Ginter v. Stallcup

• Decision Date: 19 April 1989
• Docket Number: No. 88-1130,88-1130
• Citation: 869 F.2d 384
• Parties: Norma GINTER, Appellant, v. James STALLCUP, Individually and in his official capacity; Lawrence County, Arkansas; James Blasingame; Jack Knox, Appellees, Boone County, Arkansas Tom Lee; City of Ravenden, Arkansas, Appellees. Roy Norvell.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 384

869 F.2d 384

Norma GINTER, Appellant, v. James STALLCUP, Individually and in his official capacity;

Lawrence County, Arkansas; James Blasingame;

Jack Knox, Appellees,

Boone County, Arkansas

Tom Lee; City of Ravenden, Arkansas, Appellees.

Roy Norvell.

No. 88-1130.

United States Court of Appeals,

Eighth Circuit.

Submitted September 21, 1988.

Decided March 6, 1989.

Rehearing and Rehearing En Banc Denied April 19, 1989.

Kay DeMailly, Little Rock, Ark., for Stallcup.

Richard Pence, Little Rock, Ark., for Blasingame & Knox.

David White, North Little Rock, Ark., for City of Ravenden, Ark.

Richard A. Jarboe, Walnut Ridge, Ark., for Lawrence County, Ark.

Before HEANEY ^* and BOWMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

PER CURIAM.

This civil rights action emerged from the attempted apprehension of Gordon Wendall Kahl by federal, state and local law enforcement officers at the residence of Leonard and Norma Ginter, near Smithville, Arkansas, on June 3, 1983.

Kahl, then a federal fugitive charged with the murders of two Deputy United States Marshals, fled to Arkansas, hiding in Norma Ginter's residence. James Blasingame, F.B.I. Special Agent in Charge of the State of Arkansas, obtained a search warrant authorizing a search of the house. Several F.B.I. agents, federal marshals, state troopers and local police officers travelled to Ginter's residence. During their attempt to apprehend Kahl, Ginter's house was burned to the ground. As a result, Ginter lost all of her personal possessions. She and her husband were arrested, charged and convicted in federal court for harboring Kahl. The Ginters were also charged in state court with capital murder for the death of Lawrence County Sheriff Gene Matthews, who was killed in the arrest attempt. The capital murder charge was later dropped.

On May 17, 1985, Norma Ginter instituted a civil rights action against the named defendants, alleging that her personal possessions had been destroyed when Blasingame allowed or ordered Lawrence County Deputy Tom Lee and other law enforcement officials to intentionally set her residence on fire in contravention of state arson statutes and the fourth and fourteenth amendments to the United States Constitution. ¹ She also alleged that Lawrence County Prosecutor James Stallcup violated her constitutional rights by illegally arresting her, charging her with capital murder and defaming her.

On appeal, Ginter alleges that the district court erred in dismissing Lawrence County and the City of Ravenden from the suit and in granting qualified immunity to James Blasingame, F.B.I. Agent Jack Knox, ² and Tom Lee for the destruction of Ginter's residence. 641 F.Supp. 939 (1986). She also challenges the dismissal of her state arson claims and the dismissal of all claims against Stallcup. After an exhaustive review of the record, we affirm the district court's decision to dismiss Knox, to dismiss the arson claims, ³ and to dismiss any claims against Stallcup. ⁴ While we also affirm the district court's decision to grant qualified immunity to Blasingame and Lee, we do so for different reasons.

I. BACKGROUND

Ginter alleges that the defendants, either directly or indirectly, participated in setting her residence on fire, destroying all of her personal possessions. She alleges that the use of fire was an unnecessary and unconstitutional use of force.

The defendants, through a series of exhibits and affidavits, concede that Lawrence County Sheriff Gene Matthews, Deputy U.S. Marshal Jim A. Hall and Arkansas State Trooper Ed Fitzpatrick entered the Ginter residence in search of Gordon Kahl. They allege, however, that Kahl shot Matthews after they entered the kitchen. All three men fled and F.B.I. agents then began firing tear gas projectiles and rifle fire into the house in an attempt to effectuate Kahl's arrest. Tom Lee testified that he sought out diesel fuel and, upon the orders of F.B.I. agents at the scene, introduced it, along with tear gas grenades and smoke canisters, into a roof vent on the top of the Ginter residence. Blasingame, the F.B.I. agent in charge, denies, however, participating in any plan to set the residence on fire. He stated in an affidavit that he ordered the use of tear gas after Matthews, Fitzpatrick and Hall fled from the house because he believed someone inside the house was shooting at them with an automatic weapon, but he denies participating in the attempt by Lee and other F.B.I. agents to use diesel fuel to force Kahl out of the house.

II. PUBLIC POLICY

The district court found that public policy precluded Ginter, who had been convicted for harboring a fugitive in the residence, from using "the courts to recover for damage to her home caused by law enforcement officials' pursuit of that felon." The district court relied on United States v. James Lee Smith, 659 F.2d 97 (8th Cir.1981) to support its holding that Ginter could not recover her lost property because the act of harboring Kahl "occasioned the necessity for the actions which occurred on June 3, 1983." We disagree with the district court's reliance on this case and find it inapplicable to the present factual circumstances.

In James Lee Smith, Smith entered into an agreement with an undercover police officer to purchase thirty pounds of hashish for the amount of $64,000. During the sale, Smith gave a $25,000 down payment to the police officer. After the arrest and conviction of Smith, the government retained possession of the money. The government then filed a declaratory judgment seeking a ruling that the money was the property of the United States. Smith asserted that he had given the undercover police officer the cash pursuant to a contract and that he had a right to the money under the principles of contract law. This Court held that it would violate public policy "to permit the courts to be used by * * * wrongdoer[s] * * * to obtain the property * * * voluntarily surrendered as part of [an] attempt to violate the law." James Lee Smith, 659 F.2d at 100. The Court found the agreement between Smith and the police officer to be an illegal contract and unenforceable in court. Id.

While we agree with the district court that felons should not be able to rely on the court system to enforce illegal contracts, we disagree that James Lee Smith precludes a convicted felon from suing law enforcement officers who destroy private property in violation of the fourth amendment. First, the issue in James Lee Smith was whether the court could enforce an illegal agreement to purchase hashish, not whether the court could hold police officers liable for using unreasonable force to effectuate a search warrant. Second, even though Ginter illegally hid Kahl in her home, that action did not cause the destruction of her personal possessions. Ginter may have voluntarily broken the law, but she did not voluntarily surrender her personal possessions to the police. Police officers may not avoid liability for unconstitutional behavior merely by asserting that a criminal deserved to be a recipient of such treatment. Public policy does not prohibit persons convicted of felonies from using the courts to protect their constitutional rights. Thus, we hold that public policy would not preclude Ginter from recovering for lost personal possessions if she could show that the use of the diesel fuel violated her fourth and fourteenth amendment rights.

III. QUALIFIED IMMUNITY

Ginter challenges the decision to grant qualified immunity to Blasingame and Lee before allowing her to conduct discovery in this case. Government officials performing discretionary functions are shielded from liability for civil damages, and even from intrusive discovery proceedings in civil suits, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A defense of qualified immunity is defeated, however, if an official knew or should have known that his actions, taken within the sphere of official responsibility, would violate the constitutional rights of the plaintiff or if he took the action with the malicious intention to cause a deprivation of constitutional rights. Harlow, 457 U.S. at 815, 102 S.Ct. at 2736.

On summary judgment, the trial court must first determine whether the law prohibiting the alleged police conduct was clearly established at the time it occurred. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law at that time was not clearly established, an official could not reasonably be expected to know that the law forbade such conduct. Id.

Second, a trial court must determine whether the police conduct, as alleged by the plaintiff, constituted actions that a reasonable officer could have believed lawful. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (a police officer may not be held personally liable unless a reasonable officer, possessing the information of the searching officer, could not have believed the actions allegedly taken were lawful). If so, the defendant is entitled to dismissal prior to discovery. If not, and the parties disagree as to what actions the police officers took, then discovery may be necessary before the defendant's motion on qualified immunity can be resolved. Anderson v. Creighton, 483 U.S. at --- n. 6, 107 S.Ct. at 3042 n. 6, 97 L.Ed.2d at 535 n. 6. Yet the Supreme Court cautioned: "One of the purposes of the Harlow qualified immunity standard is to protect public officials from the 'broad-ranging discovery' that can be 'peculiarly disruptive of effective government.' " Id. Thus, discovery should occur on the issue of qualified immunity only if the parties disagree as to what actions the law enforcement officers took and if the plaintiff can present some evidence to support her allegations. Mere allegations, without more, do not create a question of fact as to...