth, informed Forsyth that a complaint had been filed against her, and instructed them not to discuss police business over the Brutons' telephone or to tell anyone that he had given them that order. Kirks and Forsyth left the meeting believing that there was a "legal wiretap" on the Brutons' line, although neither Rollins nor Lybrand told them anything about a wiretap. They interpreted Rollins' instructions as permitting non-business discussions, and continued to have conversations on the line after September 23. 6 Rollins assumed that business was the extent of the relationship between the Brutons and Kirks and Forsyth, 7 and did not anticipate that the officers would continue to use the Brutons' telephone.

Shortly after the September 22 meeting with Walker, Grogan contacted City Manager Richard Knight about the matter, because Mrs. Dulworth had advised Grogan that she had overheard another telephone conversation in which Charles Bruton had said that the telephone line was "hot". Grogan concluded that Walker had disclosed to Forsyth and Kirks the information received from Barr and him (Grogan). At Knight's request, appellee Vines, the Chief of Police, met with Grogan. Vines was kept apprised of the progress of the internal affairs investigation.

On September 26, Walker gave his notes from the September 22 meeting to Detective Jennings of the Internal Affairs Division, and described that meeting and the charges against Forsyth. In conducting the preliminary investigation, the appellees used the information received on September 22 from Grogan, Barr, and his partner, including the information obtained from intercepted conversations and that obtained from other sources.

Jennings interviewed Barr on October 3, regarding the condition of the Dulworths' telephone and the charges. 8 That same day, after interviewing Barr, Jennings contacted Southwestern Bell Telephone Company and requested a check on the Dulworths' telephone line. In response, a Southwestern Bell employee went to the Dulworths' home the next day, October 4. With Charles Bruton present, the employee located and disconnected a spliced wire connecting the Dulworths' and Brutons' lines. Bruton told the employee that he knew that the Dulworths had been "wiretapping" or "listening in" on his telephone. 9 The employee removed the connectors and gave them to Charles Bruton who turned them over to Kirks. Later, Jennings gave them to the FBI.

Upon completing the internal affairs report, Jennings forwarded it to the chain of command on November 2, 1988. The investigation resulted in charges against Forsyth being classified as "unfounded".

Forsyth and Kirks filed suit against Barr, Grogan, the Dulworths, the City, Vines, Rollins, and Walker in February 1989. They alleged that the Dulworths "entered into an illegal agreement with BARR and GROGAN to illegally intercept and/or record and/or illegally use information from telephone conversations" between Charles Bruton and Forsyth and Kirks; and that Vines, Rollins, and Walker, on behalf of the City, "knowingly accepted and used information illegally intercepted from [such] telephone conversations". In August 1989, the action was consolidated with a similar...

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