Maraziti v. First Interstate Bank of California, 90-56001

• Decision Date: 03 January 1992
• Docket Number: No. 90-56001,90-56001
• Citation: 953 F.2d 520
• Parties: -468, 92-1 USTC P 50,206 Richard J. MARAZITI, Plaintiff-Appellee, v. FIRST INTERSTATE BANK OF CALIFORNIA, a California corporation; T.P. Ferrand, individually and as a managing agent and officer of First Interstate Bank; City of San Diego, a California municipal corporation; Oscar M. Vasquez, individually and as a police officer for the City of San Diego (Badge 3628); Michael Nichochea, individually and as a police officer for the City of San Diego (Badge 1929); United States of America; David Simmons, Mr.; Mark Van Epps; Gene Carlson; Robert T. Thorpe, Defendants, and James Thibault; Janice L. Platt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 520

953 F.2d 520

69 A.F.T.R.2d 92-468, 92-1 USTC P 50,206

Richard J. MARAZITI, Plaintiff-Appellee, v. FIRST INTERSTATE BANK OF CALIFORNIA, a California

corporation; T.P. Ferrand, individually and as a managing

agent and officer of First Interstate Bank; City of San

Diego, a California municipal corporation; Oscar M.

Vasquez, individually and as a police officer for the City

of San Diego (Badge 3628); Michael Nichochea, individually

and as a police officer for the City of San Diego (Badge

1929); United States of America; David Simmons, Mr.; Mark

Van Epps; Gene Carlson; Robert T. Thorpe, Defendants,

and

James Thibault; Janice L. Platt, Defendants-Appellants.

No. 90-56001.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1991.

Decided Jan. 3, 1992.

Sally J. Schornstheimer, Dept. of Justice, Washington, D.C., for defendants-appellants.

Robert L. Zajac, Hillyer & Irwin, San Diego, Cal., for plaintiff-appellee.

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

Before WALLACE, Chief Judge, GOODWIN and ALARCON, Circuit Judges.

WALLACE, Chief Judge:

Thibault and Platt, agents of the Internal Revenue Service (IRS), appeal from an order of the district court denying their motion for summary judgment on grounds of qualified immunity. The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse.

I

Maraziti and Thorpe agreed to exchange a parcel of real property for cash. Maraziti proceeded to secure $500,000 in cashier's checks, payable to Thorpe, from First Interstate Bank (bank). Meanwhile, Thorpe contacted the IRS and informed certain agents, including Thibault and Platt (agents), that he had not paid income taxes for the years 1984 and 1985. Thorpe told the agents of the cash transaction that was to take place with Maraziti, the amount of money involved, and his desire to pay off his tax debt at that time. He also informed the agents that he was extremely fearful of Maraziti. The agents conducted a limited investigation and background check on Maraziti. Meanwhile, Thorpe filed tax returns for 1984 and 1985. The agents subsequently performed a prompt assessment of Thorpe's tax liability, including penalties and interest.

On December 17, 1986, Maraziti and Thorpe took the checks to the bank. Maraziti was unaware of the agents' presence in a back room or their intention to collect Thorpe's tax liability. Maraziti presented the checks to an employee of the bank for the sole purpose of verifying their authenticity. Thorpe and Maraziti were then intentionally separated at the direction of agent Platt. The bank employee took the checks from Maraziti and brought them to Thorpe, who endorsed and cashed them. Thorpe gave the agents $353,323.76, kept the remainder and left the bank, accompanied by the agents. Upon Thorpe's departure, Maraziti was detained and searched for a weapon by San Diego police officers, allegedly at the request of bank officials and the agents.

Maraziti never received any property in exchange for the checks. He brought suit against the bank and its manager, the City of San Diego and two of its police officers, the United States, and others. Relying in part on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Bivens), Maraziti also sued the agents, seeking compensatory and punitive damages. Maraziti contends that the agents' actions violated his fourth, fifth, and fourteenth amendment rights. The agents asserted a qualified immunity defense under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (Harlow), arguing that Maraziti's allegations did not state a violation of any "clearly established" constitutional right. The district court stayed discovery pending the agents' motion for summary judgment. The district court subsequently entered an order denying the agents' motion on the Bivens claim. The agents moved for reconsideration, which was also denied.

II

A federal official's assertion of qualified immunity based upon the plaintiff's failure to state a "violation of clearly established law" is a question of law. Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 2816 n. 9, 86 L.Ed.2d 411 (1985). Notwithstanding the absence of a final judgment, the denial of a qualified immunity defense is appealable under the collateral order doctrine. Id. at 530, 105 S.Ct. at 2817. We review the denial of qualified immunity de novo (independently). Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989) (Baker).

A public official is entitled to immunity when his or her conduct is objectively reasonable as measured by reference to law clearly established at the time of the incident in question. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The agents contend that the district court erred by failing to place the burden of proving that the law was "clearly established" on Maraziti. In Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984) (Davis), the Supreme Court held that "[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue." See Baker, 887 F.2d at 186; Bothke v. Fluor Engineers & Constructors, Inc., 739 F.2d 484, 484 (9th Cir.1984). If this burden is met by plaintiff, the defendant then bears the burden of establishing that his actions were reasonable, even though they might have violated the plaintiff's constitutional rights. Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988).

The written order of the district court does not outline the burden of proof on the qualified immunity issue. However, in her oral ruling, the district judge observed that she could not "make a finding that clearly established law was violated because [Maraziti] has not presented a sufficient argument in order for [her] to do so." Nevertheless, the district judge embarked on an analysis of whether clearly established law was violated and concluded that it was "entirely possible that the violation of IRS regulations in this case ... did violate clearly established law." The district court then went on to discuss the remaining question of whether the agents' conduct was reasonable and stated that "neither side has made [a] sufficiently strong showing and thus there remains an open question of material fact as to whether the agents acted in an objectively reasonable manner." The district judge therefore concluded that summary judgment was inappropriate.

The agents argue that the district court erred by denying summary judgment, and that Maraziti's failure to meet his initial burden to show a clearly established right mandates judgment for the agents. See Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 645-46 (10th Cir.1988).

III

Maraziti has attempted to satisfy his burden of demonstrating a clearly established right at the time of the agents' actions by: (1) making factual arguments that his fourth and fifth amendment rights were violated; (2) citing case law from other circuits to support a fifth amendment takings clause violation; and (3) alleging violations of IRS regulations. We address each of these contentions.

A.

Maraziti makes numerous factual allegations describing the purported violations of his constitutional rights. He points to the decision of agent Thibault, head of the fraud division, to issue a prompt assessment, rather than a jeopardy assessment, of liability against Thorpe. The primary basis of Maraziti's allegation that Thibault violated his fourth and fifth amendment rights is that Thibault did not exercise his supervisory authority to investigate the matter and to prevent other agents from collecting Thorpe's taxes. Maraziti cites no cases, and we have found none, in support of his argument that an agent's failure to investigate a taxpayer's story, which results in the taxpayer using a third party's funds to pay his own tax liability, violates the fourth or fifth amendment rights of the third party. We hold, therefore, that Maraziti has failed to show any such constitutional protection under these circumstances.

Maraziti next argues that agent Platt, as a Criminal Investigation Division agent, violated his constitutional rights when she conducted a background search on Maraziti and when she separated Maraziti and Thorpe at the bank. Platt responds that her actions were based on statements by bank officials that "Maraziti's prior conduct and statements had been erratic and irrational." Maraziti alleges that his separation from Thorpe, instigated by Platt, led to the loss of his money, and that Platt's actions violated his right not to be denied property without due process of law.

Maraziti presents no case law establishing a constitutional violation in this situation. Instead, he contends that "[c]learly, the IRS agents cannot argue that the United States Constitution is not a well known constitutional development." Generalized allegations of constitutional violations, however, are insufficient to rebut an official's assertion of a qualified immunity defense. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). "[T]he 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." Id. at 640, 107 S.Ct. at 3039. Maraziti's general due process claim fails to meet this standard.

Maraziti also argues that his fourth amendment rights were violated when the police searched him for a weapon. The complaint alleges that this search was conducted at the request of the agents. The...