Summar on Behalf of Summar v. Bennett, 97-5927

• Decision Date: 14 October 1998
• Docket Number: No. 97-5927,97-5927
• Citation: 157 F.3d 1054
• Parties: James A. SUMMAR, on behalf of his deceased son, James A. SUMMAR, II and as next friend of the minor child, James Blank Summar, Plaintiff-Appellant, v. Ben BENNETT, individually and in his official capacity as an officer of the Rutherford County Sheriff's Department; Sheriff's Department of Rutherford County, Tennessee; Rutherford County, Tennessee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1054

157 F.3d 1054

James A. SUMMAR, on behalf of his deceased son, James A SUMMAR, II and as next friend of the minor child James Blank Summar, Plaintiff-Appellant, v. Ben BENNETT, individually and in his official capacity as an officer of the Rutherford County Sheriff's Department Sheriff's Department of Rutherford County, Tennessee Rutherford County, Tennessee, Defendants-Appellees.

No. 97-5927.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 4, 1998.

Decided Oct. 14, 1998.

Wesley M. Oliver (argued and briefed), Lionel R. Barrett, Jr. (briefed), Nashville, TN, for Appellant.

David Randall Mantooth (argued and briefed), Leitner, Williams, Dooley & Napolitan, Nashville, TN, for Appellees.

Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges.

OPINION

KRUPANSKY, Circuit Judge.

This case presents an appeal by James A. Summar ("Plaintiff") on behalf of his deceased son, James A. Summar II ("Summar"), and as next friend of his grandchild James B. Summar, a minor. Summar served as a confidential informant to the Rutherford County, Tennessee, Sheriff's Office until his death three or four days after Officer Benjamin Bennett ("Bennett") disclosed Summar's identity to the Rutherford County District Attorney's Office to assist in its preparation of a pleading against a criminal suspect about whom Summar had gathered evidence. Following his death, Plaintiff sued Bennett, the county, and the sheriff's office. The district court dismissed the complaint. Plaintiff has alleged that the district court committed reversible error when it resolved this cause because it concluded that a police officer who publicly discloses the name of a confidential informant is entitled to qualified immunity for the injury or death that occurs to the informant subsequent to that disclosure.

In June 1994, Bennett arrested Summar for his alleged possession of marijuana. After some discussion, Summar expressed an interest in serving as a confidential informant for the sheriff's office in exchange for Bennett's promise to advise the district attorney's office of Summar's cooperation, and to recommend that it "not pursue other members of the Summar family." J.A. at 15. On July 1, 1994, Summar executed a confidential informant information sheet. This document indicated Summar's understanding that his status as a confidential informant would be conditioned upon his willingness to wear a recording device, including a body wire, and to testify in open court. ¹ See J.A. at 48. Subsequently, Bennett requested that Summar assist the sheriff's office in several investigations of drug trafficking.

When Bennett asked Summar to aid in the investigation of Michael Rhodes ("Rhodes"), Summar refused, explaining that he "had a close personal relationship with that individual." J.A. at 16. In a deposition conducted in preparation for this case, Bennett elaborated by noting that Summar had "stated that he informed Mr. Rhodes of the [sheriff's office] request for assistance in the investigation and Mr. Rhodes responded, 'Do what you've got to do, but leave me out of it.' " J.A. at 16.

Despite his reluctance to participate in the investigation of Rhodes, Summar agreed to assist Bennett in his investigation of an acquaintance of Rhodes named Wayne Cartwright ("Cartwright"). Similarly, Summar agreed to assist the sheriff's office in its investigation of a drug trafficking suspect named John Wray ("Wray"). After Summar purportedly engaged in repeated but unsuccessful attempts to purchase illegal drugs from Wray, Bennett "determined that Mr. Summar was not making an effort to make such purchases. At about the same time, Mr. Summar ceased making telephone calls to [Bennett, who] interpreted Mr. Summar's lack of cooperation as an abandonment of his agreement to serve as a confidential informant[.]" J.A. at 43.

On September 19, 1994, Summar's plea agreement with the district attorney's office was approved by the court. At that time, Summar purportedly informed Bennett "that he was not going to honor his agreement to testify against ... Cartwright." J.A. at 43. Three months later, on December 12, 1994, Bennett provided information to the district attorney's office to assist its preparation of charges against Cartwright, including the name of his informant. David L. Puckett, Esq. ("Puckett"), an assistant district attorney, prepared the indictment. The charges specifically observed that one "James A. Summer [sic]" had purchased drugs from Cartwright. J.A. at 52.

The indictment was served on Cartwright on May 21 or 22, 1995. Summar was killed by a gunshot wound to the neck three or four days later. See J.A. at 17.

On February 19, 1997, Plaintiff filed the instant complaint in federal district court alleging that the actions of Bennett, the sheriff's office, and the county had deprived Summar and his family of certain rights, in violation of 42 U.S.C. § 1983 and various supplemental state laws. Plaintiff alleged that after Cartwright became aware that Summar had served as a confidential informant in the case mustered against him by the county, he directed Rhodes and an accomplice named Larry Brumit to murder Summar. Plaintiff also specifically averred that the actions of the defendants presented a deliberate failure to protect Summar's safety and identity despite the foreseeable risk to his life once his status as an informant became public. See J.A. at 9. Accordingly, Plaintiff sought compensatory and punitive damages.

In the only ruling relevant to this appeal, the district court dismissed the complaint against Bennett in his individual capacity on the basis of his qualified immunity. Although the trial court expressed agreement with a New Jersey district court that a "special relationship" is created when law enforcement officers and a confidential informant "anticipate that the informant's activities, if discovered, could result in a threat to the life of the informant," G-69 v. Degnan, 745 F.Supp. 254, 265 (D.N.J.1990), it nevertheless resolved that at the time Bennett caused Summar's name to be included in Cartwright's indictment, Bennett's purported duty to protect Summar pursuant to their special relationship premised upon this legal theory had not yet been clearly established. See J.A. at 26. Accordingly, the district court found Bennett insulated by qualified immunity for his failure to protect Summar from the foreseeable danger which ended his life.

Because the doctrine of qualified immunity is a legal issue, this court must review de novo its application by the district court. See Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir.1992). Moreover, this court is required to examine de novo all appeals from motions for summary judgment which an initial forum has allegedly improperly granted. See EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Like the district court, it must assess "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In performing this assignment, the court must "draw all justifiable inferences in favor of the non-moving party." Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir.1994). Nevertheless, the existence of a mere scintilla of evidence in support of the nonmovant's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. See Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505 (1986). At least one genuine issue of material fact must exist. See Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir.1992). A fact is material if it will "affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.

"Suits for monetary damages are meant to compensate the victims of wrongful actions and to discourage conduct that may result in liability." Forrester v. White, 484 U.S. 219, 223, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Despite these laudable goals, the threat of liability may also create perverse consequences, especially when it confronts certain public officials, because their decisions will often necessarily affect others adversely. See id. Naturally, the threat of liability to such officials may induce them "to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct." Id. To prevent this unintended and unfortunate consequence, the Supreme Court has developed a body of decisional law which shields certain official conduct within the panoply offered by "qualified" and "absolute" immunity. See, e.g. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

In Harlow, the Supreme Court confronted the particular brand of immunity presently before the court, and explained that "government officials performing discretionary functions 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." Harlow, 457 U.S. at 818, 102 S.Ct. 2727. "That 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 pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Informed by these legal precepts, this court has elected to analyze disputes over qualified immunity in two steps: "[T]he first step is to...