Wolfenbarger v. Williams, s. 86-2221

• Decision Date: 03 August 1987
• Docket Number: Nos. 86-2221,86-2235,86-2222,s. 86-2221
• Citation: 826 F.2d 930
• Parties: Margaret A. WOLFENBARGER, d/b/a Shady Sam's Pawn Shop, Plaintiff-Appellee, v. Clancy WILLIAMS, Loy Bean, and the City of Lawton, Oklahoma, Defendants, and Robert L. Gillian, Dick Tannery, and Robert Perrine, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 930

826 F.2d 930

Margaret A. WOLFENBARGER, d/b/a Shady Sam's Pawn Shop, Plaintiff-Appellee, v. Clancy WILLIAMS, Loy Bean, and the City of Lawton, Oklahoma,

Defendants,

and

Robert L. Gillian, Dick Tannery, and Robert Perrine,

Defendants-Appellants.

Nos. 86-2221, 86-2222, 86-2235.

United States Court of Appeals, Tenth Circuit.

Aug. 3, 1987.

Rehearing Denied in No. 86-2235

Aug. 20, 1987.

Warren H. Crane, Lawton, Okl., for plaintiff-appellee.

David W. Lee, Asst. Atty. Gen. (Michael C. Turpin, Atty. Gen., with him on the brief), Oklahoma City, Okl., for defendants-appellants Dick Tannery and Robert Perrine.

Felix A.D. Cruz, Asst. City Atty. (David M. Curtis, City Atty., with him on the brief), Lawton, Okl., for defendant-appellant Robert L. Gillian.

Before SEYMOUR, and BARRETT, Circuit Judges, and BROWN, ^* District Judge.

BARRETT, Circuit Judge.

This appeal requires us to consider, from a slightly different perspective, the same issues we addressed in Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986), (hereinafter Wolfenbarger I ). In that case we held that a pawn shop owner had a constitutionally protected interest in goods pledged to her, though the goods turned out to be stolen. We held that this interest was sufficient to support a claim under 42 U.S.C. Sec. 1983 that she had been deprived of such goods by law enforcement officials without due process of law. We are now called upon to decide whether this rule was, at the time the alleged deprivation occurred, so clearly established that the defendants should have known they were violating the plaintiff's constitutional rights.

The facts are the same as in Wolfenbarger I and a complete recitation can be found there. For our purposes, the relevant facts may be summarized as follows. On August 15, 1980, Police Officer Clancy Williams visited Shady Sam's Pawn Shop in Lawton City, Oklahoma, and discovered various items of stereo equipment that had been reported stolen. Officer Williams placed a "hold" on the items officially requesting Margaret Wolfenbarger, owner and operator of Shady Sam's Pawn Shop, not to sell or otherwise dispose of the equipment because it might be needed as evidence in a criminal investigation and prosecution.

On October 30, 1980, District Attorney Dick Tannery wrote a letter to Lawton City Police Chief Robert Gillian advising him that when police officers discover stolen property in pawn shops, they should "seize the property and place on property receipt in the custody of the police department...." to await a determination of ownership by a magistrate. Gillian promulgated Tannery's letter to all members of the police department. Acting pursuant to the instructions in this letter, and without a warrant, Officers Williams and Loy Bean went to Shady Sam's Pawn Shop, seized the stereo items that had previously been placed on hold, and removed the items to the property vault at the Lawton City Police Station. On November 13, Assistant District Attorney Robert Perrine sent a memorandum to Officer Williams directing him to release the stereo items to Louie Loggins, the true owner of the property. Officer Williams turned the items over to Loggins the following day.

The procedures described in the November 13 memorandum from Perrine and, arguably, the October 30 memorandum from Tannery, deviated from prior police department procedures for the handling of stolen items found in pawn shops and differed from the procedures provided for by Oklahoma statutes. Oklahoma law requires pawn brokers to permit police officers and others to inspect goods in their store that may have been stolen or embezzled. Okla.Stat. tit. 21, Sec. 1092 (1981). Oklahoma law further provides, however, that when police officers come into custody of stolen property, they must deliver the property to a magistrate who, upon satisfactory proof of title of the owner of the property, may order that the property be delivered to the owner. Okla.Stat. tit. 22, Secs. 1321, 1322 (1981).

Wolfenbarger received no notice that Williams would release the property to Loggins and no judicial determination of ownership of the property was made. Wolfenbarger filed a replevin action against Williams in state court immediately after Williams seized the two items. The district court, however, dismissed the action as moot after Williams gave the items to Loggins.

Wolfenbarger then brought suit in federal district court under 42 U.S.C. Sec. 1983 alleging that the defendants had violated her constitutional rights by seizing the property in her shop without a warrant and turning it over to Loggins without a judicial determination of ownership. The district court initially ruled that Wolfenbarger had no constitutionally protected property interest in the stolen items and granted summary judgment in favor of the defendants. We reversed that ruling in Wolfenbarger I and remanded the case for further proceedings. On remand, the defendants again moved for summary judgment, this time arguing that they were protected from suit by qualified immunity. The district court denied the defendant's motion, reasoning that since Oklahoma statute required the participation of a magistrate in the return of stolen property to the purported owner, the defendants had acted in violation of clearly established law.

In this appeal, the defendants make three arguments in support of their claim of qualified immunity. First, they urge that Wolfenbarger's property interest was not clearly established. Second, they maintain that the seizure of the stereo items without a warrant did not violate the United States Constitution. Finally, Tannery and Perrine argue that they are entitled to qualified immunity because their memoranda constituted "legal advice."

I.

Qualified immunity is an affirmative defense that must be raised by defendants seeking its protection. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court fashioned an objective test out of the doctrine of qualified immunity and held 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." See also Anderson v. Creighton, --- U.S. ----, ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). ("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.") As the defendants point out, the Supreme Court has emphasized the importance of granting summary judgment on the basis of qualified immunity in suits against government officials as a means of screening out insubstantial claims and shielding government officials from the costs and burdens of trial and discovery. Id. Thus, unless the "essentially legal question" of whether the defendant's conduct violated clearly established law can be resolved affirmatively, the action should be dismissed. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).

The defendants argue that the district court should have granted their motion because, at the time the items were seized, it was not clearly established that Wolfenbarger had a protected property interest in the stereo equipment. They note the Court's holding in Harlow that the focus must be on the law as it was at the time the action occurred. Id. at 818, 102 S.Ct. at 2738. They point out that the state and federal court decisions bearing upon property interests in stolen property were not announced until after Wolfenbarger's stereo had been seized and turned over to Loggins. See Lavicky v. Burnett, 758 F.2d 468 (10th Cir.1985), cert. denied, Moore v. Lavicky, 474 U.S. 1101, 106 S.Ct. 882, 88 L.Ed.2d 917 (1986); Snethen v. Oklahoma Union of the Farmers Educational and Co-operative Union of America, 664 P.2d 377 (Okla.1983); Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982). They maintain that while it is now clearly established that Wolfenbarger has a property interest in the stereo items, it was not clearly established at the time.

To determine whether Wolfenbarger had a clearly established property interest in the stereo items, we must consider whether "existing rules or understandings" stemming from an independent source such as state law operated to "secure certain benefits" and to "support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). In Wolfenbarger I, we evaluated several Oklahoma cases in reaching our conclusion that Wolfenbarger had a property interest in the stereo items. We now hold that by the weight of those cases, as well as certain Oklahoma statutory provisions in effect at the time of the incident in question, it was clearly established that Wolfenbarger had a property interest in the items.

In Wolfenbarger I, 774 F.2d at 361-62, we observed that under Oklahoma law a pawn broker does not hold title to property received in pledge, Miller v. Horton, 69 Okl. 147, 170 P. 509, 511 (1917), that one cannot transfer better title than one has, Al's Auto Sales v. Moskowitz, 203 Okl. 611, 224 P.2d 588, 591 (1950), and that even an honest pawn broker cannot hold stolen property as against the true owner. Adkisson v. Waitman, 202 Okl. 309, 213 P.2d 465, 466 (1949). We also noted, however, that in Oklahoma a pawn broker's property interest will support an action for replevin, Williams v. Williams, 274 P.2d 359, 362 (Okla.1954); Cf. Riesinger's Jewelers, Inc. v. Roberson, 582 P.2d 409, 411 (Okla.App.1978), that in such an action the question of ownership and right of possession must be decided by a trier of fact, Henderson v. Lacy, 347 P.2d 1020, 1021 (Okla.1959), and that...