Newcomb v. IngleNewcomb v. Ingle
- Reporters:
- , ,
- Before:
- Anderson
Plaintiff Brent Newcomb appeals from an order of the district court granting de*1535fendants’. motions for summary judgment.1
Defendant Jean A. Mackey, with the help of her father, defendant Hоward Q. Day, intercepted and recorded telephone conversations of her minor son Brent, within her own home without Brent’s knowledge or consent. Brent’s parents were divorced at the time, and Mackey had custody of Brent and his younger brother.
In one instance, Mackey recordеd a conversation in which Brent’s father, Harold Newcomb (Newcomb), instructed Brent and his brother as they set fire to their home. Thereafter, Mackey told a fire investigator of the existence of the tapes. After the tapes were recovered, Mackey sent them to defendant Nаncy Ingle, an assistant county attorney. Based on the recorded conversation, Ingle brought criminal charges against Newcomb resulting in a conviction. In juvenile court, Newcomb stipulated to the severance of his parental rights. All charges against Brent were dismissed after Newcomb аnd Mackey stipulated to the designation of Brent and his brother as children in need of care.
Upon reaching majority, Brent brought this suit alleging violations of
Defendants filed motions for summary judgment which the district cоurt granted. The court held that Brent had failed to prove any causal connection between the recordings and his alleged injury: “What hapрened to you was brought about because of the actions that you and your brother took, that was the source of your problem or any dаmage that occurred to you, not the fact that your mother recorded those conversations.” Rec.Supp. Vol. I at 38. The court found “thаt reasonable men and women could not differ, that there is totally lacking the willfulness of intentional wrongdoing or reckless disregard of known legal duty thаt is a requisite to the willfully component of Section 2511 of Title 18.” Id. at 40. The court held that Ingle had acted at all times within the confines of her official duties and did not in any way act in a malicious manner. Therefore, Ingle was entitled to qualified immunity.
The issue here is whether Title III of the Omnibus Crime Control and Safе Streets Act of 1968,
No cases address the situation we have here. The сlosest analogy is where spouses have tapped one another,3 but that is still qualitatively different from a custodial *1536parent tapping a minor child’s conversations within the family home.
We hold that the interception at issue here is not reached by Title III. The interception of a family member’s telephone conversations by use of an extension phone in the family home is arguably permitted by a broad reading of the exemption contained in
Brent’s allegations against Ingle under
Likewise, no action under
[I]n order to hold a private individual liable under§ 1983 , it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual’s conduct is in some other way chargeable tо the State.
Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.1987). No such showing has been made here. Mackey and Day’s action in installing the wiretap and Mackey’s actions in recording the conversations were taken without the knowledge or aide of any state actor.
Brent alleged violations of the first, fourth, fifth, and sixth amendments. Construing Brent’s сomplaint liberally, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), Brent has failed to state a claim regarding any alleged constitutional violations under the facts presented.
The judgment оf the United States District Court for the Northern District of Oklahoma is AFFIRMED.
Notes
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See
. The statute has since been amended to substitute the word “intentionally” for the word “willfully.” We proceed under the statute as in effect at the time of the alleged violation.
.The circuits are split on this issue. Compare Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); with Kempf v. Kempf 868 F.2d 970 (8th Cir.1989); Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984); United States v. Jones, 542 F.2d 661 (6th Cir.1976).
.
“electronic, mechanical, or other device” means any device or apparatus which can bе used to intercept a wire, oral, or electronic communication other than—
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication sеrvice in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connectiоn to the facilities of such service and used in the ordinary course of its business; ....
. While comments made during the legislative process are not in any sense controlling, nevertheless our holding above is reflective of what appears to be the general understanding of those involved in the lеgislative process regarding the scope of the statute in situations such as that present here. See, e.g., Anonymous, 558 F.2d at 679 (quoting from the Hearings on the Anti-Crime Program Befоre Subcomm. No. 5 of the House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967): “I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem.” Comment by Professor Herman Schwartz testifying for the A.C.L.U.).