James v. City of Douglas, Ga., 90-8353

• Decision Date: 18 September 1991
• Docket Number: No. 90-8353,90-8353
• Citation: 941 F.2d 1539
• Parties: Celeste JAMES, Barry James, Plaintiffs-Appellees, v. CITY OF DOUGLAS, GA., Defendant, Clyde Purvis, John Doe--Clifford Thomas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1539

941 F.2d 1539

Celeste JAMES, Barry James, Plaintiffs-Appellees, v. CITY OF DOUGLAS, GA., Defendant Clyde Purvis, John Doe--Clifford Thomas, Defendants-Appellants.

No. 90-8353.

United States Court of Appeals Eleventh Circuit.

Sept. 18, 1991.

David H. Connolly, Jr., James L. Elliott, Painter Ratterree Connolly & Bart, Savannah, Ga., for Thomas.

Roy E. Paul, Frank W. Seiler, Savannah, Ga., for City of Douglas.

Amanda F. Williams, Martha F. Dekle, Brunswick, Ga., for Celeste and Barry James.

Appeal from the United States District Court for the Southern District of Georgia.

Before JOHNSON and COX, Circuit Judges, and GODBOLD, Senior Circuit Judge.

PER CURIAM:

Celeste James filed this action against the City of Douglas, Georgia, and two of its police officers, Clyde Purvis and Clifford Thomas, alleging a 42 U.S.C. § 1983 claim and various pendent state law claims stemming from the viewing of a videotape of Ms. James and George Lee engaged in explicit sexual activity. Both Purvis and Thomas moved for summary judgment based on the doctrine of qualified immunity. The district court denied the motion, concluding that James's complaint alleged facts sufficient to amount to a violation of her clearly established constitutional right to privacy. Purvis and Thomas appeal the denial of summary judgment. We affirm.

I. FACTS AND PROCEDURAL HISTORY ¹

Celeste James and George Lee owned and operated a floral and bridal store in Douglas, Georgia. In February 1988, the store was destroyed by fire. The Douglas Police Department suspected that the fire was intentionally started in order to collect insurance proceeds. During the ensuing investigation, Claude Jones, then a captain in the Detective Division of the Douglas Police Department, was told by James that Lee was attempting to extort her portion of the insurance proceeds. She reported that Lee threatened to show James's family a videotape of James and Lee engaged in sexual activity unless James gave him her share of the insurance money. Lee videotaped this activity without the knowledge or consent of James. James told Captain Jones that she was unwilling to cooperate in the investigation and prosecution of Lee because of the embarrassing nature of the tape. Jones assured James that if she cooperated the police would handle the tape discreetly.

James assisted the police in their investigation; and in March 1988, the Douglas police arrested Lee. The police searched Lee's home and seized several videotapes, including the tape which depicted James and Lee engaging in sexual activity. All the police officers involved in the search of Lee's home viewed the tape on Lee's videotape player. The tape was then given to Jones but never logged-in as evidence. Instead, Jones kept the tape in his desk drawer. Later, on the same night as the search, Clifford Thomas, a detective in the Douglas Police Department, viewed the tape. Thomas contends that he viewed the tape at the request of Jones, but Jones denies making this request.

On the day after the search of Lee's home, other individuals watched the tape in the police station's briefing room. This group included Clyde Purvis, Chief of the Douglas Police Department, Assistant Chief John Sweat, Sheriff Paul Hutcheson and Chief Sheriff's Deputy Joe White. According to Purvis, Sheriff Hutcheson was there because the tape was seized in the Sheriff's jurisdiction, and Deputy White was there to operate the tape player. After viewing the tape, Purvis returned it to Jones.

In June 1988, Jones was terminated from the Douglas Police Department. In removing his belongings from his desk, he noticed that the copy of the tape then in his desk was not the copy he seized in March. Jones turned the tape over to Purvis, who maintained possession of it until this suit was filed.

In the months following Lee's arrest, James began to hear stories of numerous individuals viewing the tape. James confronted Jones with these allegations. Jones admitted to James that he knew several individuals had viewed the tape and that he believed several others had also viewed the tape.

In February 1989, James filed this action against the City of Douglas, Chief Clyde Purvis, and Clifford Thomas. ² The complaint alleges a claim under 42 U.S.C. § 1983, for violations of James's rights under the Fourteenth Amendment. ³ The complaint also alleges various pendent state law claims. Purvis and Thomas moved for summary judgment, ⁴ asserting that they are entitled to qualified immunity on the section 1983 claim and that James's complaint failed to state a claim upon which relief can be granted on the state law claims. The district court granted in part and denied in part their motion. The court reasoned that Purvis and Thomas were not entitled to qualified immunity because James's complaint alleges a violation of a clearly established right and she has produced sufficient evidence to create a genuine issue of material fact regarding whether Purvis and Thomas actually engaged in conduct that violated this right. The court concluded that James's complaint alleges a violation of the confidentiality branch of the right to privacy under the Constitution. On the state law claims, the court granted summary judgment for the city but denied the requests of Purvis and Thomas for summary judgment. ⁵ Purvis and Thomas appeal only the denial of summary judgment on the section 1983 claim.

II. ISSUES ON APPEAL

This court, sua sponte, raised the issue of whether we had jurisdiction to hear this appeal involving the denial of qualified immunity where there are additional claims that would proceed to trial regardless of the outcome of the appeal.

Purvis and Thomas appeal the denial of qualified immunity, asserting that they did not violate a clearly established constitutional right.

III. DISCUSSION

A. Jurisdiction

After this case was briefed and oral argument heard, the en banc court, in Green v. Brantley, 941 F.2d 1146 (11th Cir.1991) (en banc ), decided the precise jurisdictional issue present in this case. In Green, the en banc court held "that the denial of summary judgment based upon qualified immunity is appealable as a collateral order under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), even if an additional damage claim will proceed to trial regardless of the outcome of the appeal." Green, at 1148. We conclude that we have jurisdiction to hear this appeal.

B. Qualified Immunity

Purvis and Thomas appeal the district court's denial of summary judgment based upon the doctrine of qualified immunity. The court concluded that James's complaint alleges a violation of a clearly established constitutional right, the right to privacy, and that James had produced sufficient evidence to create a genuine issue of material fact regarding whether Purvis and Thomas actually engaged in conduct that violated this clearly established right. The court, therefore, held that Purvis and Thomas were not entitled to qualified immunity. Purvis and Thomas assert that the district court erred in concluding that James's complaint alleges a violation of a clearly established constitutional right.

An appellate court reviews the denial of summary judgment involving qualified immunity de novo. Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court created the standard to determine whether a public official can assert the defense of qualified immunity: "[G]overnmental officials ... 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 Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court clarified the standard by concluding that qualified immunity "turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time [the action] was taken." Id. at 639, 107 S.Ct. at 3038 (citations omitted). The Court further stated that

[i]t should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in light of preexisting law the unlawfulness must be apparent.

Id. at 640, 107 S.Ct. at 3039 (citations omitted).

"An official will be immune from liability if the applicable law was unclear or if a reasonable officer could have believed that his actions were lawful in light of the clearly established law and the information possessed by the officer." Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1504 (11th Cir.1990). A right is clearly established if, in light of the preexisting law, the unlawfulness of the conduct is apparent to the reasonable official. See id. In this case, we are required to determine whether, under James's version of the facts, Purvis and Thomas reasonably could have believed that allowing these other individuals to view the tape was lawful in light of existing law.

The district court concluded that James's complaint alleges a violation of the confidentiality branch of the constitutional right to privacy. Although the constitutional right to privacy has vague contours and has been in a state of flux in recent years, see, e.g., Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), we conclude that a reasonable official in Purvis's and Thomas's position would realize the apparent unlawfulness...