*2 CARNES, Before BARKETT and MARCUS, Judges. Circuit CARNES, Judge: Circuit Vickey Tapley filed lawsuit in federal district against City Vidalia, court Collins, and city officials Darrell William Torrance, and Ronnie Dixon contending had violated various state and hers, federal rights including her under the Federal Electronics Communi- Act, Privacy §§ cations 18 U.S.C. 2510- (“the Act”). Tapley, (“GBI”) Georgia Investigation Bureau of Collins, agent, alleged that the Chief of Police, private listened to her cordless tele- phone without her consent conversations or knowledge, together Torrance, the City Manager, relayed the content of Dixon, Mayor, conversations Owens, Greg Tapley’s and to supervi- GBI sor.1
Collins, Torrance, and Dixon moved for summary judgment on the Fed eral Wiretap immu claims nity grounds.2 district court denied Tapley separate parties filed a lawsuit Ow- the district have treated ens, Otherwise, party appeal though they and he is not a to this or to this case as are. contentions, the lawsuit it from which stems. arguments, rulings, appeal, as well as this have no Reg'l complaint utterly 2. The basis. See Hill v. Dekalb Youth silent Deten on whether Ctr., (11th Cir.1994)("It is well-settled that qualified im tion individual defendants are sued in 1184 n. 16 their capacities, beginning individual but from the summary him, motion judgment, hold- supervisor. and her former GBI ing immunity is not a de- evening That Collins listened to Tapley’s
fense to Federal Act claims. Be- in three telephone conversations different
cause of that holding, the district court calls, did and he made typed notes of what he *3 they
not decide whether would entitled be heard all three. qualified immunity if it is an available Later that evening, Chief Collins tele- defense to such claims. Those three indi- phoned supervisor, his City Manager Wil- appeal
vidual defendants the of denial Torrance, liam and told him about inter- summary judgment, arguing that the dis- cepting the conversations and some of in determining trict court erred the what had been said during them. The defense of is avail- not morning, next Collins and Torrance met to able to officials faced with Federal discuss the intercepted conversations. To-
Wiretap Act claims.3 For the reasons gether, Owen, Greg called Tapley’s follow, defendants, agree with the re- supervisor time, at GBI the to tell him the verse the district court’s qual- nature of these In re- conversations. ified immunity inapplicable to such sponse, Owen went City Hall met and claims, and remand for that court to deter- Collins, Mayor Torrence and Ronnie mine whether these individual defendants During Dixon. their meeting, Collins summary are entitled to judgment on the Torrance both told Owen and Dixon details of
basis immunity. Tapley’s of telephone conversations which had intercepted. Upon Collins hearing the
I. BACKGROUND conversations, of nature the Owen asked given for and was a copy typed
A. of the Facts4 *4 motions, the individual defendants The Federal Wiretap provides Act a asserted as a defense person who “intentionally intercepts, en-
to the Federal Act claim Wiretap deavors to intercept, procures or any other section 1983 claim. person to intercept or to endeavor inter-
The district court granted summary cept, wire, oral, any or electronic commu-
judgment to Tapley all of the de- subject nication” is to criminal sanctions
fendants as to liability under the Georgia liability. 2511(l)(a). and civil § 18 U.S.C.
Wiretap Act and the Federal Wiretap Act subjects The Act also to civil and criminal In the process,
claims. the court denied liability anyone who discloses the contents
the individual defendants’ motion for sum- of an illegally intercepted communication,
mary judgment based upon the defense see 18 U.S.C. 2511(l)(c), § or uses the
qualified immunity, concluding that de- contents of a intercepted communication,
fense was to a claim unavailable under the knowing or having reason to know that it Wiretap
Federal Act. The court also de- obtained, see 18 U.S.C. illegally was the 2511(l)(d).6
nied defendants’ summary § motion for The Act explicitly provides
judgment Taple/s state law claim complete a any defense to civil or criminal
intentional infliction of emotional distress. action under the statute where the
It ruling deferred a summary on the judg- good relied in upon defendant faith certain
ment motions insofar as section 1983 authorities enumerated the statute. See
claim was concerned. 2520(d).7 § 18 U.S.C. Although Tapley's complaint wire, oral, did not interception men- aof or electron- Act, Georgia tion the ic district in violation of communication this sub- section; interpreted containing it as a claim un- uses, use, (d)intentionally that act. or der endeavors to wire, oral, any the contents of or electronic communication,
6. The provides knowing having in rele- or reason part to know vant as follows: that the information was obtained wire, oral, through interception aof or (1) Except specifically provid- as otherwise electronic communication in violation of chapter ed any in this person who— subsection; this (a) intentionally intercepts, endeavors to in- tercept, procures any person or other to punished provided shall be (4) as in subsection intercept or intercept, any endeavor subject or shall be provided to suit as wire, communication; oral or electronic (5). subsection (b) uses, use, intentionally endeavors to or 2511(1). 18 U.S.C.
procures any person other to use or endeav- electronic, mechanical, any or to use or part 7.That of the Act states: any other device to intercept oral communi- (d) good Defense.—A faith reliance on— cation ... (1) order, grand a court jury warrant or a (c) discloses, intentionally or endeavors to authorization, subpoena, legislative or a disclose, any other person the authorization; contents of wire, oral, or (2) electronic communica- request investigative of an or law en- tion, knowing having or reason to 2518(7) know forcement officer under section title; that the through information was obtained this or good of that mon law defense if immunity,
The existence faith it wishes to do But the so. Court
defense in the statute is the main reason has said that the defense of im that qualified district court concluded established, munity that if is so well Con
immunity was unavailable defendants it, abrogate gress wishes to Congress violating
sued for
the Federal
Act.
specifically say
should
so. See
Buckley
factual premise
The district court’s
about
Fitzsimmons,
509 U.S.
113 S.Ct.
correct—the
certainly
the Act is
Act does
(1993) (“Cer
2606, 2613,
fense,
in
sued
their individ
officials
(1967))).
1213, 1218, 18
288
L.Ed.2d
ual
im
capacities
qualified
are entitled
Auth.,
In
Gonzalez v. Lee
Hous.
munity
actions do not
when their
violate
(11th Cir.1998),
violation of constitutional do not plaintiff In the argued Gonzalez immunity by violating forfeit their some that good the existence the faith de regulation.”). other statute or in Housing fense the Fair Act meant that placed Court has few Congress abrogate intended to the defense availability quali
restrictions on the of the qualified immunity under claims that See, e.g.,
fied immunity Malley defense. rejected act. unequivocally argu We that 335, 341,
Briggs, 475 106 U.S. S.Ct. ment and held that is a (1986) 89 271 L.Ed.2d (explaining Act, Housing to the Fair despite defense
that the qualified immunity pro defense good the inclusion of a faith de
tects “all but plainly incompetent the or “[n]either fense. We said that the text law”).
those who violate the knowingly legislative history Of nor the of section 3617
course, Congress Housing creates and controls Fair [of Act] stat the indicates that
utory causes power Congress abrogate quali of action has the intended to defenses, abrogate including fied immunity the corn- to which executive-branch il) good provides: Housing person that 8. The Fair “A faith determination section 2511(3) personally not liable for permitted shall be held mone- of this title the conduct tary damages chapter a violation of this if of; complained relied, reasonably person good faith, such in against any complete is a defense civil or application exemption on the under this chapter criminal action under this housing relating per- subsection for older or other law. 3607(b)(5)(A) (emphasis 42 sons.” U.S.C. 2520(d).
18U.S.C. added).
1215 were entitled jective nature, Harlow, under common law.” in see 457 at U.S. 816,102 explained Id. at 1299. We that our Qualified conclu- at S.Ct. immunity 2737. that
sion to effect was consistent with is a question deci- of law for judge, while good our Court and other courts faith generally
sions hold- is a jury question. 816-18,
ing public officials are See id. at entitled to 102 at 2737-38.
qualified immunity when sued Because it is a under a fed- of law question for the judge,, qualified
eral immunity statute. See id. at 1300 & n. We defense more be, often can eleven appeals generally be,
cited federal court decisions should decided qualified earlier litigation than a good avail- faith as a defense. Bryant,
able defense to See Hunter v. arising claims under 224, 227, 534, 536, U.S.
eight different federal statutes.9 Gonzalez (“[Bjecause (1991) L.Ed.2d 589 contention, Tapley’s
forecloses entitle- dis- ment is an immunity from suit rather than holding,
trict court’s that the existence a mere liability, defense to explicit good repeatedly
an faith in a defense federal have stressed the importance of resolving
statute rules out the defense immunity questions at the possible earliest
immunity.
(internal
stage in litigation.”)
marks and
Tapley also argues that the statu
omitted);
citations
Siegert
Gilley,
tory good faith
defense and
im
U.S.
munity
equivalent,
permitting both
L.Ed.2d 277
(Qualified immunity is
defenses is redundant. We doubt
at
determined
the earliest
point
that,
Tapley believes
if
it were
litigation
spare
“to
a defendant
only
not
true, whether the defense of
im
unwarranted liability, but
de-
unwarranted
munity is available would not matter to mands customarily imposed upon
de-
*6
claim,
her
and she would not have at
lawsuit.”).
fending
long
a
drawn out
Fi-
tempted
convince the district court and nally, a
qualified
denial of
immunity is
tried to convince us that it is unavailable.
interlocutorily appealable, see
v.
Behrens
event,
In
qualified immunity and the Pelletier,
299, 307,
834,
516 U.S.
116 S.Ct.
good faith defense in the
839,
(1996),
Act not equivalent are defenses. The two good of a faith appealable defense is only in different several important respects. after there has judgment been a final in
Qualified test, immunity objective case, is an 1291; see 28 U.S.C. Cohen v.
see Creighton, 635, Anderson v. 483 U.S. Indus. Loan Corp., 337 U.S. Beneficial 639, 107 97 1221, 1225-26, L.Ed.2d 523 69 S.Ct. 93 L.Ed.
(1987), good (1949). while faith defenses are sub- 1528 Gonzalez, 780, (9th Cir.1991) (the Those decisions we cited in see id. 797-99 Rehabilitation 34, 1973); at 1300 n. Dugger, were v. Lussier 904 Act Marcus, Christopher of P. Norma v.P. 661, 663-64, (11th Cir.1990) 794, F.2d (the (2d Cir.1990) 670 n. 10 915 F.2d 798-801 1973); (the Rehabilitation Act of Cullinan v. Handicapped Education for All Children Abramson, 301, (6th 1975); 128 F.3d 307-12 Cir. Act McLaughlin, of P.C. v. 913 F.2d 1997) (the 1033, (2d Corrupt Cir.1990) (the Racketeer Influenced and 1040-42 Education Act), denied, Organizations cert. Handicapped 523 U.S. All for Children Act of and 1975 1094, 1560, 1973); the Rehabilitation Act of Affiliated (1998); 1340, Murray, Houston, Torcasio v. Capital 57 F.3d Corp. 735 F.2d of (4th Cir.1995) (the 1555, (5th 1343 Cir.1984) (the Americans with Dis 1569-70 Sherman Act); abilities Act and Ass'n, the Rehabilitation Act of Antitrust Black National Police 1973); Moore, 1203, (8th Velde, 569, (D.C.Cir. Luev. 43 F.3d 1205 Inc. v. 712 F.2d 574-80 1994) (the 1973); 1983) (Title Cir. Act of Rights Rehabilitation VI of Civil Act of 1964 McGregor 1973). v. Louisiana State TJniv.Bd. Su and the Crime Control Act of We also of 850, (5th pervisors, 3 F.3d &862 n. 19 contrary authority Cir. cited in as Samu Gonzalez 1993) (the 1973); Holmes, (5th Cir.1998) Act of Rehabilitation Cro el v. 138 F.3d 178 Servs., Dep’t v. Texas (holding nen Human F.2d that is not an (5th 1992) (Food 939-40 Stamp Cir. Act available brought defense retaliation in claims 1977); General, Attorney Act). Doe v. under the False Claims this Finally, Circuit made directly have ad- Sixth
Only two circuits persua- for which have heard no point im- qualified of whether the issue
dressed strip judge not a answer: “We would sive a un- a defense to suit
munity is immunity be- prosecutor or of absolute They Act. the Federal der a vio- cause the claim related to Berry In conclusions. opposite reached provided an affirma- lation statute (D.C.Cir.1998),
Funk,
fied
immunity defense is
plained,
Wiretap Act. The Sixth Circuit
the Federal
jurisprudence
in our
so well-rooted
immu-
by adopting qualified
reasoned that
specific
unequivocal
statement
only
officials but not
nity
public
as a defense
Congress
can abolish the defense. See
citizens, courts had determined
private
Fitzsimmons,
Buckley v.
to receive more
officials were
2606, 2613,
protection immunities were so well id. at 1012. The reason
nary citizens. See 1983 was en established when to avoid “the protection acted,
for that extra presume that we
general subjecting provided officials to the had it specifically costs of would have them.”) (citations to abolish
risks of
of officials from wished
trial —distraction
*7
omitted);
duties,
Owen
quotation
internal
marks
governmental
inhibition of
City
Independence, 445 U.S.
action,
discretionary
of
and deterrence
1398, 1408,
Wiretap ”). Act lacks trine.’ The Federal qualified immunity provides public offi- unequivocal language neces specific, extra simply cials because it included an immunity sary abrogate qualified statutory everyone. defense available Any contrary conclusion would defense. Blake, See at 1012. As Sixth decision, with our be inconsistent Gonzalez Circuit explained: also “We fail to see which we are bound to follow. logic providing a defense of
immunity protect officials from public Because the defense
personal they consti- liability when violate is available to clearly
tutional that are not estab- under the Federal who are sued deny immunity Act,
lished and them ruling court erred it out the district remand,
when rights that the court should violate in this case. On to the immunity principles
similarly clearly apply qualified established.” Id. are not to this case applicable evidence law and
at 1013. Neither we. do
and decide whether the individual defen- Stanley summary judgment BROWN,
dants entitled to Plaintiff-Appellant, qualified immunity grounds insofar as
the Federal Act claim ITT CONSUMER FINANCIAL capacities them in their individual is con- CORPORATION, Defendant- cerned. We remand the case dis- Appellee. trict purpose.10 court for that No. 99-10506. United States Court of Appeals,
III. CONCLUSION Eleventh Circuit. The summary judgment denial of to the 5,May 2000. individual defendants is REVERSED Rehearing Denied June
AND REMANDED for proceed- further
ings opinion. consistent with this appeal of Vidalia is jurisdiction. for lack
DISMISSED
BARKETT, Judge, Circuit specially
concurring:
I concur I believe this result is by this Court’s
dictated decision Gonza- Auth.,
lez v. Lee Hous. (11th Cir.1998). *8 pendent appellate jurisdiction
10. We have Wiretap violates the Federal Act. But those subsidiary decide some concerning briefed, all, poorly iss.ues issues by been at have if alleged whether defendants’ actions vio all, parties, and we exercise our discretion lated Federal Act at decline to decide now. them See Belcher inextricably issues intertwined (11th Foley, 30 F.3d Cir. issues which we have 1994) ("We decline to exercise our discretion interlocutory jurisdiction to review. See remaining to review pendent claims under Comm’n, Swint Chambers appellate jurisdiction.”). imply We no view concerning alleged issue whether the (1995); Lauderdale, City Fort Moniz v. conduct of the defendants violated the Feder (11th Cir.1998). 1281 n. 3 An now, only al Act. For we decide example interception is the issue of whether quali the district court erred in being of conversation less case, transmitted a cord phone fied was allegedly nature used in not an available defense at this features, lacking privacy as it did certain all to Act claims. notes had Collins made of the conversa- During the evening of November after, tions. Soon Owen Tap- confronted Collins, Darrell the Chief Police of ley telephone conversations, about City Vidalia, the of for was at home listen- and he reassigned her to a different terri- ing personal scanner, to his a device which tory so that longer she no had responsibili- intercepts transmissions radio on several ty City for the of Vidalia. of frequency. bands Collins his heard name come scanner, over the pushed he History B. Procedural key to a lock in the frequency. He soon realized he had intercepted telephone a learning After telephone that her con- conversation between Vickey Tapley, had been intercepted versations and dis- agent GBI who cussed, lived down the street from Tapley filed suit in federal district munity only protects public jurisdiction law to interlocutorily review rul suits against them in their individual ing relating City to the of Vidalia. See Swint (internal capacity.”) quotation marks and ci Comm'n, v. Chambers circumstances, omitted). tations Under these (1995) we will treat case as one in which the ("[N]or ‘pendent party' appellate is there au being individual defendants are sued in their case.”); thority up to take the commission’s capacities. Georgia individual See Jackson v. Hollowell, (11th Pickens 1208 Dep’t (11th 16 Transp., F.3d 1995) ("[W]e Cir. party ap have no pendent 1994) ("When Cir. it is not clear in which pellate jurisdiction.”). Accordingly, we will sued, capacity the defendants are the course City's appeal. dismiss the of proceedings typically indicates nature of the liability sought imposed.”). to be considering 4. "In denial of defendant's motion, summary judgment required we are City attempts of Vidalia also appeal facts, view the which drawn district from the court’s denial of its for motion affidavits, summary pleadings, depositions, judgment, in the which was on the based City’s light municipality plaintiff! that a favorable ]." contention cannot most to the Swint civilly (11th be held City Wadley, liable for violations the Fed- 1995). eral its officials. We lack Cir. Collins, Torrance, Dixon and After the defendants moved for recon- Vidalia, Georgia. sideration, Her com- the district court entered an (1) plaint alleging: contained claims viola- order granting summary judgment to the (2) Act; of the Federal Wiretap tion viola- defendants on the immu- basis 16-11-62, “Georgia tion O.C.G.A. nity on the section 1983 claim. The dis- Act;”5 (3) (4) privacy; invasion of trict court’s other rulings, including the harm; intentional infliction of emotional one that immunity is not available violation of her civil under as a defense to Federal Wiretap Act (42 1983). color of state claims, law U.S.C. Tap- stood. ley defendants filed cross motions summary judgment on liability. In II. DISCUSSION