Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms

(citations omitted).6 in support of their motion to recuse con- arguments tained the same proofs and Younger B. Abstention presented in complaint their filed in feder- if to conclude that Even we were al court. did not di Rooker-Feldman doctrine reasons, For foregoing we AFFIRM. jurisdiction vest the district court of its when the motions to recuse were decided court, still affirm state we would

dismissal of the Plaintiffs’ claim on the theory, Younger

district court’s alternative Generally, Younger

abstention. ab doctrine

stention counsels federal court adjudicating

to abstain from a matter it in properly ongoing before deference to BARANSKI, Magua Keith B. In d/b/a proceedings. Wayne state Tindall v. dustries and Pars International Cor Court, County Friend poration, Plaintiffs-Appellants, (6th Cir.2001). purposes For of deter mining whether a district court should ab jurisdiction exercising stain from its on the FIFTEEN UNKNOWN AGENTS OF doctrine, Younger basis of the we consider ALCOHOL, THE BUREAU OF TO 1) underlying whether proceedings FIREARMS, AND BACCO Brian Dix judicial ongoing proceeding, constitute an on, Johnson, Douglas Michael R. R. 2) whether the im- proceedings implicate Dawson, James, Mark S. Karl L. Stan 3) interests, portant state whether kovic, Hoover, Defendants, William J. there adequate opportunity is America, United States proceedings state to raise a constitutional Defendant-Appellee. challenge. Id. The Plaintiffs do not even cite Yoimger any relating case to the No. 03-5582/5614. doctrine, argument let alone raise an con- Appeals, United States Court of testing Younger ab- Sixth Circuit. event, stention In upon doctrine. our review, own we conclude that all three Argued: Oct. 2004. factors were met. The motions for recusal Decided and Filed: March against justices the Defendant certainly judicial ongoing proceedings constituted filed; complaint

the time the federal interests,

important state such as when Michigan under what circumstances

Supreme justices Court should recuse

themselves, implicated; were and the

Plaintiffs had an adequate opportunity to challenge,

raise their constitutional as evi- lengthy

denced the fact that their brief party may attempt nearly 6. The concern that a Plaintiffs filed this federal claim five maintain her federal action as an insurance months after filed their motions recuse policy proceedings while her state court in state court. pending especially acute here where the FedAppx. also 75 See follow, Gardiner, we the district E. Fair- REVERSE Richard

ARGUED: Shafizadeh, Louisville, fax, holding regard court’s Saeid Virginia, Terry AFFIRM, Cush- Appellants. immunity part, M. and RE Kentucky, for Attorney, States ing, VERSE, Assistant United dis part, the district court’s Louisville, Kentucky, Appellee. for ON pursuant of Plaintiffs’ Bivens claims missal Gardiner, Fairfax, E. BRIEF: Richard Humphrey. Heck v. Louisville, Shafizadeh, Saeid

Virginia, Terry M. Cush- Kentucky, Appellants. I. Kuhn, Jr., Hill, E. John

ing, Candace G. Attorneys, Louis- States

Assistant United A. Facts Substantive ville, Kentucky, Appellee. a citizen of Plaintiff Keith Baranski is CLAY, COOK, KEITH, Before: Magua Indus- Ohio who does business as Judges. Circuit tries, ammuni- imports which firearms and Li- pursuant tion to a Federal Firearms OPINION Pars, by the ATF. Plaintiff cense issued Kentucky corporation, is a tenant of CLAY, Judge. Circuit multiple occupancy commercial structure Keith B. Baranski and Pars Plaintiffs Avenue, Cheyenne located at 509 Louis- (“Pars”) appeal Corporation International ville, Kentucky. ATF issued Pars has 14, 2003 order of the district the March import a Federal Firearms License to fire- that Defendants Fifteen Un holding court arms and ammunition. Pars is the custo- Alcohol, of the Bureau of Agents known Security High of a dian U.S. Customs (“ATF”) and Firearms and six Tobacco (“CBW”) located at Bonded Warehouse quali entitled to named ATF Cheyenne 509 Avenue. The U.S. Customs (1) immunity Plaintiffs suf fied because approved has the warehouse for Service by fered no Fourth Amendment violation storage by of firearms covered alleged particularity lack of virtue of the (“NFA”), Act the search warrant that Defendants used National Firearms U.S.C. to seize hundreds of firearms and accesso routinely § Pars receives merchan- ries owned Baranski and stored importers dise from various licensed of Pars; and the facts did not show that storage NFA firearms for its ware- a clearly Defendants violated established house, performs and Pars also customs right pursuant Harlow v. constitutional import- broker services on behalf other 818, 800, Fitzgerald, 457 U.S. various between October ers. On dates (1982). 2727, 73 L.Ed.2d 396 Plaintiffs 2000, the and December Customs Service that Plain appeal holding the court’s also lawfully into authorized Baranski to enter damages Bi pursuant tiffs’ action- for 421 fire- approximately the United States Agents Federal vens Six Unknown Bulgaria and arms and accessories from Narcotics, 388, Bureau storage Poland and store them Pars’s 1999, (1971), 29 L.Ed.2d 619 would S.Ct. facility. necessarily invalidity of Baran- imply 16, 2001, ATF January Agents On Brian criminal conviction to the im ski’s related Johnson, Dixon and Michael named defen- and, therefore, portation of firearms lawsuit, interrogated in this Baran- dants pursuant to Heck v. must be dismissed They relationship asked ski. about Humphrey, 512 (1994). Licensee, 129 L.Ed.2d For with another Federal Firearms the reasons Vic’s, Corporation, gation and then served Vic’s Gun Carmi was discovered with grand jury subpoena. him guns over 700 machine and firearms. suggested Seized documents relationship April Agent ap- Johnson On (Carmi between Carmi and Baranski. plied Magistrate Judge to U.S. Cleveland subsequently was indicted in the United Gambill of the Western District of Ken- States District Court for the Eastern Dis- for tucky a search seizure warrant Missouri.) trict of storage facility. Pars’s place search warrant described the to be explained Johnson’s affidavit further searched as follows: imported Baranski about 500 machine story

Pars tan col- ostensibly International —Two as dealer samples for sale building enforcement, ored concrete construction with to law which 18 U.S.C. 922(o) security narrow windows. Marked permits. By January Bar- A glass sign “509” above front door. anski had removed at least 49 firearms indicating facility that the is a “Customs from Pars’s Custom Bonded Warehouse posted Bonded on the Warehouse” after submitting letters purportedly from Cheyenne Avenue, door. Located at 509 Farber, Missouri, police request- chief Louisville, Kentucky. ing a demonstration of guns. the machine The affidavit recounted an interview description person property The of the or which Baranski told Johnson that Carmi stated, to be seized “See Attached Affida- agreed had to pay Baranski for the fire- vit.” As to the basis for the search and arms and that guns about 425 machine seizure, stated, application “See At- remained at Pars’s warehouse. The affi- tached Affidavit.” As to the support- facts davit Agent also recounted Johnson’s in- cause, ing finding probable appli- a Farber, Missouri, stated, terview with the police cation “SEE attached Affidavit.” chief explained who had that he had fraud- Agent The attached affidavit was that of ulently composed the letters with the ex- Johnson, who indicated that he has been remuneration, pectation of that he had employed years with the ATF for over 10 knowledge of compa- Baranski’s firearms participated and has in over 200 criminal ny, and that he had no intention of receiv- investigations. firearm Johnson averred ing machine gun a demonstration from that, after a six-month investigation, there Carmi, Baranski. Documents seized from probable cause to show that Plaintiff himself, and later Carmi that confirmed conspired Baranski with James Carmi and Carmi had acted as intercessor between import others to enforcement restrict- law police Baranski and the chief to obtain guns ed machine for resale to Carmi and police request fraudulent demonstration others, possibly in violation of 18 U.S.C. letters in order guns to remove machine 922(o); 5844; § § 26 U.S.C. and 26 U.S.C. from Pars’s warehouse. 5861(1). Agent Johnson stated that the guns machine being issue were stored at Agent Johnson’s affidavit concluded as Pars, Warehouse, a Customs Bonded locat- follows: Avenue, Louisville, Cheyenne ed at 509 probable I have cause to that a believe Kentucky. large number of law enforcement re- Carmi, previ- machineguns fraudulently

Johnson elaborated a stricted felon, ously convicted imported assumed a false into the United with the States identity operate federally order to intention of being further distributed licensed firearms business called Vic’s Gun and sold to others involved in the con- Corporation. Pursuant to an ATF I spiracy. probable investi- also have cause to Inspector Bonded Warehouse. Customs ques- the machine

believe that the Thompson indicated ware- at the James currently being stored are tion of the house was located the basement Bonded Custom’s International Pars Avenue, insisted building. Shafizadeh warehouse, Cheyenne descrip- was defective without Louisville, Kentucky. was to be seized and indicated tion of what April morning of Later in the agents to let acquiescence granted Agent Judge Gambill Magistrate voluntary. building was not enter a search warrant. application for Johnson’s to a se- agents directed the Shafizadeh application, de- like of the build- cured vault in the basement as fol- premises or scribed the as the Custom ing, which he identified lows: building. portion of the Bonded Warehouse story tan col- Pars International —Two the section identified Shafizadeh building with concrete construction ored imported and owned vault for firearms Marked security windows. narrow seized Baranski’s Baranski. Defendants A glass sign door. “509” above front con- and 12 wooden crates 372 firearms indicating facility that the is “Customs The ATF taining parts. firearm on the posted Bonded Warehouse” portion other inspect did not or search Avenue, Cheyenne at 509 door. Located warehouse, vault, building. or Louisville, Kentucky. July Baranski was indicted On that “there is now The warrant indicated jury sitting in the United grand person property, a certain concealed Eastern Dis- District Court for the States namely ... Attached Affidavit.” See charged Baranski was trict of Missouri. judge ordered the magistrate guns by conspiracy import machine supporting for the search warrant and the making knowingly applica- false entries on affidavit to be sealed. records, in violation of 26 tions and other 2001, April approximately On 5861(1). § The indictment further U.S.C. warrant, ATF the de- agents, armed with of the machine pled criminal forfeiture Cheyenne entrance into 509 Ave- manded subject conspira- guns that were the nue, storage facility is locat- where Pars’s 2461(c). count, cy pursuant to 28 U.S.C. agents greeted ed. The were Saeid' in entertaining pre-trial motions After Shafizadeh, managed facility. who proceeding, Baranski’s criminal the district to see the affidavit requested Shafizadeh in Baran- granted part in Missouri court warrant but that referenced the search motion in limine concerning the 372 ski’s (and Agent to it. ATF was not attached guns seized from Pars. The court machine defendant) Karl re- individual Stankovic held: part of the sponded that the affidavit was necessarily records, does not believe Agent sealed. The Court

court which were are relevant as guns that the machine allegedly Johnson stated that the warrant Moreover, 401. evidence under Rule two-story building was for the entire and by the any probative outweighed value is directed the unless Shafizadeh Finally, the danger prejudice. of unfair property, they would search Baranski’s guns machine display then of 372 building. the entire Shafizadeh Director, excessive. Therefore Frank courtroom seems asked Customs’ Port warrant, display of sever- will allow the Dupre, -Dupre and Court read that, in the courtroom guns al machine according stated to the and/or of same. place photographs to be searched was the Customs court, however, right denied mo- legal its to assert a interest in the Baranski’s suppress guns guns. tion to the machine and the machine 12 crates seized from Pars. The court held September On the U.S. Court that Baranski had not demonstrated that Appeals Eighth for the Circuit affirmed Agent Johnson’s affida- statements Baranski’s conviction and sentence. Unit af- vits were false how the statements Baranski, 03-1575, ed States No. the probable fected cause determination. (8th 2003). Sep.23, WL 22176185 Cir. The court also found that the facts court found that the district court had support proba- affidavit were sufficient to properly denied sup Baranski’s motion to conspiracy ble cause for a or that press “because there probable cause weapons imported seized were with an in- for issuance of regardless the warrant tent to sell to one of the co-conspirators. alleged (citing errors.” Id. at *1 Unit

A jury guilty charged found Baranski as Briscoe, (8th ed States v. 317 F.3d on the sole count of the indictment on Cir.2003)). The court further held that February November On warrant should not sup “[t]he have been 2003, the court to' sentenced Baranski 60 pressed for lack of particularity” because imprisonment months’ followed three “the warrant referred to a sealed affidavit years supervised release. The district weapons.” described the Id. (citing court also ordered the forfeiture of the 372 Cherna, United States v.

machine crates seized from (5th Cir.1999)). 412-14 The court added incorporated Pars and the forfeiture order that, assuming weapons should have into judgment Baranski’s of conviction. trial, suppressed been their admission was harmless error because the documents forfeiture, to the As the court found: testimony proved the government’s only “Not clearly did the evidence estab- case. Id. The court also affirmed the for lish that the seized weapons covered order, feiture finding that the evidence letters, by the fraudulent law enforcement supported finding the district court’s but the Government’s evidence at trial weapons were intended to be used clearly by at a preponder- established least commit or facilitate the commission of the defendant, ance of the evidence *2 charged (citing crime. Id. at 21 U.S.C. part of the conspiracy, selling intended on 853(a)(2)). § all the in weapons of the to his co- CBW Thus, conspirator, James Carmi.” the History B. Procedural court found that guns the and accessories 5, 2001, described in the indictment “property July were On Plaintiffs Baranski and in used or intended to be used a manner to Pars International complaint filed a in fed- facilitate the commission of the crime for against eral district court fifteen unknown ATF, agents which defendant was convicted.” The dis- named of the six named indi- trict court agents, ordered the United States to vidual ATF and the United States. First, publish Fourth, of the order and Invoking notice its intent to the and Fifth Constitution, dispose property in such a manner Amendments to the U.S. Secretary Treasury may as the of sought unsealing direct. Plaintiffs an order search; provided order right any per- suppress- to affidavit of the an order son, Baranski, evidence; than legal ing unlawfully other to assert a seized an in- property petition junction interest and for a compelling return seized firearms; hearing on his or her claim. compensatory punitive Counsel and and Pars received notice of damages. complaint alleged the forfeiture and that De- sup- viola motion unseal constitutional purported fendants’ porting in an econom affidavit of the search and seizure “placed [Baranski] tions had position in relation in Baranski’s criminal case. The ically disadvantaged directly benefit- are competitors briefing who court a schedule on Defen- set defendants, actions of the ting from the qualified immunity. dants’ assertion from [Baranski] [sic] and the absence of 14, 2003, March the court found that On “impaired plaintiffs’ had marketplace,” and im- Defendants were entitled legiti from to earn a lawful income ability (1) no munity because Plaintiffs suffered v. Citing Bivens Six Un mate activities.” violation virtue of Fourth Amendment Nar Federal Bureau Agents known alleged particularity lack of cotics, 403 U.S. warrant; and the facts did not search (1971), alleged Plaintiffs L.Ed.2d 619 clearly show that Defendants violated Fourth and Fifth their Defendants violated right per constitutional Harlow established the U.S. Consti rights Amendment under Fitzgerald, supra. The court also found law alleged also state tution. Plaintiffs in Plaintiffs’ Fifth Amendment basis tort, and defamation. trespass, claims for stemming gov- claim from the process due March the district court On guns ernment’s seizure of the machine States’ motion granted the United Last, related the court noted accessories. party the sole defendant to substituted as finding that a favor of Plaintiffs on their claims, pursuant law tort Plaintiffs state finding Bivens action would undermine the Act, to the Federal Tort Claims 28 U.S.C. judge in Baranski’s crim- magistrate 2679(d)(1), claims and to dismiss these proceeding inal that the ATF had against individual named defendants. good faith basis to believe that the warrant request Plaintiffs’ The court dismissed they though executed was valid even ammuni- of the seized firearms and return specificity. it lacked The court also ob- government ground tion on the served that the Bivens action would be proceed- already had initiated forfeiture judge’s “inconsistent with a federal deci- ings contesting and Plaintiffs’ being machine sion to forfeit these such, could not forfeiture. As Plaintiffs con- used the commission of federal or com- seek either return of spiracy crime.” As a collateral attack on separate federal pensation through for it court Baranski’s conviction and the various Plaintiffs’ action. The court also dismissed it, rulings that led to a Bivens action would state because had not ex- law claims Humphrey, supra. run afoul of Heck v. un- hausted their administrative remedies The court dismissed all of Plaintiffs’ claims der the Federal Tort Claims Act. The prejudice. court denied the motion to dismiss Plain- support-, tiffs claim to unseal the affidavit appeal Plaintiffs now the dismissal warrant, ing the search and seizure which premised alleged their Bivens claims on premised alleged on violations of the violations of the Fourth Amendment. Fourth Amendments. The court First and appealed Plaintiffs have not the district claims, stayed prem- also Plaintiffs Bivens court’s dismissal of their state law claims Amendments, ised on the Fourth and Fifth tort, trespass, and defamation or the agents and against the named unnamed of their Fifth Amendment court’s dismissal for three months. claims; Bivens we therefore deem 22, 2002, challenge to the district court’s dismissal On the court lifted November stay granted on the and Pars’s of these claims waived. case'

II. able cause violation of the Fourth 389-90, Amendment. Id. at The Fourth Amendment to the U.S. Supreme Court held that plaintiff protects Constitution people and their could damages from recover federal .the houses, papers, and effects from “unrea injuries for the they allegedly sonable searches pro and seizures” and inflicted on him in violation of the Fourth issue, vides that “no Warrants shall but 392-97, Amendment. Id. at 91 S.Ct. 1999. cause, upon probable supported by Oath or affirmation, particularly and describing the case, In the instant ATF Agent Johnson searched, place to be persons applied for a search warrant for Pars’s things to be seized.” U.S. CONST. storage facility and described the location amend. IV. Regarding the Fourth facility tan, as a two-story building Amendment’s particularity requirement, with a sign indicating that the facility is a this Court has “[gjeneral observed that “Customs Bonded Warehouse” and located warrants, by failing particular to describe Cheyenne Avenue, at 509 Louisville, Ken- seized, ly things to be create a danger tucky. Although application did not of unlimited discretion in executing property seized, describe the to be officer’s subject determination of what is affidavit, attached which a danger seizure and that items will be incorporated reference, referred to seized when the warrant refers to other about 425 machine at Pars’s Custom Savoca, items.” United States v. Bonded Warehouse. The which (6th Cir.1985) 292, 298-99 (citing Andresen the magistrate judge executed, similarly Maryland, 463, 480, 427 U.S. 96 S.Ct. described the location facility con- (1976)). 49 L.Ed.2d 627 “A particu taining the items to be seized. Like the lar warrant also assures the individual application, the warrant did not describe whose is searched or seized of seized, the items to be but referred to an the lawful authority of the executing offi attached affidavit. A copy of the attached cer, search, his need to and the limits of provided affidavit was not to Pars at the power Ramirez, to search.” Groh v. seizure; time of the search only 124 S.Ct. provided warrant was because the magis- (2004) (internal L.Ed.2d 1068 quotation judge trate had sealed the affidavit. omitted). marks and citations “The uni alleged Plaintiffs have Bivens claims formly applied rule a search con against ATF Agents, Defendant asserting pursuant ducted to a warrant that fails to upon which relied conform to the particularity requirement comport did not particularity with the re- of the Fourth Amendment is unconstitu quirement of the Fourth Amendment as to tional.” Massachusetts v. Sheppard, 468 (1) the items to be seized and place 988 n. to be searched. (1984) (citations omitted). L.Ed.2d 737 In Bivens v. Six Unknown Named A. Standard of Review Agents Narcotics, Federal Bureau supra, plaintiff complaint filed a This Court reviews de novo the against agents of the Federal Bureau of district ruling court’s that a search war alleging Narcotics that acting while rant under satisfied the Fourth Amendment’s the color of authority, federal particularity the requirement. United States a (6th conducted warrantless search of the v. Gahagan, his Cir. apartment 1989). and arrested him prob- without omitted). (citations The Id. documents.” Be Particularity Items the of

B. construing practice condoned the Court Seized conjunction supporting with a a warrant materially are not case in this The facts (1) “the affidavit, only if but application facts in Groh the from distinguishable of incor appropriate words warrant uses Groh, There, Jeff Ramirez, supra. docu supporting “the poration” to search a warrant agent, applied ATF at Id. accompanies the warrant.” ment large stock for a ranch Joseph Ramirez’s omitted). (citations 557-58, 124 S.Ct. 1284 rifles, grenades, unregistered automatic Court, however, to consider refused The launcher, launcher. rocket and a grenade a incorpo the warrant argument that Groh’s for a war application supported his Groh in the particular’s the rated forth that set affidavit a detailed rant with did not in warrant affidavit because “the the items were belief that basis for his the reference, corporate other documents judge signed magistrate A the ranch. on applica affidavit or the did either the nor ap reviewing the form warrant after the seal) (which under placed had tion been warrant, The and the affidavit. plication 558, 124 at Id. accompany the warrant.” however, regarding specific not was have in “did not 1284. Because Groh S.Ct. the contraband searched or place be de particularly a warrant possession 554, 124 1284. S.Ct. 540 U.S. at seized. be seize, things he intended scribing the to be property description The clearly search was with the proceeding only description a indicated seized Amend the Fourth ‘unreasonable’ under could be where location 563, 124 S.Ct. 1284. ment.” Id. incorporate not found, did and the warrant list contained the itemized that was by reference further held Groh The Court 554-55, 124 S.Ct. immunity Id. at con application. not entitled to agents searched the ATF 1284. When a on the defective ducting search based home, copy him a 563-64, left 124 S.Ct. Ramirez’s warrant. Id. at 1284. warrant, copy of the but not a requirement particularity the search “Given that Constitution, Id. at been sealed. application, which had forth in the text of the is set 555, 124 S.Ct. 1284. believe that no reasonable officer could comply not that did plainly warrant the warrant “was held that The Court (citing valid.” Id. requirement was 557, 124 1284. Id. S.Ct. invalid.” plainly 800, 818- Fitzgerald, Harlow v. to the Fourth warrant was deficient (1982)). 73 L.Ed.2d 396 requirement particularity Amendment’s cursory reading of the warrant “[E]ven description of provided it because just simple glance perhaps .. —would .— not Id. It did type sought. of evidence deficiency glaring have revealed all, but seized at items to describe would have police officer known reasonable the resi- description of only provided a constitutionally fatal.” Id. at was could be allegedly where the items dence And, prepared Groh because Id. found. warrant, argue not invalid he could fact that “[t]he further held Court magis reasonably relied on the that he described application adequately the warrant judge’s trate assurance not save 'things to be [did] seized’ and, therefore, sufficiently particular invalidity.” from its facial valid. Id. “The Fourth (emphasis original). it clear makes The Groh decision requires particu by its terms Amendment pro- Agent Johnson that the warrant that supporting larity in the ing cured for the search of Pars’s warehouse purpose that one particularity Groh, plainly requirement invalid. As the war- is to “assure[ ] individual rant was deficient as to the Fourth whose is searched or seized of particularity Amendment’s requirement the lawful authority of the executing offi cer, provided because it no description-of search, his need to and the limits of type sought. It power search”); evidence did not de- his v. Unit Whren cf. all, States, scribe the items to be seized at refer- ed ring only building to the where the items (“Subjective L.Ed.2d 89 Indeed, allegedly could be found. in Bar- intentions the law [of enforcement officer] prosecution, anski’s criminal govern- play in ordinary, no role probable-cause ment conceded that the warrant lacked Fourth analysis.”). follows, Amendment It particularity fortiori, as to the -items to be seized. that it was not sufficient for Agent Johnson to be aware of the limits on The fact that Agent applica Johnson’s his lawful authority under the warrant. tion and adequately affidavit described the particulars Those had to be communicated (i.e., things guns) to be seized 425 machine manager through Pars war change does not the result because “[t]he rant or an attachment to the warrant. It by Fourth requires Amendment its terms undisputed that they because, were not particularity in Groh, inas the affidavit that contained the supporting documents.” particulars accompany did not the warrant (citations omitted). Although S.Ct. 1284 at the time of the search and seizure. the warrant used appropriate words of in corporation, supporting documents light In decision, of the recent Groh we that the warrant purported incorporate do not find Defendants’ reliance on the accompany did not the warrant. Because Sixth Circuit’s decisions in United States Agent Johnson posses “did not have v. Gahagan, supra, Frisby v. United particularly sion a warrant describing the States, (6th Cir.1996) 79 F.3d 29 to be seize, things he intended proceeding dispositive of Plaintiffs’ underlying Fourth clearly the search was ‘unreasonable’ Groh, Amendment claim. Gahagan, like under the Fourth Amendment.” Id. at recognized that warrant that “[a] fails to 563, 124 S.Ct. 1284. describe the area to be searched with suffi-

Defendants counter that Groh does not particularity cient can be cured an ac- provide any guidance on the companying circumstances affidavit if the affidavit is at- under which an describing affidavit tached to the warrant and the warrant items to be can incorporates seized be considered to the affidavit reference.” (citations “accompanied” have the warrant. Gahagan, We dis- 865 F.2d at 1497 omit- ted). agree. Supreme case, explicitly Court held In undisputed this it is supporting affidavit accompa- Agent must Johnson’s supporting affidavit was ny the warrant And, and that the affidavit not attached to the warrant. al- served on accompany though Ramirez did not in Gahagan the Court found that placed because the court had it particularity requirement was satisfied affidavit, under seal. It was not Agent sufficient for based on an unattached Groh to subjectively par- aware of the case the affidavit was in one of the officer’s affidavit; ticulars contained in the readily those vehicles and therefore was accessi- particulars case, had to be communicated ble. Id. In this dispute there is no through affidavit, seal, the warrant to Ramirez. See which was under Groh, (not- S.Ct. 1284 was not at the scene of the search and Fourth Amend- therefore, not, held that gorically “[t]he and, it was seizure requires particularity by ment its terms been, readily accessible. not have could warrant, docu- supporting not the the because, distinguishable Gahagan also is Groh, 557, 124 S.Ct. 540 U.S. at ments.” that the warrant’s there, found the Court omitted). (citations also id. at See to be searched the location description of (holding that because 124 S.Ct. 1284 having stated complete,” than was “less invalid prepared the Agent ATF had the Howev- Id. at 1498. address the incorrect warrant, he rea- argue not he could targeted er, the undisputed it was magistrate judge’s sonably relied on the cabin) (a marking had no address property sufficiently that the warrant was assurance property the same on and was located valid). and, therefore, particular at 1493-94. Id. in the warrant. listed to this case. inapplicable Frisby also is warrant, Thus, the supporting the affidavit by Frisby, incorporated the warrant In property, identify targeted the which did A,” listed an “Attachment which reference risk ... that a was no showed that “there particularity. items to be seized with the premises was of another mistaken search search, of the F.3d at 31. At the time case, In this the Id. at 1498. possible.” “inadvertently” pro- failed the officers not at Pars was property warrant to seize Id.; Attachment A. see also copy vide a totally incom- it was complete”; “less than allega- “no (noting that there was id. at 32 an inaccu- simply not reflect plete. It did plaintiff with tion that the failure to serve seized; items to be description of the rate inten- Attachment A was either copy description whatsoever. it contained no deliberate”). Consequently, the or tional Gahagan, are unlike The facts of this case Amendment viola- found no Fourth Court affidavit could an unattached where case, by at In the instant tion. 32. war- description the explain used to contrast, intentionally re- Agent Johnson rant, for Baranski’s the warrant because supporting provide copy fused description provided all. property affidavit, particular which described the Gahagan an- Finally, to the extent seized, affidavit to be because the items by facts known nounced a rule that fundamentally, under seal. More magis- executing approving and the challenge validity officer of the Frisby did not stated judge, specifically probable trate but not to the cause warrant either as automatically specificity underlying or the warrant “or the affidavit warrant,1 places we hold to be searched facially with which cures defective enumerat- things [were] cate- be seized rejected such a rule. Groh Groh Pritchett, ("[W]e 40 Fed. seal. See United States id. at 1499 find that when one of 1. See 9, 2002) (6th (unpub executing Appx. July is the affiant who de officers Cir. judge, lished) and the scribes the to the (noting was not that the defendant prop judge probable to search the finds cause attach prejudiced the failure to receive affiant, and the erty described (a) warrant because before ment B with the confined to the areas which the search is agent began, told the the search the ATF search, described, then the in this affiant case, for; searching what would be defendant compliance amend is in with the fourth (b) in accordance the search was conducted decision, ment.”). unpublished this In an warrant; (c) provided the with the the officers Court, following Gahagan, held that items; receipt with a for the seized defendant was not violated when Fourth Amendment (d) executing charge the affiant was in only to "at the warrant for firearms referred search, thereby minimizing possibility description B” tachment under beyond scope going of the search seized and attachment B was items to be warrant). it was under served with the warrant because Thus, fail to agents. ed.” Id. we see how the Accordingly, although the case, Frisby any bearing in has this where warrant was defective on its face as to the very validity seized, the issue is the of the warrant items to be it sufficiently described regard specificity place the of the place the to be searched. to be things searched and the to be seized. reasons,

For these we hold that the war- Qualified Immunity D. rant which upon Defendants relied to 1. Standard of review search Pars’s warehouse and seize Baran- sM’s firearms and related accessories was This Court conducts a de novo re constitutionally defective. view of the district determination .court’s that ATF agents the qual entitled Particularity C. of the Place to Be ified immunity. City Stemler v. Flor Searched ence, (6th Cir.1997) (cit 126 F.3d 866 Norrod, warrant ing described the street 106 Barton F.3d 1293 (6th Cir.1997)). address and building color of the and re sign building ferred to a on the that stated

“Customs Bonded Warehouse.” Plaintiffs Analysis contend that the warrant was defective perform “[Government officials because its description building im ing discretionary generally functions are plied that building the entire was the ob shielded liability from damages for civil ject of the point search. Plaintiffs out that insofar as their conduct does not violate the occupy warehouse does not the entire clearly statutory established or constitu building, only the basement. rights tional of which a person reasonable

“The test for determining Harlow, whether would have known.” supra, 457 description the in the warrant is sufficient U.S. at 102 S.Ct. 2727. “It not is satisfy particularity requirement necessary the very that the action have been ... components: two previously [has] whether but, held given unlawful place law, to be searched is preexisting described' with the unlawfulness of the particularity sufficient as to enable the conduct must have apparent.” been Stem ler, executing officers to identify locate and 126 F.3d at 866. “In determining effort; premises with reasonable and whether an qualified official is entitled to (2) whether there is reasonable probability immunity, this court asks whether the law premises may some other clearly be mistak was established at the time enly Gahagan, Barton, searched.” alleged 865 F.2d at action.” (citing 106 (citation omitted). 1293). -Here, the de F.3d at A right “clearly federal scription of building assured that “any established” where posi official his executing officers could locate where the tion would have understood that he was Customs Bonded Warehouse was with duty under affirmative to refrain from Bowles, reasonable effort mistakenly and to avoid such conduct.” Doe v. (6th Cir.2001) (internal searching for the warehouse on some oth quotation omitted). premises. er There is no evidence in this marks and citations In deter anywhere case that mining searched whether officers should have unlawful, other than the Customs Bonded known their Ware actions were this portion building house that is iden primarily Court looks to decisions of the ’ Court, court, tified the warrant and to which Supreme this and other manager Stemler, of the Pars warehouse directed courts within our circuit. holding legal basis for mines the Gilley, 957 Cagle v. (citing at 866 F.3d Cir.1992)). reject (6th Defendants’’ this Court requires 1347, 1348 F.2d immunity because qualified assertion compels decision Groh The recent facially defective on such their reliance are the Defendants2 conclusion objectively reasonable. was not immunity for con entitled to Groh, n. at 565 See on the defective ducting a search based “good-faith” (noting that both re particularity “Given warrant. gen- Amendment’s exception to the Fourth in the text forth is set quirement concept the exclusionary rule eral Constitution, officer could no reasonable the same stan- immunity apply qualified did not plainly that a warrant that believe reasonableness) (citing objective dard of was valid.” requirement with that comply 335, 344, 106 Malley Briggs, 475 U.S. v. 563-64, 124 1284 Groh, S.Ct. at 540 U.S. (1986)). 1092, 271 89 L.Ed.2d We S.Ct. 818-19, 102 Harlow, at 457 (citing U.S. court’s hold- district therefore reverse the Groh, 2727). cursory “a even inAs S.Ct. quali- were entitled ing that Defendants ... have would the warrant reading of immunity. fied deficiency that rea a glaring revealed have known would police officer notes, prior sonable correctly de- As the dissent 564, 124 Id. at constitutionally fatal.” was practice the condoned cisions of this Court Moreover, Agent because 1284. facially warrants that serving defective warrant, he invalid the prepared identify- Johnson affidavits cross-reference sealed reasonably on relied that he argue cannot particulari- be seized with ing the items to that the assurance judge’s magistrate the See, at and cases cited ty. e.g., discussion and, sufficiently particular warrant was 1, significant, find it how- supra. note We therefore, Id. valid. ever, Supreme in the Court Groh immunity agent for an qualified denied out that the correctly point

Defendants the described items specifically who had case Baranski’s criminal in district court for a Circuit) in a be seized sealed (as held Eighth affirmed the but not magistrate, to a warrant submitted applied to exception3 “good-faith” itself, ground that on the in the warrant executing the warrant. actions their only the Groh, however, executing the search under- decision rule, exclusionary exception separate faith” advanced 2. Defendants have not indi- of evidence ob immunity arguments permits for each the admission qualified which reasonable, Accordingly, we have good-faith objectively Defendant. vidual tained in purposes collectively for of this treated them subsequently search invalidated reliance on analysis. 20, 922, Leon, U.S. at 919 n. warrant. 468 24, 3405; 923 n. also id. at 104 104 S.Ct. see contains Although Amendment the Fourth 3. ("[O]ur inquiry con good-faith S.Ct. 3405 precluding the use of provision expressly question objectively ascertainable fined to the on an invalid in reliance evidence obtained reasonably trained well officer whether 897, Leon, v. United States illegal that the search would have known (1984), L.Ed.2d 677 rule, 104 S.Ct. authorization.”). despite magistrate’s evidence exclusionary such under the where, apply exception good-faith would proceeding criminal used in a "cannot be facially example, is "so defi a warrant illegal search and against the victim the i.e., place particularize failing Calandra, cient — U.S. seizure.’’ United States things to be seized—that to be searched or the 38 L.Ed.2d 561 94 S.Ct. reasonably pre executing cannot officers (citations omitted). exclusionary Because sume it to be valid.” enforcement offi rule is directed toward law cers, "good- Supreme has created Court Circuit, clearly cluding law as in hand violated established the Ninth that have ap forth in both the text of the Constitu plied particularity set requirements of the Supreme decisions of the prior tion and pragmatically, Warrant Clause with regard Groh, 563-65, Court. See purposes”). to their Accordingly, notwith (noting that search agent’s S.Ct. 1284 standing precedent from this Circuit that facially premised on a defective warrant arguably justified Defendants’ actions at plainly comply did not with the Fourth time, we hold that Groh mandates a particularity requirement, Amendment’s qualified immunity. denial of justified by any and the search was not exceptions Supreme Court had III. searches). In crafted warrantless so In Humphrey, Heck v. supra, the Su- holding, Supreme rejected Court preme Court held that actions under 42 agent’s argument, echoed the United actions, civil U.S.C. like tort are brief, immuni States’ amicus not appropriate vehicles for challenging ty “at appropriate because the time validity outstanding criminal judg- acted, petitioner controlling decision 486, ments. 512 U.S. at 114 S.Ct. 2364. by any any and indeed no decision court Thus, prisoner when a state seeks dam- country in where had ruled that his suit, § in ages 1983 the district court actions unlawful.” Petition for must consider judgment whether a in Writ Certiorari to the Ninth Circuit favor of the plaintiff necessarily would 8, at RA Appeals Court GROH v. imply invalidity of his conviction or (Nov. 2002) (avail MIREZ, 22, No. 02-811 sentence; would, if it complaint must 32101201) (emphasis able 2002 WL in be plaintiff dismissed unless the can original); Reply see also Peti Brief for demonstrate the conviction or sen- 16, Ramirez, tioner at Groh v. No. 02-811 already tence has been invalidated. But 2003) (available 29, (Aug. at 2003 WL if the district court determines that the 22068574) (arguing denial of action, plaintiffs successful, if even will that, immunity would mean at the time of invalidity not demonstrate the search, agent “prefig should have outstanding judgment against criminal ure[d] a warrant which refers to the plaintiff, the action should be al- underlying provided affidavit information proceed, lowed to in [footnote omitted] magistrate supplemented to the cannot be the absence of some other bar to the documentation, by reference to that still an suit, [footnote omitted] hotly among

issue that is controverted 487, (emphasis Id. at 114 S.Ct. 2364 in courts”); circuit the United Brief for dictum, original). Supreme In Court Supporting States as Amicus Curiae Peti explained holding: the limitation of its 24-25, Ramirez, tioner at Groh v. No. 02- 2003) (available damages suit for attributable to an 21, [A] (May 811 at 2003 WL 21209371) allegedly may unreasonable search lie (arguing agent was entitled challenged if produced even search qualified immunity because the rule that in evidence that was introduced a state an affidavit must be both attached to the § resulting criminal trial 1983 incorporated by warrant and reference plaintiffs still-outstanding conviction. supplement order to the text of the war rejected independent rant “has Because of doctrines like been most other discovery, circuits and source and inevitable see its strict is incon States, 533, Murray in principle sistent with numerous cases of v. United in appeals, this Court and the courts of 108 101 L.Ed.2d S.Ct. 434 alleg- to an damages suit for attributable harmless er (1988), especially

472 if Fulminante, may lie even edly 499 unreasonable search ror, v. Arizona see produced evidence 279, 307-308, challenged 1263- search (1991), criminal such introduced in state L.Ed.2d 302 that was 113 successful, § action, plaintiffs if in the 1983 resulting would trial § even [bjecause ... plaintiffs that the necessarily imply still-outstanding conviction error[.]”) ... harmless conviction was unlawful. of doctrines like omitted). (citations (emphasis n. S.Ct. 2364 original). analysis here, does not end applies bar of Heck litigation however, dis requires Heck also because rights action to a civil equal force necessarily that would missal of a lawsuit Bivens. Robinson brought pursuant to invalidity of Baranski’s sentence imply the (6th Cir.1998). Jones, 906-07 judgment” criminal “any outstanding novo standard of applies a de This Court Heck, 487, 114 him. 512 U.S. at against determination to the district court’s review court entered 2364. The district Bivens claims are barred that Plaintiffs’ pursuant to the of criminal forfeiture order Humphrey. Id. at 906. Heck v. set forth at U.S.C. procedures and accessories finding after that the judgment in this hypothetical A described the indictment were the search of Pars’s ware litigation that in a manner to intended to used used or ma the seizure of Baranski’s house and for the commission of the crime facilitate would not unconstitutional guns chine 26 was convicted. See which defendant invalidity the of Bar- “necessarily imply” 5872(a) “[a]ny § (providing that U.S.C. for conspiracy criminal conviction anski’s of the involved in violation firearm guns. machine The illegally import subject chapter of this shall be provisions in case court Baranski’s criminal district forfeiture”); 28 U.S.C. to seizure suppress motion to the ma denied the 2461(c) § forfeiture (providing where that it did “not guns, chine but indicated is authorized statute but no property machine necessarily believe” that the made for specific statutory provision is guns even relevant to the case. On were conviction, the upon criminal forfeiture held that appeal, Eighth “[t]he the Circuit ,the government may include forfeiture suppressed warrant should not have been conviction, upon “the the indictment and particularity” for lack of because prop- order the forfeiture of the to a sealed affidavit court shall referred Baranski, set erty procedures in accordance with the weapons,” 2003 described 853); § § 21 22176185, in 21 853 (citing at *1 States forth U.S.C. U.S.C. WL United (5th Cherna, court, “in imposing that the sen- (providing F.3d 412-14 Cir. 184 tence,” as 1999)), if order criminal forfeiture weap added that even shall but alia, to, or intended to inter used suppressed, ons should have been their crime). of a facilitate the commission admission was harmless error because affirmed the forfeiture or- testimony proved gov Eighth Circuit documents and der, holding supported evidence Consequently, ernment’s case. finding weap- court’s that the in this case that the search and the district judgment ons intended to be used to commit was unconstitutional would not seizure charged of the invalidity of Baran- facilitate the commission necessarily imply the Baranski, Heck, 2003 WL at 512 crime. ski’s conviction. Cf. 853(a)(2)). § (citing *2 21 (opining n. 2364 that “a U.S.C. “[fjorfeiture weapons, is an element of economic whether Because value conviction,” following of their imposed appraised the sentence measured terms value States, 38- at the Libretti v. United time of unlawful seizure or the 356, 133 L.Ed.2d 271 potential value Baranski could have re- been, omitted) (interpreting (emphasis weapons U.S.C. ceived for the had he able to n 853(a)),4 impugn part Baranski seeks to open sell them market at on some by obtaining of his criminal sentence An' damages time. award of such future injunction compelling the return seized directly would contravene the forfeiture firearms, order, direct contravention premised assump- which is on the Accordingly, Heck forfeiture order. bars tion longer, proper that Baranski no has to, claim the extent he Baranski’s Bivens title therefore no eco- continuing guns. in, of the forfeited machine seeks return weapons. nomic interest those logic applies same to Baranski’s claim for just more than return of Baranski seeks damages premised on loss of use of the weapons. complaint requests His weapons. Because the forfeiture order de- fact that damages resulting from the longer termined that owns the Baranski weapons seizure of government’s weapons, damages he cannot seek for loss placed economically him “in an disadvan- weapons of use of running those without competi- taged position relation to his afoul of Heck. directly benefitting who are from the tors defendants, actions of the and the absence request damages Baranski’s for his marketplace.” from the [Baranski] injured reputation anguish, and mental ¶ (J.A. 73)); see also id. (Complaint request punitive damages, well as his (“The taking Baranski’s machine [of entirely. are different matters An award Amendment], in violation of the Fourth damages necessarily of such would not im plaintiffs’ ability ... to earn impaired has ply invalidity of the criminal forfeiture legitimate a lawful income from activities government order. The knew about the for which have been licensed and and location of the forfeited existence by authorized the United States Trea- unlawful weapons prior to their seizure ¶ 5) at sury.”); (prayer id. at 35 for relief from Pars’s warehouse because Baranski $186,100). of (seeking general damages Agent had ATF Johnson about them told for, compensatory damages He also seeks during an' interview. Defendants could alia, reputation of and impairment inter an forfeit sought have and obtained order anguish, punitive mental as well as dam- (as as Baranski’s ing weapons those well at for relief at ages. (prayer See id. conviction) seizing weapons. without ¶ 7) compensatory damages for (seeking validity forfeiture Accordingly, the of the anguish, impairment reputation, mental legality dependent upon order is not opportunity lost business as result of weap government’s seizure of those actions, Defendants’ and loss of use of Plymouth ons. One 1958 Sedan Cf. ¶ 9) property); (prayer id. for relief at Pennsylvania, 380 U.S. Commonwealth of (seeking punitive damages for constitution- 693, 699-703, 1246, 14L.Ed.2d 170 violations). al (1965) (reversing forfeiting order automo liquor untaxed transport claim to bile used to Heck bars Baranski’s Bivens law, car violation of state because search of damages the extent he seeks for the lost 32:2(b)(3) ("At part in the 4. See also FED. R. CRIM. P. of the sentence and be included sentencing.. .the order of forfeiture becomes judgment.”). defendant and must be made a final as to the indicating type what Appendix the Fourth Amend Joint violated potentially information, any, sup if Pars submitted to not an state could establish ment and the appealed could port its claim. Pars have using car without evi illegal use of the pro decision in the forfeiture adverse allegedly uncon resulting from the dence and from Baran- ceedings, separate apart search). judg that a It follows stitutional his criminal conviction right appeal ski’s that Defendants’ seizure in this case ment E.g., States v. Har sentence. United Baranski’s Fourth weapons violated (6th ris, Cir.2001); see necessarily not rights Amendment would 32.2(c)(4) (“An P. also FED. R. CRIM. validity of the forfeiture order. imply the ancillary not of sentenc proceeding part arises, Further, long as problem no Heck ing.”). is no indication in the record There recovering dam as Baranski is limited appeal, that Pars ever took such an and as only injuries for that would other ages tell, best as we can the forfeiture order lawful forfeiture have arisen from the wise final, giving became the United States he cannot seek weapons. Although of his to Baranski’s FED. clear title firearms. weapons replacement value of 32.2(c)(2); R. P. CRIM. 28 U.S.C. dispossession of the profits lost due to his 853(n)(7). Thus, claim for return Pars’s im damages he can seek weapons, weapons by operation is foreclosed anguish mental paired reputation and statute, of the forfeiture and Pars cannot damages attributable to punitive well as bring now a collateral cause of action to Defendants effected the means which again lay claim on Baranski’s firearms. An award of dam the search and seizure. Pars’s Bivens claim is not limited to a ages injuries for these would not necessar request for the return of the machine ily imply invalidity of the forfeiture guns. complaint Pars’s also seeks com- order, entirely in validity of which is pensatory punitive damages directly dependent of the method of the search and government’s related to the seizure of seizure. weapons. (Complaint those See J.A. at Although Defendants also raise ¶ 73) (“The taking [of Baranski’s machine to Pars’s opposition the Heck bar Bi guns in violation of the Fourth Amend- claim, vens we not resort to Heck to need ment], ... impaired plaintiffs’ ability has the extent Pars seeks the return of the legitimate to earn a lawful income from (Com J.A. 35 guns. forfeited machine See activities for which have been licensed ¶ 3) (requesting plaint, prayer for relief at and authorized the United Trea- States ma compelling an order the return ¶ 5) sury.”); (prayer id. 35 relief warehouse). chine to Pars’s Pars $186,100); damages (seeking general of id. proceedings was notified of the forfeiture ¶ 7) for at (prayer (seeking 35 relief case, in criminal and therefore Baranski’s compensatory damages impairment for of Pars, opportunity a had the party, third reputation, opportunity lost business as a legal to a interest in Baranski’s assert actions, result of Defendants’ and loss of petition firearms the district court for property); (prayer use of id. at 35 for ¶ adjudicate validity 9) hearing a to of its (seeking punitive damages relief at for violations). See FED. R. CRIM. P. asserted interest. Apart constitutional from 853(n)(2). 32.2(c)(1); § 21 U.S.C. The dis ownership Pars’s interest in Bar- asserted firearms, trict Pars had court below noted that filed allegedly anski’s Pars had con- ownership a claim in forfei weap- of Baranski’s tractual connected to those interests ture in of proceedings expected compensation the Eastern District ons as a bailee who Missouri, in in Pars storing but there is no information them its warehouse.

437 ed). being expressed particular in free The Court con- allegedly had an interest also intrusions governmental affording from unlawful cern over criminal defendants proceed- Forfeiture property. onto their collaterally opportunity another to attack however, designed compen- to ings, are 484-85, their criminal- convictions. Id. at injuries types to these sate claimants for (“This 114 long S.Ct. 2364 Court has ex- proceedings forfeiture con- interests. The pressed finality ... concerns for and con- criminal case could nected with Baranski’s sistency, generally and has to ex- declined only disposition of Bar- proper address attack[.]”) pand opportunities for collateral 5872(a). § 26 anski’s firearms. See U.S.C. (citations omitted). Pars, however, is not to permitted Pars would not have been prisoner prisoner, or a former and a proceedings any in rea- intervene those litigation successful would not demonstrate than stake a claim to those son other to invalidity any outstanding criminal 853(k)(l) § 21 (pro- firearms. See U.S.C. Thus, judgment against Pars. in nothing party claiming that “no an interest viding contemplates extending Heck the bar ... subject in to forfeiture under against damages civil par- actions to third appeal in a trial of a may... intervene Pars, prior judg- ties like whose criminal involving criminal case the forfeiture of ments are not at issue. property,” legal such other than to assert a Moreover, extending to Heck Pars would property subject in the to forfei-

interest above, fundamentally unfair. As held ture). in Defendants searched Pars’s warehouse Heck neverthe- question is whether facially reliance on defective search war- compen- claim for less bars Pars’s Bivens rant, objectively and their reliance was not in- satory punitive damages. Heck Yet, barring pur- reasonable. Pars’s claim § under 42 volved an action U.S.C. suant to Heck leave Pars with would effec- against county prosecutors' po- and state tively remedy for the unconstitutional seeking damages for their investigator, lice constitutionality Although intrusion. conduct that allegedly unconstitutional led of the search was addressed courts Heck, plaintiffs to conviction. in crimi- Eighth Circuit Baranski’s 114 S.Ct. 2364. The Court case, opportunity par- nal had no Pars prisoner held that “when a state seeks ticipate in the resolution of that issue.5 suit, damages the district court any statutory provision are unaware of We judgment must consider whether a favor right that would have afforded Pars the necessarily imply would plaintiff criminal trial intervene Baranski’s invalidity of or sentence^]” his conviction join suppression order motion. (emphasis add- Id. at permitted Even if Pars had been to inter- ed). that “if the The Court added district vene, damages its constitutional claims for action, plaintiffs court determines that the agents ATF could against successful, individual. if will not demonstrate the even adjudicated in that forum not have been judg- criminal invalidity outstanding parties because the were not against plaintiff, ment the action (em- proceeding. also Baranski’s criminal We proceed[.]” should be allowed to try- phasis emphasis question efficacy propriety omitted and another add- Indeed, attorney Conceivably, had failed to prejudice to Pars would be Baranski’s if seizure, criminal coun- even more severe if Baranski’s contest the search and the Fourth ineffective, by failing sel had been such as to litigat- would not have been Amendment issue concerning arguments advance colorable ed at all. constitutionality of the search and seizure. simultaneously with found to acted law- ing previously a criminal action have note, however, reasons, fully. would that at We damages. for For these an action Eighth time the its deci- Circuit rendered that Heck does not bar Pars’s we hold Baranski, in it sion did not have bene- damages against Defen- Bivens claims for fit Supreme of the Court’s Groh decision. dants. event, any holding In this Court’s in the matter, ability purely factual Pars’s As preferable instant case is to the alternative un- damages flowing from the to recover leaving individuals and owners weapons may be lawful seizure patently who have suffered a unconstitu- greatly weapons circumscribed. The have any remedy. tional intrusion without We government, and that been forfeited to the damages, hold that an action for therefore judgment criminal is unassailable. There- above, as circumscribed would not neces- fore, damages to the extent Pars seeks for sarily invalidity any demonstrate the weapons storage loss of use of the or lost and, criminal judgment consequently, is seizure, to their unlawful costs attributable not barred Heck. recovery temporally Pars’s limited (lawful) forfeiture of those inevitable IV. weapons. compensato- Pars also can seek reasons, foregoing For all the we RE- injuries ry alleged repu- to its damages VERSE the district court dismissal of injury tation and other financial that im- Plaintiffs’ Bivens claims on seizure, long flowed from the unlawful munity AFFIRM grounds; the dismissal injuries distinguished as the can be from of Plaintiffs’ Bivens claims to the extent inevitably harm it would have suffered due (a) they seek return of the firearms lawful subsequent, forfeiture of Bar- were forfeited after Baranski’s criminal Baranski, Like weapons. anski’s Pars (b) damages conviction or attributable may punitive damages against also seek inevitable, lawful forfeiture of those they for the manner in which Defendants firearms; and REVERSE the order of executed the search and seizure. Given respect dismissal with to Plaintiffs’ claims record, express the state of the we compensatory damages that arose from opinion as to whether Pars or Baranski seizure, Defendants’ unlawful search and ultimately will be able to marshal sufficient but were not otherwise an inevitable compensable injury evidence to prove subsequent result of the forfeiture. We a genuine even to create issue of material also REVERSE the dismissal of Plaintiffs’ compensable inju- fact that suffered a punitive damages. claims for ry. They may only be entitled to an award COOK, Judge, part damages concurring of nominal for their constitutional Circuit dissenting part. injuries. Those are issues best left to the district court on remand. I agree Because with the district court qualified immunity supports dismissal

Finally, acknowledge we that our hold- claims, plaintiffs’ of all I respectfully dis- ing today on the Fourth Amendment issue portions majority’s sent from those appears to at odds with Eighth opinion that reverse the district court. holding opera- Circuit’s on same set of proceed tive facts. Should Plaintiffs majority if Even is correct its (in prevail, trial and Defendants their indi- conclusion that the warehouse search vio- capacities) vidual would be found have light lated Fourth Amendment Amendment, Ramirez, Fourth flouted the even Groh v. I nevertheless maintain (in though they capacities) their official precedent sanctioning Sixth-Circuit

439 it here to a district court erred when denied an agents entitles the similar searches immunity. immunity. qualified officer The court ex- qualified plained: Groh, neither described In the warrant Thus, “clearly while it was established” seized, nor cross-refer-

the items to be particular, that warrants must be a that described those enced document appropriate ques- narrower and more 551, 554-55, 124 S.Ct. items. 540 U.S. (2004). tion, Thus, clearly whether it was 1284, ie. estab- L.Ed.2d 1068 157 right lished that one has a constitutional had no basis to believe the warrant agents pursuant valid. to be free from search to a warrant upon based sealed list Here, contrast, agents performed seized, to has not items heretofore a warrant cross-refer their search under answered, been at least in those terms. encing practice affidavit—a this sealed 221 previously Pennsylvania, has deemed reasonable. Bartholomew v. F.3d court Pritchett, (3d 425, Cir.2000). Appx. v. 40 Fed. United States 429 (6th 901, Cir.2002); Frisby see also 907 v. The Fifth Circuit reached the same con (6th States, 29, 32 Cir. United affirming clusion in the context of the deni 1996) (“The Fourth Amendment does not al of a In suppress. motion United necessarily require government Cherna, States v. the court held that be warrant, serve a or an attachment entirely it “not cir cause was clear from thereto, prior initiating a search or seiz precedent cuit that the must be affidavit ing property.”); Gahagan, States v. United physically attached to the warrant or (“[I]f (6th Cir.1989) F.2d 1497 defendant,” served on the the officers who in the warrant description contained .“reasonably executed the warrant could inadequate, appropriate ‘it is itself is rely magistrate judge’s on the issuance of description appearing to the look though he simultaneous even it or affidavit is clear if ly the affidavit on which it was sealed posi in a executing that the officers were (5th based.” 184 F.3d 412-13 Cir. ....’”) the document tion be aided 1999).1 LaFave, and Seizure (quoting W. Search immunity is even case 4.5(a) (2d ed.1987)). Even if Groh at 209 stronger here than Bartholomew result, Pritchett’s the fact casts doubt on opinion in because this court’s Chema panel unanimous of this court that a exe- explicitly approved Pritchett search that result establishes that reached a warrant that cross-refer- cuted under ATF actions here did not violate agents’ affidavit. I would therefore enced a sealed “clearly statutory or constitu established dismissing court’s order affirm the district person rights tional of which a reasonable complaints. plaintiffs’ Fitzger Harlow v. would have known.” ald, 800, 818, 102 S.Ct. (1982).

L.Ed.2d 396 question with the now be-

When faced court, held that

fore this the Third Circuit immunity qualified- accorded Although application of defines the Chema involved the ” Groh, exception exclusionary good-faith to the U.S. at 565 n. officer.’ rule, holding case its is relevant to civil Malley Briggs, 475 U.S. (quoting S.Ct. 1284 " standard presented here because ‘the same 89 L.Ed.2d 271 objective appl[y] we reasonableness that (1986)). hearing suppression the context of a Leon

Case Details

Case Name: Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 14, 2005

Citation: 401 F.3d 419

Docket Number: 03-5582/5614

Court Abbreviation: 6th Cir.