Wren v. Towe, 96-11388

• Decision Date: 30 December 1997
• Docket Number: No. 96-11388,96-11388
• Citation: 130 F.3d 1154
• Parties: A.J. WREN and Jerry Wren, Plaintiffs-Appellees, v. Jim TOWE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

130 F.3d 1154

A.J. WREN and Jerry Wren, Plaintiffs-Appellees, v. Jim TOWE, et al., Defendants-Appellants.

No. 96-11388.

United States Court of Appeals Fifth Circuit.

Dec. 30, 1997.

Douglas R. Larson, Law Office of Douglas R. Larson, Mesquite, TX, for Plaintiffs-Appellees.

Seth Byron Dennis, Assistant Attorney General, Austin TX, for Towe.

Brett Christopher Govett, Dallas, TX, for Norris.

Appeal from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

PER CURIAM:

The case before this panel comes from the United States District Court for the Northern District of Texas, Judge Robert B. Maloney, presiding. The district court denied a motion for summary judgment made by the Defendants-Appellants, Jay Norris ("Norris") and Jim Towe ("Towe") on the issue of qualified immunity.

Background

In January of 1995, Norris was teaching a class in Basic Auto Theft to a group of students at the Arlington Regional Police Academy. During one of these lessons, Norris was informed by an eager student that he saw a Chevrolet pickup truck parked in the parking lot that was missing its dashboard Vehicle Identification Number ("VIN"). Norris, a member of the Dallas FBI Auto Theft Task Force and a Special Texas Ranger, began investigating the ownership of the truck.

Norris confirmed the absence of the dashboard VIN, and he conducted a computer database search on the truck. This search showed that the truck was registered to a dealer, though it did not have dealer tags, was not on a sales lot, and did not have a "for sale" sign. Norris ran a search on the license plates of the truck, which indicated a different VIN for the truck. Further investigation suggested to Norris that the truck had been totaled or salvaged at some point, but the truck did not appear to be a salvaged or rebuilt vehicle to Norris at that time.

Norris contacted the former owners of the truck, who explained that it had been stolen and burned, a claim confirmed by the insurance company. At a later time, the truck was owned by Texas Custom Trucks, a truck reconditioning ¹ business which was under investigation by the Dallas FBI Auto Theft Task Force as a suspected "chop shop," a business which fashions reconditioned vehicles from stolen parts. The State of Texas has a procedure designed to foil would-be chop shop operators, in which reconditioned vehicles must be inspected by a law enforcement official and certified to be a legitimately reconditioned vehicle on Texas Department of Transportation ("DOT") Form 68-A (the "Form"). The Form 68-A on this truck was signed by Lt. Paul Pothen ("Pothen"), a narcotics officer with the DeSoto, Texas, police. Randy Brown ("Brown"), the proprietor of Texas Custom Trucks, was a narcotics informant of Pothen's. Norris smelled collusion.

Pursuing his investigation further, Norris located a DOT Form 61, which revealed that the truck cab was owned by a William Searcy ("Searcy"). Searcy was contacted by Norris, and they spoke. The substance of the conversation with Searcy is a matter of dispute, ² but it is undisputed that Searcy told Norris where he could find certain unique features on the cab (custom lights, etc.), and that GMAC held a lien on the truck.

Norris contacted GMAC, and was told that GMAC never repossessed Searcy's truck. He was also told that a lien was outstanding on the truck. The totality of all these circumstances led Norris to believe a crime may have been committed when Searcy sold the vehicle or its components without paying the GMAC lien. ³ Norris then contacted Towe, an officer of the Texas Department of Public Safety ("DPS"), who was attached to the Dallas FBI Auto Theft Task Force. Norris asked Towe for assistance in this investigation, and Towe agreed to help.

On March 16, 1995, Norris and Towe located the truck and the purported owners, Jennifer and Jerry Wren, the Plaintiff-Appellees (the "Wrens"). The truck was parked in a public place, and Norris and Towe conducted a search. ⁴ No VIN was found in the glove compartment, and there were parts throughout the vehicle with dates earlier than the truck's manufacture. This, coupled with the suspicious Form 68-A and the other circumstances, led Norris and Towe to believe that the vehicle was the product of an illegal chop shop. Norris and Towe decided that seizure of the vehicle was necessary for a more extensive investigation and that the seizure was justified under the TEX.CODE OF CRIM.PROC. ART. 47.01, et seq., and ART. 6687-1 § 49(c) (now codified as § 501.158 of the TEX.TRANS.CODE). The vehicle was seized, the Wrens were issued a receipt, and the requisite inventory form was filed with the Justice of the Peace Court. Upon further investigation of the vehicle, it was discovered that more confidential VINs were missing or obliterated. Norris and Towe thought this was inconsistent with a legitimately reconditioned truck.

A hearing was held on April 14, 1995, before Justice of the Peace Roy Kurbin, pursuant to his authority and jurisdiction under TEX.CODE OF CRIM.PROC. ART. 47.01, et seq. After hearing the evidence, Judge Kurbin found that probable cause existed at that time, and awarded possession to the Dallas FBI Auto Theft Task Force. Subsequently, it became apparent that the truck was not the product of an illegal chop shop. The truck was held until August 23, 1995, when the county court awarded the vehicle to the Wrens, pursuant to an agreed order.

The Wrens filed suit against Norris and Towe ⁵ on July 6, 1995, asserting claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendment protections against unreasonable seizure, together with state law claims of trespass and conversion. Norris and Towe claimed both qualified and official immunity. Norris and Towe moved for summary judgment, and their motion was denied on October 2, 1996 by Judge Robert B. Maloney. Judge Maloney held that (1) the hearing before Judge Kurbin did not insulate the officers from liability, (2) there is a dispute over whether the Wrens consented to the search, and (3) viewed in the light most favorable to the Wrens, the evidence tended to show that Norris and Towe did not have probable cause to seize the truck.

Norris and Towe timely appealed, and the case now lies before this panel.

Jurisdiction and Standard of Review

Generally, this Court will only hear appeals from final orders, and thus, we usually would not hear an appeal from a denial of summary judgment. Naylor v. State of La. Dept. of Corrections, 123 F.3d 855, 857 (1997). However, where summary judgment is denied in a civil rights action on the question of a government officer's immunity from suit, exceptions to this general rule exists. The collateral order doctrine is such an exception, and permits an interlocutory appeal in circumstances such as these. Id.; see also Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Hale v. Townley, 45 F.3d 914, 918 (1995).

Our review of the matter is limited by the extent to which the district court's actions were based upon an issue of law. Johnson v. Jones, 515 U.S. 304, 312-314, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995) (no immediate appeal of orders based on sufficiency of evidence). However, the existence of disputed issues of material fact does not necessarily preclude review of the case. "Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for the purposes of summary judgment met the Harlow standard of 'objective legal reasonableness.' " Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996); see also Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Coleman v. Houston Indep. School Dist., 113 F.3d 528 (5th Cir.1997).

Many of the facts relating to the availability of qualified immunity are in dispute, but this alone does not prevent summary judgment. A district court's denial of summary judgment is not immune from interlocutory appeal simply because the denial rested on the fact that a dispute over material issues of fact exists. Behrens, 516 U.S. at ----, 116 S.Ct. at 842. To foreclose appeal, the disputed facts must be central to and not severable from the matter of qualified immunity. Id. In this case, we feel that we have jurisdiction based on the undisputed facts, even if we assume the resolution of disputed facts in the Wrens' favor. Our basis for this conclusion will be stated later.

The standard of review is as follows. We review a district court's denial of summary judgment de novo. Coleman, 113 F.3d at 533. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to summary judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the burden of showing that there is an absence of evidence to support the non-movant's case, and after a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Coleman, 113 F.3d at 533.

Analysis

First of all, Norris is a law enforcement officer, and is entitled to qualified immunity. While it is true that Norris is retired from the Louisiana State Police, he is also presently a member of the Dallas FBI Auto Theft Task Force, an instructor at the Arlington Regional Police Academy and the Texoma Regional Police Academy, a Special Texas Ranger, and a Deputy U.S. Marshal. We do not see any reason to doubt Norris' statements that he acted as a member of the Dallas FBI Auto Theft Task Force. Therefore, as a law enforcement officer, Norris can be entitled to immunity.

There exists a dispute between the parties regarding whether or not the Wrens consented to...