Pleasant v. Lovell
| Decision Date | 06 August 1992 |
| Docket Number | No. 90-1314,90-1314 |
| Citation | 974 F.2d 1222 |
| Parties | -1706 John S. PLEASANT; Lewis G. Allen; Eldon D. Anthony; Robert J. Athey; Irvin Austin; Joe O. Baker; Carlton E. Bowser, Sr.; Brett J. Brough; John T. Bryant; Craig Buchanan; Thomas J. Chase; John L. Cheek; Milan A. Cicak, Sr.; John R. Clark; Donald H. Coats; William T. Conklin; Martin J. Cote; Daniel E. Dack; Herman L. Dearing; Glenn R. Dobey; Cecil L. Eisler, Jr.; Andrew J. Evanko; Franklin Thomas Fiedler; Arthur E. Filis; John A. Fisher; Floyd J. Fitch; Joanna Grandbouche; Johnie F. Hale, Jr.; Elijah N. Hall; Thomas H. Hanson; Robert Hawley; William L. Hayes; William H. Hedden; Wil Hendrickson; Jon R. Hoyt; Annie Lee Hudson; Bob Huebner; Garry Lee Johnson; Eugene J. Karlin; William Kizziar; Verland G. Kliven; Frank Kowalik, Jr.; Karen Kowalik; Charles J. Krall; Kenneth Krausnick; Dan J. Kronemeyer; Ruby Larkins, as personal representative for the estate of Larry G. Larkins; Arthur Lawrence; Arno T. Liebelt; Jerry L. Manka; Delmar Mehring; William A. Mertsching; Consuelo D. Milburn; J.P. Miller; Judson L. Morris; Ray E. Mulhbach; Floyd McElwain; David W. Niemela; Lorentz Opdahl; Evelyn M. Page; Earl L. Peterie; Eric J. Phelps; Lawrence Phillips; Richard R. Phillips, Jr.; Melanie Pleasant; Harold L. Pottorf; Virginia L. Quinn, as personal representative for the estate of Paday T. Quinn, Sr.; Franklin T. Fiedler, as personal representative for the estate of Jay Ross; Steven Rothacker; William B. Smith, Jr.; Wilmont Smith; Mary G. Spurgeon; Robert E. Spurgeon; John A. Voss; Sharon Voss; Robert J. Wagner; Steven Wagner; Donald E. Wishart; Floyd A. Wright; Lucian T. Zell, II, Plaintiffs-Appellants, v. Larry LOVELL; Vernon Pixley; Larry Hyatt, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William A. Cohan (Jennifer A. Greene, also of Cohan & Greene, Encinitas, Cal., and John S. Pleasant, Englewood, Colo., pro se, with him on the briefs), for plaintiffs-appellants.
John J. McCarthy, Atty., Tax Div., (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Jonathan S. Cohen and Charles M. Duffy, Attys., Tax Div.; Michael J. Norton, U.S. Atty., of counsel; and William G. Pharo, Asst. U.S. Atty., with him on the brief), U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.
Before LOGAN and BRORBY, Circuit Judges, and DAUGHERTY, District Judge. *
Plaintiffs, members of an organization known as the National Commodity and Barter Association (NCBA), appeal a judgment against them following a bench trial. Plaintiffs' action alleged First and Fourth Amendment violations by defendants, who are Internal Revenue Service (IRS) agents. In a prior appeal, Pleasant v. Lovell, 876 F.2d 787 (10th Cir.1989), we reversed in part a grant of summary judgment against plaintiffs and remanded for trial.
The facts are recited in our prior opinion, see 876 F.2d at 789-93, and we summarize them only briefly. In 1979 the Criminal Investigative Division of the IRS was investigating John Grandbouche, the founder and leading figure of the NCBA, and various groups involved in the tax protest movement. In September 1979 a private citizen, Pauline Adams, called the IRS and spoke with defendant Lovell. Adams was in contact with Grandbouche, plaintiff Pleasant, and other members of a group called Posse Comitatus. During the course of her contact with these individuals, Adams reportedly overheard discussions concerning activities that included intimidation of IRS personnel. Adams offered to disclose this information to the IRS. Defendant Lovell met with Adams, and the IRS classified her as a restricted source confidential informant. See I Addendum to Brief for Appellees (Addendum), ex. W at 1-4.
In October 1979 Adams took a clerical position working for Grandbouche and the NCBA, and she continued to provide information to defendants. At one time, after obtaining Justice Department authorization, the IRS electronically monitored the conversations of Grandbouche and his associates with the assistance of Adams. The electronic monitoring was short in duration and was discontinued for lack of evidence. 1
Adams' contact with defendants was extensive, as summarized in our prior opinion:
In early November 1979, Adams told defendant Lovell that she had been instructed to take the NCBA's trash home and burn it. She offered to let defendants Lovell and Pixley search the trash before she destroyed it. The agents accepted her offer.
Adams had agreed to stay in daily contact with the agents. Over a seven-week period, defendants Lovell and Pixley, alone or in combination, met with Adams ten times. At these meetings, Adams provided a narrative of what the trash contained and responded to questions. Over a nine-week period, defendant Lovell had some nineteen telephone conversations with Adams concerning the activities of Grandbouche and the NCBA.
876 F.2d at 791 (record citations omitted).
In addition to the trash Adams provided to defendants, she also supplied defendants with at least three nontrash items from Grandbouche's office. These included a handwritten mailing list with several hundred names, a duplicate of a cassette tape letter by Grandbouche, and numerous affidavits by supporters of a group known as the "Committee of 200,000 To Save The State of Colorado." 2 Id.
In December 1979 Adams left her job with Grandbouche, and the IRS terminated its relationship with her. Some of the information obtained from Adams was provided to a grand jury for use in its investigation of certain tax protestors. In 1982 the grand jury proceeding terminated and none of the plaintiffs or Grandbouche were indicted. 3 Id. at 792.
In 1983, plaintiffs brought this suit alleging that defendants violated their First Amendment rights to free speech and freedom of association and their Fourth Amendment rights against unreasonable search and seizure. Plaintiffs sought damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
In the earlier appeal, reversing in part the grant of summary judgment against plaintiffs, we held that material issues of fact existed concerning whether Adams was a government agent, and if so whether the information and documents relayed by Adams were obtained within the scope of her secretarial duties with Grandbouche thereby entitling defendants to qualified immunity.
After trial, the district court ruled that Adams was not a government agent and therefore no constitutional violations occurred; and alternatively, that Adams obtained all the materials within the scope of her authority and, therefore, qualified immunity protected defendants from liability.
We first consider whether the district court erred in finding Adams was not a government agent. In the first appeal we ruled that whether Adams was a government agent is a question of fact. See Pleasant, 876 F.2d at 807. We review the district court's factual determination under a clearly erroneous standard. See, e.g., Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.1990).
"Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, a question that can only be resolved 'in light of all the circumstances.' " Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989) (citations omitted). In the earlier appeal we identified two important factors to be considered: " '1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.' " Pleasant, 876 F.2d at 797 (quoting United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982)). Plaintiffs have the burden to establish by a preponderance of the evidence that Adams acted as a government agent. Cf. United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987) ().
The district court found that Adams was not an agent because the IRS did not control her actions; the court found that Adams acted independently and in some cases to the detriment of the IRS investigation and defendants. I R. tab 9 at 13-14 (Opinion). The district court believed that in the earlier appeal we had ruled conclusively that defendants knew of and acquiesced in the intrusive conduct. The court found, however, that Adams intended primarily to further her own ends and not to assist law enforcement efforts, and therefore she was not an agent.
We agree that defendants did not control Adams' every move and that she frequently acted independently and contrary to defendants' interests. Nevertheless, we hold that at some point Adams did become an agent of the government for purposes of the First and Fourth Amendments, and the district court's finding to the contrary was clearly erroneous.
The record supports the notion that Adams initially associated with Grandbouche and the NCBA for her own reasons and not to further law enforcement activities. 4 See I Addendum ex. X at 2 (); VI R. 929-30 (); see also IV R. 475 (). Adams voluntarily and without the knowledge of defendants associated herself with Grandbouche and NCBA members and offered her services to them. Adams was not approached or solicited by defendants; Adams initiated contact with defendants. It was her own decision to accept a full-time clerical position with Grandbouche and the NCBA. 5 But once defendants knew Adams would provide regular access to Grandbouche's trash and other materials, and they encouraged such conduct, see II Appellants' Addendum (App.Addendum)...
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