Michael W. SHOWERS; Ann G. Showers, v. Steven A. SPANGLER; Larry Haynes; Greg Houghton; Tim Smith; Howie Kessel; Ron Clouser; James R. Beard; J.R. Fagan; David Sloan; Peter S. Duncan, all in their individual capacity.
No. 98-7122.
United States Court of Appeals, Third Circuit.
June 29, 1999
182 F.3d 165
BRIGHT, Circuit Judge.
Argued Feb. 18, 1999.
II. DISCUSSION
For substantially the reasons stated by the district court, we hereby affirm the district court‘s opinion. See Coastal Power Int‘l, Ltd. v. Transcontinental Capital Corp., 10 F.Supp.2d 345 (S.D.N.Y.1998).
Regarding attorneys’ fees1, the Court observes it is particularly important under New York law, which governs this diversity action, that in contracts of this magnitude the language of the agreement be “unmistakably clear” regarding whether the parties to the agreement intend provisions of attorneys’ fees to apply to disputes among themselves. See Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 492, 549 N.Y.S.2d 365, 548 N.E.2d 903, 905 (1989). Unless the intention to indemnify is “unmistakably clear” from the language of the agreement, the Court will not read into an agreement a legal duty the parties did not clearly intend. See Levine v. Shell Oil Co., 28 N.Y.2d 205, 211, 321 N.Y.S.2d 81, 269 N.E.2d 799, 801-02 (1971).
The purchase agreement at issue here does not clearly state the parties intended the loser in a suit for breach of the agreement to pay the winner‘s attorneys’ fees. The indemnity clause at issue here states in pertinent part:
each Party ... hereby agrees to ... indemnify ... each Person to whom a representation, warranty, covenant and agreement is made hereunder ... in respect of any and all Claims it shall incur or suffer, which arise, result from or relate to any breach of, or failure by an Indemnifying Party to perform, any of its representations, warranties, covenants or agreements contained in this Agreement....
This Court affirms the district court‘s rejection of Coastal‘s indemnity claim. See Coastal, 10 F.Supp.2d at 370-71.
III. CONCLUSION
The judgment of the district court is affirmed.
James R. Ronca (Argued), Schmidt & Ronca, Harrisburg, PA, for Appellants.
Howard G. Hopkirk (Argued), Harrisburg, PA, for Appellees.
Before: GREENBERG, LEWIS and BRIGHT,* Circuit Judges.
BRIGHT, Circuit Judge.
I.
Following a warrantless search of their home and business, Michael and Ann Showers brought this civil rights action against Wildlife Conservation Officer Steven Spangler and his co-defendants—all officers or officials of the Pennsylvania Game Commission. The District Court granted summary judgment in favor of the defendants after finding them entitled to qualified immunity. Because we conclude, however, that an objectively reasonable law enforcement officer in Spangler‘s position would know that searches such as the one made in this case may only be carried out under a properly executed warrant, summary judgment based on qualified immunity was improvidently granted in his favor. We therefore reverse the District Court‘s ruling as to Officer Spangler, although we affirm in all other respects.
II.
We review questions of qualified immunity and summary judgment de novo and consider the evidence presented to the District Court in a light most favorable to the non-moving party. See Assaf v. Fields, 178 F.3d 170, 173-174 (3d Cir. 1999). After review, the following facts appear from the developed record.
Michael Showers (“Showers“) is a licensed taxidermist. In the spring of 1992,
Taxidermists practice their trade under special permits issued by the Pennsylvania Game Commission (“Commission“). Language on the face of the permit requires strict compliance with all state and federal game laws, including
Each permit holder shall keep accurate records of all transactions carried out under authority of the permit issued and any other information required by the director. The records must be kept for a period of three years and shall be open to inspection by any officer of the commission during normal business hours and shall be basis of any reports required by the commission.
A corresponding regulation promulgated by the Commission requires that:
A holder of a permit shall keep a record of transactions on a form provided by the Commission in accordance with the instructions provided. The record, together with the premises, shall be open to inspection upon demand of an officer of the Commission.
Steven Spangler (“Spangler“), at the time of the events in question, was a Wildlife Conservation Officer (“WCO“). He was assigned by the Commission to enforce Pennsylvania‘s game laws, and he had primary jurisdiction for taxidermists in Adams County, including Arendtsville.
The relationship between Showers, Spangler, and the events giving rise to this case, appear to begin as far back as March 26, 1992. At that time, Spangler charged one of Showers‘s customers with taking a wild turkey out of season. As part of his investigation, Spangler questioned Showers and examined Bear Mountain‘s official records—including those related both to the allegedly illegal turkey as well as those related to other animals passing through Showers‘s shop. Showers informed Spangler that he understood the turkey to have been taken in-season and then frozen for future preparation.
Four days later, on March 30, 1992, Showers found that Officer Spangler had entered his business when Showers was not there, searched through materials, some in a nonpublic area of the shop, and examined Bear Mountain‘s log book. When confronted, Spangler indicated that he was entitled to inspect the business records “anytime he wanted to[,] with or without [Mr. Showers‘s] permission.” Affidavit of Michael Showers, App. at 137a.
As a result of this incident, Showers sent a letter of complaint to defendant Peter Duncan, the Commission‘s Executive Director, on May 8, 1992. In this letter, Showers alleged that Spangler was harassing him and conducting his duties in an unprofessional manner. See App. at 97a-99a. Although it is clear that Showers and Spangler also disagreed over fundamental interpretations of the game laws, this letter was clearly precipitated by Spangler‘s surreptitious entry into Showers‘s showroom and Spangler‘s subsequent examination of Showers‘s records in his absence. Id. at 97a-98a.
On August 14, 1992, Showers wrote a second letter of complaint, this time to Regional Director David Sloan. See App. at 100a-103a. This letter described the June 2 confrontation and indicated that Spangler was continuing to harass and threaten him.2
In response to the letter of August 14, a meeting was held between Showers, Spangler, and one of Spangler‘s superiors, defendant Ron Clouser. At that meeting, Mr. Clouser admitted the impropriety of Spangler‘s threats. He acknowledged that random searches were not the policy of the Commission and that Spangler had “personal problems” that were influencing his job performance. App. at 138a.
After seven months in which no contact apparently occurred between Showers and Spangler, Spangler and another WCO attended a local auction on March 26, 1993. There they found a “wolf-caribou mount”3 owned by Showers. Because the wolf is an endangered species, in order to buy, sell, or possess such a carcass, certain paperwork must be in order and, by Commission practice and policy, must include either a permit issued by the Commission or a CITES4 permit in lieu thereof.
On March 31, 1993, Spangler met with Showers to review Bear Mountain‘s records with respect to the wolf-caribou mount and other items sold at the auction. Showers showed Spangler his CITES permit, which authorized export of the wolf from Canada, as well as his purchase records for the wolf.
Determined to take enforcement action against Showers, despite the fact that his possession of the wolf appeared to be legal, Spangler contacted defendant James Beard, head of the Commission‘s Special Investigations Unit, in an attempt to initiate an undercover operation targeting Showers for criminal prosecution. Mr. Beard declined to start such a probe because, in his view, the evidence collected
Nevertheless, on April 12, 1993, Spangler obtained a search warrant for the Showers‘s premises and drew up an elaborate four-page plan for “Operation U-Haul.” Both steps were highly unusual. Search warrants were not a regular part of the inspection routine.5 Nor were detailed operation plans.6
On the morning of April 13, 1993, eight armed and uniformed Commission officers descended on the Showers‘s business and residence.7 Citing authority to conduct an administrative inspection under statute and regulation, neither Spangler nor any other officer produced, served, or mentioned the search warrant. At no time did Showers affirmatively consent to the search, nor was he advised by the officers of his right to refuse.
Despite Showers‘s complaints of illegality, the search proceeded. Officers questioned Showers about a variety of animals in his shop. Over a period of several hours, Spangler and the other officers searched the showroom, studio, and freezers located in the preparation areas of the business. An officer stayed with Showers during the entire period of the search. At one point, Officer Spangler became so hostile and belligerent toward Showers that other officers removed him from the shop in order to “calm him down.” Deposition of Michael Showers, Dist. Ct. Doc. 24, Vol. I at 89.
After completing the search of Bear Mountain‘s business premises, Spangler ordered Showers to show him the freezer located in the basement of the Showers‘s home. Id. at 107. Over Showers‘s protests that nothing business related was contained therein, Spangler searched the home‘s freezer and seized some personal, non-business items.
In the aftermath of the search, Spangler charged Showers with a number of criminal violations. All of these charges were subsequently withdrawn by the Commission after Spangler‘s superiors intervened.
In addition to the charges stemming from the raid itself, on May 19, 1993, Showers was served with a criminal complaint with respect to the wolf-caribou mount—the same mount for which Spangler had previously seen proof of legality. On the same day, Officer Spangler publicly “tagged” the mount at a sporting goods shop where it was being used as an advertisement for Bear Mountain Taxidermy.8
Showers brought suit within the applicable statute of limitations under
Nevertheless, the District Court granted the defendants, including Officer Spangler, qualified immunity from suit on the basis that the “pretext doctrine” was not “clearly established” at the time the search was conducted on April 13, 1993. See id. at 593.9
The defendants subsequently took an interlocutory appeal from the court‘s denial of summary judgment on the mount-related claims. We dismissed that appeal for lack of jurisdiction. The parties then returned to the District Court and stipulated to the voluntary dismissal of the mount-related claims which, following entry of the court‘s final order on February 18, 1998, permitted this timely appeal on the claims for which summary judgment had been previously granted.
III.
The only issue now before us is the propriety of the District Court‘s ruling which granted qualified immunity to Spangler, and his co-defendants. “[G]overnment officials performing discretionary functions generally are granted a qualified immunity and 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.‘” Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1699-1700, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)) (emphasis added).
When addressing qualified immunity claims, we proceed in two steps. See Sharrar v. Felsing, 128 F.3d 810, 826 (3rd Cir.1997). First, we must ask whether the conduct alleged by the plaintiff violated a clearly established principle of constitutional or statutory law. See Johnson v. Horn, 150 F.3d 276, 286 (3rd Cir.1998). If so, then we go on to ask whether the unlawfulness of the action would have been apparent to an objectively reasonable official. Id. Thus, an officer‘s subjective intent in carrying out the challenged action—whether malicious or benevolent—is immaterial to the resolution of questions
At the first step then, in order to determine that a legal right was clearly established at the time of the alleged violation, the right must be “defined at the appropriate level of specificity“, id. at 641, because, as the Supreme Court recently reaffirmed, “what ‘clearly established’ means ... depends largely upon the level of generality at which the relevant legal rule’ is to be established.” Wilson, 119 S.Ct. at 1699 (quoting Anderson, 483 U.S. at 639).
In this case, we believe the appropriate question is the objective inquiry of whether, on April 13, 1993, a reasonable officer would have known that his administrative powers were circumscribed by statute and constitutional requirements to the extent that he could not conduct a search for evidence of criminal wrongdoing without a warrant. We have no difficulty concluding that a reasonable officer would have so known.
The Fourth Amendment is designed to protect liberty, privacy, and possessory interests against arbitrary intrusion by the government. See Soldal v. Cook County, 506 U.S. 56, 62-63, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). It is therefore axiomatic that Fourth Amendment protections require law enforcement officers to procure and execute a warrant before conducting a search, subject only to a few well recognized exceptions. In this case, one of the well recognized exceptions to the warrant requirement—administrative inspections pursuant to regulatory regimes—may in fact be implicated if taxidermy is recognized as a highly regulated business.10
Even so, this exception for administrative searches is extremely limited. When the Supreme Court considered and upheld the legality of a warrantless administrative search of an auto salvage yard in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Court noted that there was “no reason to believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respondent‘s violation of the penal laws.” Id. at 717 n. 27. Such comment strongly implies that “pretext” on the part of those conducting an otherwise proper administrative search will render it unconstitutional. This conclusion is not novel for it has made its way into established hornbook law. See David Rudstein, et al., Criminal Constitutional Law ¶ 3.06[3][d] (1998).
Spangler correctly points out that the Court‘s footnote in Burger is not strictly part of its holding, and that this so-called “pretext doctrine” was not clearly established in 1993 because no court in the Third Circuit had previously considered or recognized it. Nevertheless, the Burger decision otherwise supports reversal.
Whatever the merits of permitting even limited searches pursuant to administrative regimes, the power to conduct them is not more extensive than the actual authority vested in the officers by the administrative regime itself.
In this instance, the text of the Inspection Statute, on which Spangler relies, makes three demands of taxidermy permittees: (1) they must “keep accurate records” and “other information” as required; (2) these records must be “kept for a period of three years“; and (3) these rec
The Inspection Regulation—upon which Spangler was also entitled to rely at the time of the search, despite its constitutional infirmities—is worded more broadly but is also ultimately tied to the records kept under the permit. The Inspection Regulation also requires permittees to “keep a record” of transactions, but states that “[t]he record, together with the premises, shall be open to inspection upon demand....” Thus, the Inspection Regulation seems to include an additional aspect relating to premises not provided by statute. But even broadly construed, such language is insufficient to grant officers of the Commission the type of sweeping search power Spangler claims. At best the Inspection Regulation conferred a limited power to search the transaction records of permittees—albeit under all too generous terms of time (on demand) and place (the premises).
In other words, even when we consider the administrative regime in this case and construe it liberally, we conclude that there remained for all objectively reasonable officers a discernable difference between an inspection of records, for which no warrant was required, and a search for which a warrant was always required absent consent from the person being searched. This interpretation is far from unique and the record as a whole strongly corroborates it as the prevailing view.11
The foregoing limitations on an administrative search also rest on the specific language of the Supreme Court in Burger. The Court justified the search in that case in part on the basis that, if those conducting searches operate within the powers granted to them by the statutory scheme, those being searched “[know] that the inspections to which [they are] subject do not constitute discretionary acts by a government official but are conducted pursuant to statute.” Burger, 482 U.S. at 711. The Court went on to add that, when the scope of the law is set forth, the statute “places the operator on notice as to how to comply with the statute.” Id. Finally, Burger emphasized that administrative searches must be limited by the terms of the statutes which authorized them in order “to place appropriate restraints upon the discretion of the inspecting officers.” Id. Thus, the law barring random and extensive administrative searches had been clearly established since at least the Burger case in 1987.
Here, Spangler designed “Operation U-haul,” from its conception, as a search outside the statutory authority for an administrative inspection—creating a search for criminal physical evidence and not an inspection of a taxidermist‘s records. As the District Court noted, Spangler‘s efforts to plan and conduct an exhaustive search of Showers‘s home and business had all the hallmarks of a purely criminal investigation: he focused on possible criminal wrongdoing well in advance of the actual search, for which he planned extensively and organized a large show of force; he applied for a warrant, knowing that Showers indicated he would refuse consent, and implying that he knew a warrant was in
Thus, a reasonable officer in Spangler‘s position would have known that the actions he undertook in this case were not authorized by either the administrative statute or regulation then in place. Because the boundaries of his inspection authority were, in fact, clearly established—and did not include the use of administrative inspection to randomly and extensively search for evidence of crimes—Spangler is not entitled to qualified immunity. His liability, if any, for the search of April 13, 1993 is for a jury to decide.
Having held that Officer Spangler is not entitled to qualified immunity, we must briefly consider his codefendants. Unlike Spangler, each of the other officers and officials named in the suit, on these facts, appear to have carried out their duties in an objectively reasonable manner. Four of the defendants—Officers Haynes, Houghton, Kessel and Smith—did participate in the illegal search. However, all four participated under Spangler‘s direct operational control and the record discloses nothing to suggest that any of them knew that Spangler was exceeding his authority. As to the remaining four defendants—Supervisors Sloan, Beard, Clouser, and Fagan—nothing on the record suggests that they were aware of the search before it took place. While they knew of Showers‘s complaints against Spangler, and might well have intervened more forcefully, such tangential supervisory involvement cannot support liability and certainly does not undercut the District Court‘s justifiable conclusion that they are entitled to qualified immunity.
Accordingly, we reverse the District Court‘s order granting summary judgment in favor of Spangler and remand for a jury trial to determine both immunity and liability. As to all other defendants, however, summary judgment in their favor is affirmed.
Notes
Q: When you normally did an inspection, would you get a search warrant prior to the inspection?
A: No, sir.
Q: Why did you do it in this case?
A: Because Mr. Showers had told me—told me and put in one of those letters of complaint that he was not going to allow a search of his freezers.
Deposition of Steven A. Spangler, Dist. Ct. Doc. 25 at 166.Q: In how many other cases have you made up a detailed plan like that for the purpose of investigation or a search?
A: This is the most detailed. I don‘t recall having done that before.
This I think may have been the only one....