Wayne Ernest Barker v. Ben Norman and Jack Ballas

364; Grant, N.Y., 1890, 44 The U. S. F.

S.D.N.Y., 642. The fact that 45 F. authority sug-

there is little decisional universally accept- it has

gests that been bar this does Applied

ed. the case at insurer, its petitioner,

not mean liens, merely prior pay

must off protect stipulation must be filed to

limitation claimant in amount To do less would

value of the vessel. limiting petitioner is

mean that claims

beyond authority the statute. Zebroid, (1st at 228-29 1970). the district

Finding that dismissal upon assump- based an erroneous

court was pay

tion that a vessel owner must off prior prece- claimants as condition

secure filing proceeding, a limitation we

dent order

vacate the of dismissal remand.

VACATED REMANDED. BARKER,

Wayne Ernest

Plaintiff-Appellant, Ballas,

Ben NORMAN and Jack

Defendants-Appellees. 80-1288

No.

Summary Calendar. Appeals,

United States Court of

Fifth Circuit.

AUnit

July

H09

HH Barker, pro se. Wayne E. Houston, Tex., Crawford, David L. Norman. Houston, Tex., Flores, Angela

Maria Balias. RANDALL, GEE, and

Before RUBIN Judges. Circuit RANDALL, Judge: Circuit Plaintiff-Appellant Wayne Ernest Barker * appeal from an sum brings this adverse court in his mary below injunctive relief damages and suit Defendant-Appellees, the two Offi against De the Houston Police cer Ben Norman of (HPD), Agent Jack Balias partment and Alcohol, To States Bureau the United (ATF). alleges Barker bacco & Firearms Agent con Balias that Officer Norman rights number of the spired to violate a him the United States Consti by secured to Norman, tution; his suit as to Officer (1976),1 on 42 premised U.S.C. § * who, Every person any under color of stat- party requested argument, No in oral this case custom, ute, ordinance, usage, regulation, panel judge or and no on the calendar Territory, subjects, necessary. any argument or causes State or determined oral circumstances, any subjected, United citizen In these Fifth Local to be Circuit jurisdiction person within the Rules 13.6.4 allow us this States or other and 18.2 to decide privi- rights, deprivation argument, despite without fact thereof to the case oral leges, panel part secured the Constitu- that one in immunities member of concurs Schweiker, laws, party part. liable shall be and dissents in See Tew tion law, equity, 1981). injured in in an action at suit 926 n.1 proper proceeding for redress. other (1976). § 42 U.S.C. provides: 1. Section 1983 matters, Bailas, premised including pos- on several Barker’s Agent his suit is on a tort claim.3 The al-

Bivens2 constitutional tapes session of certain and notes that had rights leged of his arose from violations to do with Barker’s search for his wife of Barker’s Officer Norman’s search Hous- during period thought when he she was alleged ton coercion of apartment, being against by drug will held her traffick- guilty plea to a federal firearms Killeen, Texas, Taylor’s ers in area. charge by property the use of seized from records, long-distance according phone apartment, and the retention of some of Barker, Taylor phoned would confirm that property the seized Officer Norman de- Department the Houston Police on Novem- spite Barker’s demands for its return. The 3,1976. call, alleges ber Barker this granted summary judgment court below in Taylor sought to induce HPD to seize these defendants, holding favor of both that there Norman, tapes acting and notes. Officer disputed was no issue of fact as to behalf, Agent Taylor’s then contacted ATF whether the defendants had established a Balias, Barker, according Agent Balias. defense of immunity based on “gave unauthorized sanction” to Officer good their faith. For the reasons stated in apartment Norman to search Barker’s opinion, part, we affirm in reverse in Houston, tapes and to seize the and notes part, and remand. along anything helpful else to the fed- prosecution eral firearms Kansas. 1. FACTUAL BACKGROUNDLEADING TO THIS APPEAL alleges Taylor’s that as a result of Allegations encouragement, A. Complaint: in Barker’s call Balias’ Story

One Side way apart- Norman forced his into Barker’s day objections ment on that same over the Agent Balias arrested Barker in West- temporary occupant, Blanchard Gail moreland, Kansas, 14, 1976, September Keller; present Barker was not at the time. for allegedly violating the Gun Control Act placed custody Officer Norman Keller 922(h) (1976), by pos- U.S.C. § having fugitive.” “aided and abetted a sessing a .38 caliber revolver.4 Barker Barker, pleaded According guilty arraignment. not at his Officer Norman acted Tri- 8, 1976, al was set for probable November and Bark- without a warrant or cause in bond, er was released on after which entering apartment; good he lacked a .he apparently returned to Texas. story The he progress faith belief that a crime was relates in petition begins his verified at that committed; was about to be and he knew point, and, insofar pertains as it to this or should have known that his actions were lawsuit, way goes: this is the the story disregard unlawful and in reckless of Bark- rights. er’s Officer Norman seized and wife, Jacqueline,

Barker left his at her Carrollton, Texas, away father’s home in carried a number of items of Barker’s on No- 2, personal property, including vember 1976. Barker twelve cassette Taylor,5 and Jack father-in-law, his disagreement had a tapes, tape had two recorders and associated Agents 4. 2. Bivens v. Six Unknown Barker had been convicted in Ohio in 1958 on Named of the Narcotics, 388, felony charge robbery, Federal Bureau of 403 U.S. 91 of armed and as a 1999, (1971). felon, S.Ct. 29 possession L.Ed.2d 619 See also convicted of a firearm that Green, 14, 1468, Carlson v. 446 U.S. transported had been in interstate commerce (1980); Passman, 64 L.Ed.2d 15 Davis v. constituted a new crime. 2264, (1979); U.S. 99 S.Ct. 60 L.Ed.2d 846 Economou, Butz v. 438 U.S. 98 S.Ct. Taylor 5. Barker named as a defendant in this (1978). 57 L.Ed.2d 895 ground participated suit on the alleged conspiracy. During that he in the pendency of Subject jurisdiction 3. matter for the § suit, died; has, Taylor while the suit against predicated claim Officer Norman is on course, Taylor, abated as to his activities re- 1343(3) (1976). Subject § U.S.C. matter alleged conspiracy. main relevant to the jurisdiction against Agent for the Bivens claim predicated 1331(a) Balias is (1976). on 28 § U.S.C. walkie-talkies, after Barker from telephone, returned the November four equipment, 8, 1976, relating binoculars, legal papers trial in Kansas. Barker asked pair legal disposition charge, and other about the ultimate claim Kansas firearms tapes marijuana that Officer Norman had found opinions and notes. Several car, replied, in the Norman “It between Barker and and Officer related conversations case, depends you Topeka.” appointed counsel the Kansas what do How- ever, pertained go he would tapes Martin. Officer Norman said not John 0. Other Topeka testify. law- directly relevant to this matters legal papers outlined Barker’s suit. attorney telephoned his Barker strategy in the Kansas case. defense Martin, (John apparently) firearms case afternoon, go strategies. Norman al- Barker Later that over their defense legedly alleges into and searched a Volks- told him in this conver- broke Martin lawfully Attorney Bruce wagen automobile that was in sation that Assistant U. S. Miller, case, possession; belonged prosecutor to E. had Barker's car (AUSA Miller) pos- son-in-law.” Barker’s told Martin that he had Barker’s “mother’s mother, Barker, tapes, protested incriminating marijuana, Laura session law, against shotgun which Miller car was and a AUSA search —all allegedly replied, against “I’m intended to use as evidence Barker Officer Norman alleges law.” Barker the search was at the trial. Martin then “intimated” cause, probable possession in his without a warrant or and AUSA Miller also had tapes relating to that Officer Norman knew or should have and notes Barker’s defense reason, pre- strategy; his actions were unlawful and for this Martin had known that p. rights. pared At 5:00 no defense and the trial court would violation m., grant had the car towed no continuance. Martin told Barker Officer Norman “running the despite objections. Miller was court” away, Barker’s mother’s AUSA he could do whatever want- and that Miller Knoff, John J. attorney Houston ed, including using hearsay “if he did not prior worked on occa- whom Barker had incriminating of a actually anything have sions, Norman on November contacted physical nature.” Knoff he had 1976. Officer Norman told automobile; day, the next be- just during alleges that on seized the a search Barker trial, “conveyed” Miller car, bags fore AUSA discovered pleaded guilty, he would shotgun. Offi- him that if he marijuana and a sawed-off otherwise, message days; for 45 cer Norman left a with Knoff to continued on bond by “whatever have call Officer Norman. he would be convicted being released prevented means” alleges Barker further that on November seeing again. his wife appeal bond and 5,1976, he and asked called Officer Norman urgently with pleaded had Barker’s wife car, personal prop- for the return of the the occasions, urging by phone on Barker two apartment, ten erty from the and or more Taylor’s pick home to her him to return to photographs had of his wife that been in up. alleges that AUSA Miller’s Barker charges ascertaining the car. After that no personal threats, with the when combined against as had been filed him in Houston retain some measure pressure Barker to seizure, result of and Barker the search “rescue” his that he could freedom so marijua- asked as to the whereabouts wife, fight will overcome his to operated to shotgun. na and Norman told the Officer charges. pleaded guilty and He the firearm Agent Barker Balias had taken the sentencing. pending on bond was continued Kansas, marijuana shotgun along and to his entering tapes legal alleges that after with several of the and the Barker in hall- Agent Balias plea Barker he talked to papers. Officer Norman also told complaint out the sub- sets tapes longer way. Barker’s that several other were by quoting an conversation Officer and that he stance of this possession, Norman’s gave in the Keller says that he property would return the and the other affidavit car plea proceeding by Barker withdrawal motion were affirmed Kansas wherein tried to Appeals Keller United States Court of guilty withdraw his was a plea. 12, 1978, July Tenth conversation, Circuit on Barker according to witness to States, United 579 F.2d 1219 Although quotes Barker. Barker this affi- 1978), 18,1978, by but been davit, May Barker had appear does not affidavit itself paroled. quoted record. to the According por- tion, Agent Balias said he had flown stating a Barker his suit as characterizes Houston, agent agent to and the had number of causes of action under various brought marijuana, back tapes, and provisions United States Constitu- shotgun. Agent said Balias that he had construed, two Broadly tion. the first tapes, listened to most of the and he told claims are three defendants con- planned government Barker that the had to spired his Amend- to and did violate Fourth introduce all of this evidence if as Barker right ment free from to be unreasonable gone seizures, replied had to trial. Barker that he searches viola- and associated by attorney had been told tions of rights privacy, his that the evi- his first when apartment, would used Officer Norman searched his only dence have been to take again bond, and var- that, off when Officer Norman seized Agent him but Balias said ious items and the out- therein automobile contrary, they would have used the side. The is that third claim the concerted property seized at trial. Balias, Taylor, Agent actions of and Officer picked up Barker wife on November deny Norman trial combined him a fair 10, 1976, they and confronted Officer Nor- de- Kansas on the firearms violation man at Norman’s office November 14. nying him effective assistance of counsel Barker Officer Norman told “it was all coercing entering plea and him into concerned, over” far as was Norman guilty. The fourth claim that the defend- told Barker that had “put Norman been deprive conspired proper- ants him of his people.” a cross the federal Barker ty law, process without due in violation picked up Volkswagen automobile, Amendments, of the Fifth and Fourteenth Norman per- refused return the by unlawfully retaining the seized items property.6 sonal despite Barker’s demands their return. On December “after further informa- These claims referred will be to hereinafter leading tion believe that he opinion had in this search and seizure [Barker] claims, unlawfully plea claim, been into pleading prop- coerced coerced claim, erty guilty violation,” respectively. to the firearms retention federal filed Barker a motion with the federal dis- It is unclear from the district court’s trict court in guilty Kansas to withdraw his opinion weight, any, gave what if it plea. On December 21— pleadings various its considera- motion; argued plea withdrawal he had tion of the motions. counsel, his court-appointed dismissed Mar- 56(e) We note that Fed.R.Civ.P. hearing, according Barker, tin. At the supporting oppos- demands that both Miller AUSA admitted the threat he ing personal affidavits be made on knowl- basis, used had no valid that the infor- edge, such facts set forth as would regarding allegedly incriminating mation evidence, admissible in and show affirma- hearsay, items fifth or sixth level tively competent affiant that [the] he that had never seen the items and did testify to stated To the matters therein. them, not know who had seen or even if pleading the extent that a verified meets Nonetheless, they existed. Barker’s motion requirement may that then it be properly denied, was and he was sentenced to three supporting to a equivalent considered as affidavit, years. His the be. opposing may conviction and denial of the as the case point complaint, allegedly 6. At this in his Barker denied that were seized from the car. marijuana shotgun the existence and attorney duty on who had ad- Moore, ant district 1) 56.- J. Federal Practice (pt. K 1976) (foot (2d charges 56-250 to -251 ed. had 11[3], at vised him that since Barker Watson, Accord, omitted). Gordon Norman Knoff would be no told there Agent Judgment Summary the C. Balias’ Ma- subsequently informed me Mr. Barker Story terials: from The Defendants’ stolen, that he property was and did Angle Another property.”8 want answer, filing Agent Prior an ATF Finally, Officer Norman’s affidavit on summary judgment Balias moved for following makes the assertion: basis three affidavits filed simultaneous- respect any With and items all memo- ly supporting with the motion and seized, property I on the basis of acted from fellow randum. Two affidavits were were known to me circumstances which agents.9 sub- ATF third affidavit circumstances, based at the time. These mitted with the motion on transmitted to me Kel- information Agent is that of Balias himself. Balias mother, my ler Mr. and own and 13, 1976, September he avers on my on-the-scene observations based agent of the Kansas Bu- learned from years experience four as a in Detective Investigation that Barker had been reau Burglary my & Theft Division and Kansas, County, disarmed in Pottawatomie experience years prior seventeen a Po- agent after the KBI had learned that Bark- officer, lice led me to conclude that under day, er was a felon. That same convicted law, state items seized were seized Agent Balias obtained an arrest warrant goods illegal stolen and/or contraband Magistrate City, from U.S. in Kansas weapons. and Kansas, September next day, and on the 1976, Agent arrested in Balias Barker West- affidavit, Based on this Officer Norman moreland, Kansas. moved for ground there no was issue of During September the remainder of and remaining legal fact justification as to his October, Agent the month of Balias contin- seizing retaining the items. investigation, obtaining ued the documents none of his pleadings does Officer Norman relating prior felony to Barker’s conviction assert that he is to claim entitled incarceration, running firearm and official liability from sec- under fingerprint Agent traces. Balias talked tion 1983. with Barker on several occasions.10 After a request, pick up 8. Officer Norman also Lobdell traveled to avers that he seized the Houston Volkswagen custody in the belief that it was stolen evidence of the Houston Police vehicle. He had determined that the car Department that related to Barker’s firearms Duncanville, registered to G&H Contractors of charge Saturday, On November Kansas. Texas, and Keller him had told that she did not 1976, Lobdell received from HPD a sawed-off belonged. know to whom the car Keller shotgun photographs. Monday, and several On shotgun marijuana also told him that and a Lobdell November turned these items were in the trunk. Officer Norman’s search of Agent purposes over to Balias inves- containing bag- the car revealed a suitcase tigation. Approximately later, two weeks gies marijuana shotgun; and a items these needed, longer when the items were Lobdell contraband, were seized as and the car was by registered returned them to HPD mail. Lob- contacting regis- returned to Barker after tered owners. No any tapes dell avers that did not he recall filed, however, charges were marijuana, knowledge and that he has no because Barker was about to be incarcerated Agent Balias initiated actions HPD to on the federal firearms violation in Kansas. marijuana, shotgun, photographs. obtain supervisor, 9. The first affidavit is Balias’ During these conversations assured Harvey, Special Agent Charge Charles R. release, Agent upon Balias that he would Alcohol, for the Bureau of Tobacco & Firearms Agent supply Balias with information “that City Harvey in the Kansas District Office. half would incarcerate the criminals avers (discussed that was familiar with Balias’ affidavit only text), State of Texas was the because [Balias] above in con- that he has (Emphasis firmed one who had been fair with actions described in affi- him.” Balias’ original.) scope Special Additionally, Agent davit occurred within Balias “made Agent authority agent. attempts potential Fallas’ as an ATF to locate Barker’s wife as a government Agent which was in his witness he felt Another affidavit is from ATF Peter W. Lobdell. Lobdell avers that he assisted Bal- ias in the behalf.” investigation of Barker. At Balias’ Finally, Agent Balias avers that at all Bal- hearing Topeka, Agent preliminary Nor- phone call from Officer during investigation, ias received he acted in times man, Balias that dur- Agent who informed accepted poli- with good faith in accordance conducting a search ing the course agent. ATF and his sworn duties as an cies Norman had apartment, Barker’s Officer having engaged any He denies ever requiring correspondence found official imprison to and conspiracy arrest scheme to firearms violation Barker to answer of his constitutional Barker violation avers in the affi- Agent Balias in Kansas. his his that activi- rights, and asserts belief for certain davit he cannot remember that discharge proper and valid ties were that, phone what calls after who initiated a federal law enforcement his duties as relayed he had he recall that does accompany- In memorandum officer. re- all information he had AUSA Miller and affi- ing summary judgment motion Agent Miller Bal- ceived. instructed AUSA davits, Agent entitlement to a Balias claims pick up agent Houston to ias send an citing immunity, Butz v. qualified official that would be any information evidence Economou, keep charge, relevant to the firearms 438 U.S. progress AUSA Miller advised as to (1978). L.Ed.2d agent investigation. An ATF was sent picked perform this task. He to Houston Responses Barker’s to the Motions D. along up shotgun, from a sawed-off HPD Summary Judgment poster with a “reward” homemade sought photo- wife and to locate Barker’s Agent Balias moved for After wife; graphs these items were of Barker’s Barker filed an unverified judgment, attempt leads to locate to be used as Opposition to Defendant “Memorandum government could as a her so that she serve Summary Judgment.” Motion for Balias’ witness. terms, as- conclusory In the memorandum Agent evidence Balias avers “[a]ll that there are still issues serts Police De- was returned to Houston [the] fact, and asserts that disputed further pled guilty and was sen- partment, Barker Agent operating had been outside Balias tenced, dealing or I had further no picked up having the authority in evidence Agent spe- thought the matter.” Balias on from Houston. involved cifically that he had become denies Norman’s after with HPD or Officer Norman until Septem- were filed motion affidavit he never place; had search had taken response, filed on Barker ber prior Norman to that even talked Officer 5, 1979, responding memorandum having ever met or talked October time. He denies Agent Taylor, Barker’s father-in-law. affidavit. memoran- with an attached having encouraged anyone to Balias denies terms that there conclusory asserts in dum apartment. perform a search of Barker’s remaining in genuine issues of fact are still case, goes to assert that and then allegations of his Regarding Barker’s Balias, hallway Agent standing conversation with consent to had no Keller Agent admits he had discussed Balias among pa- and that apartment search telling him after shotgun were bills of Norman pers seized Officer Agent Bal- Miller had directed AUSA as stolen. of the items seized sale for several it. agent get Houston to ias to send an asserts that further The memorandum marijuana or Agent denies that the Balias justification adequate legal there Houston, brought from tapes had been back prop- the seizure or the retention no time he avers that he at further erty. tapes. did Nor any listened to to the memo- attached In the affidavit ever of the evidence imply randum, proper- that after Barker avers have brought would back Houston seized; Barker that Offi- Keller told ty was guilt during phase been introduced the time of had told her at cer Norman gone the trial had Barker to trial. taking the return of property property compensation seizure that he was the the or induce Barker to contact him. Keller also for its loss. that, seizure, time

told Barker at the she had Officer Norman that had told she E. Action in the District Court purchased been Barker he had when an unpublished In decision memorandum store, the Radio several of items at a Shack 21, 1980, January entered below court and that several of the bills of sale were in granted judgment summary in full as to apartment. The affidavit then avers both defendants. court characterized requested that Barker Knoff to contact Of- having both defendants as moved sum- Norman; so, ficer did Knoff and after- judgment mary qualified immunity wards that informed Barker Officer Nor- grounds and reviewed the contentions of man had told Knoff that he would return short, pleadings.11 both defendants’ property the seized to Barker as as he soon court concluded Barker had failed to that it determined was stolen. put dispute competent into summary The affidavit further states that Barker judgment question material of whether went to Officer Norman’s office on Novem- Agent scope Balias had acted outside the ber at which time Officer Norman authority, genu- his no and that there was returned the Volkswagen; but Nor- Officer ine issue of Agent fact as to whether Balias else, man anything saying refused return encouraged or even known of the he was checking still to see if items property search and retention seizure were stolen. The says affidavit both Norman, after the As to seizure. Officer Barker and Knoff contacted Officer Nor- the court found no issue of fact occasions, man on seeking several later justified by whether the was search Keller’s return of the property without success. At consent, or as to lack of Officer Norman’s time, according to what Keller and Bark- malicious intent. The court concluded that Barker, er’s mother told did either woman right neither defendant had forfeited his ever tell Officer that any Norman suit, type from this stolen; property rather, seized they was good and that their acts had been in faith told Barker that they had told Officer Nor- objective under either subjective stan- man the property was not stolen. Accordingly, summary judgment dard. was Barker’s mother also told him that she had granted and suit Barker’s was dismissed. offered to show Officer Norman sale bills of The court did not advert the retention of covering some of property. issue; property although seized it mentioned Finally, the affidavit states that there is plea the coerced cause of action in an intro- nothing in the record indicate Officer ductory paragraph, it did not otherwise deal good Norman’s faith belief that his seizure with that issue.12 lawful, property was and if he did believe acts, lawfulness II. THE OF AND NECESSITY NOTICE belief was unreasonable because proper- ORAL ARGUMENT ON SUMMARY ty reported had not been as stolen. The JUDGMENT MOTIONS property stolen, has never been verified as affidavit; according to the it concludes In his point appeal, first with the assertion that Barker is argues entitled to that he entitled was under Fed.R. gave It is unclear whether the court second motion was an affidavit made Barker complaint equivalent weight verified affi- length phone to an wherein he transcribed at call require- davit insofar as it otherwise met the According he had had with Keller. script, the tran- 56(e), ments Rule it never discussed sharply disputed Keller Nor- Officer Barker’s contentions in detail. apartment man’s claims that the was search consensual and Keller told various him the summary entered, judgment 12. After Bark- property items were is unclear stolen. It er filed two motions have it set aside. On whether the court ever district considered ' day second, that he filed the the court second motion and attached affidavit. below overruled the first. Attached to the summary judgment motions the defendants’ he could 56(c) hearing at which to a Civ.P. by the why under advisement arguments were to taken orally present of material Agent was still a issue there court. Balias’ the case.13 While remaining fact of Mo- proper contained a “Notice motion is to most district courts practice usual certification, it which indicated that tion” argument for summa- oral on motions hold Au- consideration on would be taken under them, deciding ry judgment before 28,1978. Norman’s motion did gust 56(e). Rule We held required by a of Motion” certifica- not include “Notice (5th v. 538 F.2d 91 Cir. Hampton, Kibort 90, tion, that the the docket sheet shows 56(c) contemplates 1976), that Rule while set date of October court clerk a submission “hearing” party a notice to an adverse 1979, 15, parties. the Barker and notified summary judg- a the rules on before court responded to both of these motions in fact motion, “hearing” need not be one ment the to the their submission before the date of argument.14 which the court receives oral that, plain- the We conclude unlike court. 56(c) Rule is that reading Kibort’s Films, Capital Barker tiffs in Kibort days party is entitled to have ten adverse meaning of the “heard” within the had been be that the matter will advance notice requirements 56(c) when “hearing” of Rule e., court —i. the matter “heard” summary judg- ruled on the the court below as of a will be taken under advisement motions.15 ment sense date. To be “heard” in this certain necessarily require argument does not SUMMARY III. LAW APPLICABLE TO Capital Corp. v. open court. also Films See QUALIFIED IM- JUDGMENTS ON Productions, Inc., Fries 628 F.2d Charles MUNITY GROUNDS 387, (5th 1980). 391-92 Cir. judg- granted summary The district court

The in this case indicates that record genuine issue of requisite because found no notice ment it received party opportunity prepare 56(c) pertinent part, adverse provides, as 13. Rule affidavits, memoranda and other and submit follows: when rul- materials for the court to consider summary judgment] be The motion shall [for party ing If the is on the motion. adverse days fixed served at least 10 before the time given opportunity, prior then he has been hearing. party this for the The adverse meaning may day hearing opposing of Rule 56. affi- heard within the serve sought plaintiff judgment notice be ren- Here the received neither davits. The shall pleadings, depositions, hearing. if the was no reason for dered forthwith a There interrogatories, plaintiff suspect admissions about answers court affidavits, file, any, together plaintiff with the if on been If had to rule given the motion. any court), as to (by show that there is no issue or the notice the defendants moving party is material and that fact may materials have submitted additional a law. entitled to a as matter of develop of time to or moved for an extension discovery. through materials such in inter- We made comments in Kibort these provide notice or This failure to either 56(c) preting language of Rule that is set plaintiffs oppor- hearing in off this case cut 13, supra: out in note tunity develop the court a record which language previously interpreted We have fairly com- the merits of his could rule on requiring party and a notice to an adverse plaint. Inc., Hotel, Time, hearing. Air Bon Inc. v. omitted; emphasis (footnote at 538 F.2d added). 91 858, (5th 1970); Georgia 426 F.2d 863 Cir. Ry. v. Southern Fla. Co. Atlantic Coast & Co., 493, [(5th Line R. R. 373 F.2d 496-497 1256, Curry, 1262 cf. 574 F.2d 15. But Slavin v. 69, denied, 851, Cir), cert. 389 U.S. 88 S.Ct. (5th 1978) (“[t]he extent and the Cir. existence Sisson, (1967)]; 301 19 L.Ed.2d 120 Enochs v. upon any immunity depends defense 125, 1962). As indicated F.2d by 126 position occupied as well the defendant decision, though, “hearing” the Bon Air hearing. [F]or the motivation of the defendant.... necessarily mean does not an oral having immunity, only qualified day[s] [full- contemplates those 10 ad What the rule usually necessary hearing to determine party scale] vance the adverse notice to entitles the defendant’s motivation will advise whether matter be heard and taken under faith.”). day. good provides the to a defense of ment as of This him a certain 1120 1920, 64 necessary (1980).

material fact as to fact S.Ct. L.Ed.2d 572 The has, dictum, Supreme qualified recently the defendants' immuni- Court con- establish ty noted, only position have firmed our circuit’s burden Agent defenses. As we defense; is on just plead, the defendant not but to proffered Balias such a establish supplied it for his entitlement claim official apparently district court Of- immunity in the first instance: ficer Norman. In order review the dis- issue, on this we ruling trict court’s must The immunities of officials that we state scope ascertain the immuni- recognized have purposes § ty to a defenses available law enforcement equivalents are the of those that were which law, and the circumstances in sum- recognized City officer at common Owen given mary judgment may proper, 637, 622, Independence, 445 U.S. scope those 1398, defenses. 1408, (1980); S.Ct. 63 L.Ed.2d 673 Pachtman, Imbler 424 U.S. Scope Qualified A. Immunity- (1976); L.Ed.2d Defenses claiming the burden is on the official immunity to demonstrate his entitlement. 1. Officer Norman’s qualified im 478, Economou, Cf. v. Butz 438 506 U.S. munity from liability. section 1983 —Our 2894, 2910, 57 past S.Ct. L.Ed.2d police cases that [98 indicate officers are 895] (1978). entitled assert a defense of official im munity from 1983 liability section based on Dennis Sparks, 24, 29, v. 449 U.S. 101 the officer’s reasonable belief that his ac 187, 183, (hold- (1980) S.Ct. 66 185 L.Ed.2d tions were lawful scope and within the ing private allegedly that who individuals authority; his but the cases hold also that injunction bribed judge state trial issue one, immunity qualified official is but a were not shielded in section 1983 action for by showing for it can be breached damages by judge’s immunity). absolute “good g., officer lacked E. faith.” showing pleaded, Once “the that a defend- Short, 621, v. (5th Reimer F.2d 578 627-28 quali- ant must make to avail himself of the 1978), denied, 947, Cir. cert. 440 U.S. 99 immunity fied depending defense varies 1425, (1979). S.Ct. 59 635 L.Ed.2d Cf. Pier upon degree of discretion that exer- he Ray, 547, 1213, son v. 386 U.S. 87 S.Ct. 18 cises performing his official duties.” (1967) (good 288 L.Ed.2d faith defense to Jones, 527, (5th Douthit v. 619 F.2d 534 Cir. section 1983 liability making officers an 1980). We held Douthit probable cause); arrest with Procunier v. plaintiff damages seeks under [w]hen Navarette, 555, 855, 434 U.S. 98 55 discretionary by 1983 for a § action (1978) L.Ed.2d 24 (extending good faith de administrator, prison official such as a prison officials). fense to generally See S. exceedingly who must exercise an broad Nahmod, Rights Civil & Civil Liberties Liti range of offi- performing discretion in

gation: 1983, 8.02, A Guide to at Section §§ duties, cial the official should be entitled (1979 8.08 Supp.). (cid:127)& 1980 upon immunity showing scope that he acted within the

Qualified immunity from section authority. liability 1983 is an affirmative defense in pleaded16 by sense that it be (emphasis added).17 must Id. We contrasted the Toledo, 635, defendant. Gomez v. showing by 446 U.S. be that needed to made may however, permissible, 16. It be fendant had answered and court had to raise this entered order; pretrial affirmative defense can affirmative defense for the first time in a mo- by summary only summary judgment. (pt. 2) raised motion tion for 6See J. pleading when motion is initial ten- Moore, 56.17[4], Federal Practice at 56-736 to defendant). dered (2d 1980); Funding Systems -741 ed. but cf. 91, Leasing Corp. Pugh, (5th v. 530 F.2d 95-96 McCray Burrell, 357, (4th 17. Cf. v. F.2d 516 370 1976) (state Cir. of frauds defense statute 1975) (qualified immunity Cir. defense availa only waived when raised for first time support brief in ble have after defendants met burden proof they good after motion de- had a faith belief

1121 existence, which at prison officials in Douthit to that time the official’s action, clearly judicial need be made an official of more limited established deci- officer; discretion, police lat- sions such as a that make his action unconstitution- objec- ter must al. type of official demonstrate

tive which compel circumstances would (citation omitted) (quoting Id. at 411 Wood conclusion that his actions were undertaken 308, 992, Strickland, 322, 420 95 S.Ct. v. U.S. pursuant performance to the of his duties 1001, (1975)). 43 This true L.Ed.2d 214 scope authority. and within the of his See despite subjective be the official’s sincere 619 F.2d at 534.18 As acting properly. lief that he is Id. noted, law does Circuit has Sixth “[t]he official has shown that Once the police expect sophisticated officers to be acting capacity in his official lawyers, or criminal be constitutional scope discretionary within the of his author responsibil with the they charged cause are ity, plaintiff shifts to the the burden law, enforcing the it is ity of not unreason by showing breach the official’s have expect able to them to some knowl “good the official lacked faith.” Id. Louisville, City edge of it.” Glasson v. Cook, (5th v. Bogard 586 F.2d 399 Cir. denied, 899, (6th Cir.), F.2d cert. 883, denied, 1978), cert. 444 U.S. 100 S.Ct. (1975). 96 S.Ct. L.Ed.2d U.S. (1979), out 62 L.Ed.2d 113 we fleshed Mississippi, also See Jackson “good the definition of faith” in this con 1142, 1145(5th 1981); Stubbs, Cir. Dilmore Bogará text. makes clear that there are 1981). 636 F.2d 968-69 subjective components objective both analysis good objective faith. The component of the defend- subjective do the component has to with reasonable pres- do the “good faith” has to ant’s clearly ness the of official’s actions under intent,” of or “malicious which ence absence established law at the time he acted: may by proof plaintiff show the 1983 actually official is liable under section intended that an official either [A]n reasonably knew have took plaintiff, “if he should to to do harm the which, his although that the action he took within not intended to do known action responsibility harm, produce injury vio- sphere likely would so to that official was as substan- rights” per- harm can be characterized late the constitutional the the spirit of to The the tially is the certain result. son affected. fulcrum ... actions), proceeding plaintiffs legality to im determine the of their cert. dism’d as correct address; scene, 471, plaintiff providently granted, when the fled the the 426 S.Ct. U.S. 96 2640, (1976); judge apprehended ex 48 L.Ed.2d 788 United States had him and found the 153, (3d Sielaff, rel. Land v. 564 F.2d 155 n.2 plaintiff “contempt” hearing in in a 1977); Tyrrell v. ex rel. Cir. Speaker, United States judge complaining in which as wit- the served 823, 1976). (3d 535 F.2d 827-29 Cir. factfinder, ness, prosecutor, judge. We “judicial judge’s actions were not held that the prior caselaw clear from our It should be they in were not undertaken con- acts” because may far removed be so that an official’s actions any pending nection with matter then before duties, ordinary so out- course of his from the judge, they did arise from a the and neither act, discretionary authority to even his side capacity. judge to his official visit the his establish entitlement that the official cannot Therefore, judge not to claim the was entitled instance; yet immunity in first claim liability immunity 1983 that § absolute from may sufficient nexus between there a judges. normally There was no is afforded complained-of position con- and the official’s however, question, judge’s actions that satisfy color of state 1983’s “under § duct law” color of state that were undertaken under case requirement. In this situation the defend- officer, defendant not been a state law: had the immunity may 1983 § to no ant be entitled position engage would not have been in a he liability whatsoever. was of which he accused. conduct Merckle, example, Harper F.2d v. 638 For bar, question In the at there case stopped (5th 1981), plaintiff had 848 Cir. conduct, under either his Norman’s judge inquire where the chambers of a state surrounding version of the events child-support or Barker’s payments his should forward seizure, property apartment judge search and needed that he his wife. The decided parte plaintiff law. place of state oath an ex was undertaken under color under 1122 faith, good gal

rule nonfeasance as well mis- concept reaches as would make the feasance. It does not insulate an official qualified immunity meaningless embel- a who, although possessed actual lishment. harm, malice or intent is so derelict in 603 F.2d at 1183. must his duties that he be treated as if he qualified immunity 2. Balias’ de in fact desired the harmful results of his liability. fense to Bivens Second Cir —The time, however, inaction. At the same held in cuit Bivens v. Unknown Named Six requires plaintiff test that a show that Narcotics, Agents of the Federal Bureau action, although the official’s labeled as (on (2d 1972) re 456 F.2d 1339 Cir. “reckless” or “grossly negligent,” falls on 388, 1999, mand from 403 91 29 U.S. S.Ct. terms, the actual intent side of those (1971)), police L.Ed.2d 619 a officer than simple negli- rather side of could assert to Bivens-type defense gence. constitutional tort claim entitlement Bogard, 586 F.2d at 412.19 See also Crowe qualified immunity based his reasona Lucas, 985, 989, (5th 595 F.2d 990 Cir. ble, good-faith belief conduct 1979); Beto, Cruz v. 603 F.2d qualified lawful. The rationale behind (5th 1979); Vasquez Snow, Cir. 616 F.2d immunity is essentially same (5th 1980); Jones, Cir. Douthit v. qualified immunity behind the from section supra, 534-35; City at Walters v. liability available to state offi Springs, of Ocean 626 F.2d 1322-23 previous opinions cials. Some this court 1980). generally Nahmod, See S. qualified have treated availa 8.03, supra, 8.12. §§ Bivens-type being ble in cases as functional Clark, Judge writing Charles our equivalent ly to that available in section Beto,

court in Cruz v. supra, explained the See, Short, g., 1983 cases. e. Reimer v. rationale behind this allocation the bur- supra, Supreme 578 F.2d at 626-27. The persuasion: dens of adopted approach Court same hold The underlying pervades policy which Economou, ing in Butz v. 438 U.S. every immunity analysis is one 496-504, 2894, 2905, L.Ed.2d 895 of protecting public by its permitting (1978), that enjoy federal officials the same decision-makers to function fear without protection alleged they zone when are that an exercise of might discretion have violated federal rules constitutional retrospect [Citing be found to be error. do state officials. Economou, Butz v. supra, and Pierson v. Ray, supra.] If an official can show that Propriety Summary Judgments B. of questionable were actions taken in [the] Qualified Based Immunity De- regular of discharging course his offi- fense duties, therefore, cial policy this affords him 1. liability. General considerations. —We deny To him immunity protection begin proposition with the familiar unless goes reviewing further and grant summary judgment, demonstrates that his a actions were above the benchmark le- court light will look at the record in the 1042, 1983, n.11, (1978); 19. For certain 98 S.Ct. 1049 causes action under 55 L.Ed.2d 252 § Holmes, part may Shillingford 263, (5th malicious intent on the defendant’s be v. F.2d 266 634 just qualified immunity not 1981). relevant fense, to the City Newport de Cir. But cf. v. Fact depriva Concerts, -, but to Inc., 2748, whether there has been a -U.S. 101 S.Ct. See, right. g., tion of (1981) (municipalities constitutional e. Reeves L.Ed.2d 616 not liable 69 City Jackson, 644, (5th v. 608 punitive F.2d 650 damages 1983). Cir. § under Malice 1979) (warrantless and may malicious arrest important based also be in a different —albeit the probable liberty, on no cause and violates sense of that word—in context of defama 1983). may hence § Malice also be relevant against government tion actions Note, officials. See determining propriety punitive damages. Immunity for Federal Officials: Qualified Green, 14, n.9, See Carlson v. 446 21-22 U.S. & Cases, Proposed A Standard for Defamation 58 1468, n.11, 100 S.Ct. 1473 & 64 15 L.Ed.2d (1980). L.Rev. 789 Texas (1980); Carey 247, 11, Piphus, v. 435 U.S. 257 n.

1123 omitted). (footnote F.2d at Fur 622 123 party opposing to the most favorable ther, affirmatively show motion, favor- the affidavits must drawing inferences most all testify as to the g., competence E. Poller v. Colum- the affiants’ party. able to 464, Inc., facts Broadcasting 368 U.S. stated therein and that System, bia matters (1962); 473, 486, 491, L.Ed.2d 458 are on the in the affidavits based 82 S.Ct. stated Beckham, Lines, v. personal knowledge. Tank Inc. Id. Fed. O’Boyle affiants’ See 1980); v. (5th 56(e). Walters Cir. R.Civ.P. 1317, 1322 626 F.2d City Springs, of Ocean before summa emphasize We summary judg- (5th 1980) (reviewing Cir. must be judgment proper, it first ry claim). we are Yet ment on section 1983 of action precisely what causes determined Court’s.comments Supreme mindful of are thus and what issues have been asserted Economou, 438 U.S. 98 S.Ct. in Butz complaint by any by either raised (1978): 57 L.Ed.2d 895 one or regardless of whether defenses — quickly can be ter- lawsuits Insubstantial se. In parties proceeding pro more are by courts alert to the minated federal complicated patterns involve fact cases that pleading. of artful Unless possibilities action, summary multiple causes complaint compensable claim states may proper as to some causes Constitution, the Federal for relief under others, some but or as to of action not as not a motion to dismiss. it should survive others, some but not or as to issues Moreover, damage concerning ... suits others; necessary not parties but as to proceed need constitutional violations not judg summary for a on a predicate decision trial, prop- but be terminated on a can sorting out causes of ment motion judg- supported erly motion may require This action defendants. [qualified] based defense of ment on the patience, par the court to exercise Job-like a mo- immunity. responding such pro dealing plaintiffs when se ticularly tion, plaintiffs play dog not may reasoning may legal lack skills who Fed- manger; application firm nuances court’s attention focus the Rules of Procedure will ensure eral Civil claims; further, counsel for the of their by that federal officials are harassed it may shortsightedly think defendant frivolous lawsuits. remain of his client to the best interests 507-08, (footnote Id. at at left when a claim is unaddressed. silent omitted). recently As we said in Nonetheless, citation anal a careful and meticulous Watson, 622 F.2d Gordon ultimately by parties, ysis —first 1980), significantly court —will aid the district judicial private and de- the waste of [s]ummary judgment preventing is an excellent and time. make resources may vice which district courts expedited of those dispositions [section Two threshold issues.—Once be cases in which a trial would 1983] out, the are sorted there parties and claims summary judgment is fruitless. When should, for two threshold issues that are or inappropriate supporting the because the separated be from conceptual purposes, dis- opposing improper, are the materials qualified applicability of the of a question ample court to call trict has discretion seem The first would immunity defense. defects, remedy parties the the upon of genuine a issue obvious: Is there rather submitting affidavits or otherwise. of objective conduct fact as to the material We also noted in that case that issue in If resolution of the defendant? the proceedings turns summary judgment litigants held to [although pro are not se did, rather actually with what the defendant compliance same on standards immu- defendant is applied on whether the pleading or rules than

formal technical actually for liability attorneys, never allowed such nized what we have conflicting versions did, if there are judgments litigants oppose summary conduct, establish of which would one by the use of materials. unsworn 1124 States,20 Constitution summary judgment then liability, the case of the the other defeat then United is proper. See Parratt is for inappropriate summary judgment on Taylor,-U.S.-, 1908, v. 101 S.Ct. 68 engage did basis that the defendant not (1981); McCollan, L.Ed.2d 420 v. Baker 443 rights. plaintiff’s of the conduct violative 99 61 U.S. L.Ed.2d 433 mean, however, This does that a de- not (1979). Compare City York v. Cedar pretermit question fendant cannot town, 1981); (5th 648 F.2d 231 Hernan Cir. engaged complained-of whether he in the City Lafayette, (5th dez v. F.2d 643 1188 present conduct in order instead the 1981); Cir. Suthoff County v. Yazoo Indus qualified immunity point issue. There is no Development Corp., (5th trial F.2d 337 in going to to determine trial whether the 1981); Holmes, Shillingford Cir. v. engaged complained-of officer in the con- (5th 1981) (cases finding F.2d 263 Cir. duct if the officer would be immunized plaintiff had stated a valid claim of a from liability if he engage even did in that deprivation rights), of his constitutional conduct. States, v. Simon United F.2d too, emphasize, We that if the defendant (5th 1981); Turner, Cir. Greer beyond

has dispute established he did (5th 1981) (cases Cir. finding conduct, engage complained-of no valid claim of depriva a constitutional then summary judgment appropriate. A tion). whether, This is true no matter grounds, on these how- hand, complained-of the one conduct is ever, nothing qualified has to do with the by undisputed established facts or ad defense; rather, it is based on the arguendo, or, other, mission on the there is plaintiff’s inability prove the facts essen- a issue of fact as whether the e., tial to recovery that the officer acted —i. complained-of conduct occurred. This sum in a presumptively manner of the violative mary judgment qual would not be based on plaintiff’s See, rights. g., Broadway e. immunity grounds, ified but instead on the City of Montgomery, 530 F.2d 660-61 predicate lack a legally sufficient 1976) (summary judgment proper liability. section 1983 Bivens alleged section 1983 claim founded on illegal when wiretapping only summary Qualified immunity yet a third distinct judgment material relevant to factual issue issue. While it is complete defense to as to wiretapping whether actually occurred liability, section 1983 or it may Bivens be was incompetent hearsay testimony). proffered plaintiff either when the has es- engaged that the has tablished defendant may second distinct issue that conduct, complained-of and that conduct, arise is complained-of whether the plaintiff’s conduct violated the constitution- occurred, if it right in fact violated moment, rights, by skipping, al plaintiff. distinctly It is different over these still-contested matters to con- say that the conduct did not defendant effect, issue sider an that would moot their violate right plaintiff constitutional event, proved. analysis if In either say then to that the defendant’s conduct vio qualified proceed immunity defense must lated a right constitutional the de steps. two distinct fendant is immunized from liability by vir tue of a Again, official immunity. claim official Entitlement this does not mean that a defendant cannot immunity. First, it must determined — pretermit question of constitutional official, defendant, public whether deprivation in to proceed order analysis scope discretionary of his acted within under the qualified immunity doctrine. this, To establish there must be authority. But if the complained-of not, conduct would by a bald the defend more than assertion legal matter, as a amount to a violation of complained-of the actions were ant rights plaintiff secured under the pursuant performance of undertaken to the actions, distinguished of the 20. from Bi- der the Constitution or laws United 1983 as § Thiboutot, 1, actions, -type rights plaintiff Maine 448 U.S. vens States. v. 100 that the 2502, may (1980). protected seeks to un- 65 L.Ed.2d 555 vindicate those S.Ct.

1125 authority, prima he has a facie scope of his discre- made show- his duties and within showing ing be a that he is to claim official im- authority; there must entitled tionary proof munity. point, by summary judgment materials At this the burden competent plaintiff, who objective com- shifts to the cannot then circumstances that would “play dog manger,” -1 of Butz v. Econo- pel part that conclusion. See III-A mou, 508, supra. this 438 at 98 S.Ct. at To U.S. opinion, showing, prima rebut the defendant’s facie Exactly what will suffice estab plaintiff must come forward with con- will, objective lish circumstances such troverting judgment materials summary other in Douthit and the cases discussed competent to raise a issue fact vary —1 part suggest, pro III-A above in as to whether the defendant undertook the portion degree to the of discretion inherent complained-of pursuant per- to the conduct objective in the defendant’s office. Such scope his formance of duties within necessarily encompass circumstances must discretionary authority thereby of his rais- — the factual context within which the com ing genuine validity a issue of fact to the place. ap But plained-of conduct took also prima immunity. If facie case by propriate showing is a the defendant of prima showing is not rebutted facie relating of his scope facts to the official is, plaintiff, then the defendant as a g., showing a duties —e. of the circumstanc law, official matter of entitled claim through initially es which he came to be immunity from section 1983 or Bivens lia- authority lieve his lawful included Gerstein, 608 F.2d bility. See Henzel v. scope type within its actions of the that are (5th 1980); Wright A. 10 C. & 659 Cir. complained plaintiff. Eighth of by the The Miller, Federal Practice and Procedure following Circuit has made the remarks (1973). at 536-37 § concerning topic: this, itself, not mean that the But does grounds” paradigm of “reasonable If, prevail. ultimately will be- defendant good propriety a faith belief in the office, the de- of the nature of cause official action is reliance on a state stat (as opposed only qualified enjoys fendant See, ute unconstitutional. later declared absolute) immunity, plaintiff still has 547, 556-57, g., Ray, e. Pierson v. 386 U.S. part -1 opportunity, discussed III-A [1218], 288 18 L.Ed.2d S.Ct. above, im- to establish that defendant’s (1967). pro formal state Reliance less abrogated reasonable, munity should be because Eslinger may visions also be subjective Thomas, (4th malicious v. defendant harbored 476 F.2d or because the 1974) (longstanding plaintiff, intent harm custom the South known that Senate); Claybrone Thomp knew or should have Carolina defendant son, infringed (M.D.Ala.1973) (stan clearly established F.Supp. his actions plaintiff. prison), right This operating procedures dard constitutional may usually necessarily view a second police our officers means that there is rely operating procedures analysis based step on standard police immunity grounds. contained their manuals. 1320, 1327 Moats, n.14 Landrum qualification to the immu 4. The 912, 99 denied, Cir.), cert. 439 U.S. “good lack nity based on the defendant's (1978). 58 L.Ed.2d 258 the defendant has estab faith.” —Once official he is entitled claim present defendant has lished that Once the shifts immunity, the burden ed under Douthit competent materials that, uncontroverted, the immu plaintiff to establish that if would establish to the were, fact, either the objective nity should be breached because there circum subjective malicious harbored a compel stances which the conclusion that defendant known or he knew or should have eomplained-of conduct was undertaken intent clearly estab pursuant violated performance to the his duties actions plaintiff. right of the discretionary scope and within the of his lished constitutional genuine presence issue of fact as to the purposes, or For plaintiff may no again, means here the absence of that malicious intent to harm the longer upon unsupported allega- rest the plaintiff. only The direct evidence of a Instead, pleadings. tions must of his he mind, person’s course, state of of can come genuine a establish that there is issue of person’s from that statements —whether as to the defendant material fact whether stand, made on or off witness the e., de- “good lacked faith” —i. whether the before, during, whether made com- or after reasonably or have fendant knew should mitting complained-of the conduct. But a violating he known that was the constitu- may mind also defendant’s state of rights plaintiff, tional or the defend- circumstantially through objective proved maliciously plain- ant to harm the intended Indeed, and fre- evidence. factfinders can tiff. reject credibility grounds do the quently component the “good The first of faith” person’s of a state of only direct evidence issue—whether the defendant knew or rea- e., (i. statements) favor of mind his own sonably should have known under settled compelling contrary inferences that the law at the time he acted that he was violat- surrounding factfinder has drawn the ing plaintiff’s rights the constitutional objective circumstances. —is obviously susceptible objective more proof means of component than the second component As to this second issue, issue, which to do de- has with the “good plaintiff’s faith” it is the subjective fendant’s state of mind. burden raise a triable issue of fact as to requires first component plaintiff to the defendant’s malicious intent once the raise, through competent summary judg- defendant has established that he is entitled materials, ment issue of as to fact official the com claim because what the at settled law was the time of the plained-of pursu conduct was undertaken conduct, defendant’s and whether the de- discretionary authority. ant to his As a fendant knew or have that should known matter, plaintiff practical may meet his conformity conduct was not in that with raising fact as burden a triable issue of course, bright settled law. Of are there either to the defendant’s malicious intent in deciding lines for whether law’s treat- ways: competent may of two he introduce ment particular given conduct at any materials, summary judgment point or “settled,” time was neither are there summary judgment already in materials bright for deciding lines whether an official record, prove directly that would tend should have known under settled that law subjective acted that the defendant plaintiff’s conduct violated the constitu- or, competent malice)21 may he introduce rights. tional materials, summary judgment point or

Although already component the second materials in the good record, depends circumstantially faith issue that the defend would tend mind, ant’s subjective prove state of it mali does defendant acted with follow necessarily there is always cious intent.22 Relatively surrounding 21. with the circumstances types different direct evidence of the defendant’s consist, might police prison guard example, state of of claims. mind for case, brutality example, severity of a statements the defendant to others he plaintiffs physical injuries might get” plaintiff, such an was raise “out or that dis- he Or, example, disapproved plaintiff. inference. such an inference liked or Other might might arise from evidence that the defendant such spontaneous evidence take form of hostile persons prejudiced against plain- utterances defendant as sex, race, religion, complained-of tiffs etc. of mo- Evidence committed the ously, conduct. Obvi- however, might give great many also rise to an tive inference in a cases such plaintiff example, simply if the and the malice—for evidence will not be available. unpleasant dealings had defendant something support past, plaintiff Indirect evidence would cir- if the had done cumstantially might prompted mali- the inference that the have defendant the defendant plaintiff vary harbored malice toward the will cious retaliation.

1127 judgment summary granted can be on an plaintiff point nothing If the can of involves state mind.23 subjective belief that claim that other than his own issue or cases, however, express him harm —if fails grave defendant intended doubts Other objective circumstances any resolving articulate appropriateness about the such serve a rational basis from judgment.24 that could questions through summary In factfinder could infer that de bar, which a attempt need not the case at we rather than fendant acted out of malice prob- provide solution to this a definitive duty not raised a plaintiff has explained part IY—B—lof lem: as below —then triable issue fact as the defendant’s objective opinion, this circumstances intent, judgment is summary malicious easily allow upon which Barker relies could ‘a proper. complete there is absence “[I]f that Norman a factfinder infer Officer probative support particular facts’ to intent, and, given acted with malicious oth- inference, or, if facts ‘the and inferences case, present er sum- circumstances overwhelmingly point strongly so in mary judgment that issue therefore was on party favor of one believes Court improper. could reasonable men not arrive at verdict,’ may bypass the court [but one] IV. OF THE LAW APPLICATION TO Co., jury.” Superior Nunez v. 572 Oil F.2d THE OF CASE FACTS THIS 1119, (5th 1978) (second bracketed 1124 Cir. court; by omitted) Nunez cite portion Failure to Plead A. Norman’s judgment on (reviewing grant summary Qualified Immunity state of involved defendant’s issue that purporting create mind). part we above in III-A —1 As noted “[E]vidence too incredible immunity doubts as to facts qualified an opinion, of this will not minds accepted pleaded be reasonable be defense that must affirmative Wright summary judgment.” 10 C. prevent protections. seeks its by the defendant who Miller, And, A. Federal Practice and Procedure 1-B of part & we above this noted extreme, 2727, (1973). of this pleadings at 551 Short does opinion, in none of Offi § however, summary properly may judgment that he is entitled to cer Norman assert granted liability on a of mind issue? immunity state un qualified claim ground Yet this was the der section 1983. cases, including some from A number granted sum upon the district court which circuit, and from Supreme Court mary judgment in his favor. judg- summary grants have affirmed Nonetheless, postjudgment mo- Barker’s without dis- actions in section 1983 ment protest the the district court did not tions in problem of when cussing in detail holding Obviously, official impossible catalog defendant federal it is the ob- jective absolute, only support qualified, circumstances that rather than could entitled malice; examples part grounds summary immunity, inference of listed herein on are no means exhaustive. judgment inappropriate is an means deter- 555, mind); Navarette, involving g., mining state of 23. v. 434 U.S. factual issues E. Procunier - 855, Inc., -, (1978); Pitney-Bowes, 55 24 v. U.S. L.Ed.2d Benson Hardin v. 1980), (9th Hightower, pet’n 2345, (Rehn- (1981) Cir. 68 L.Ed.2d 861 101 S.Ct. 12, filed, 1981) (May J., for cert. (no. 80-1811); 49 U.S.L.W. 3840 quist, dissenting of certiorari on from denial City v. of Ocean erroneously Walters appeals grounds that court of 1980); (5th Springs, 626 Henzel F.2d 1317 Cir. judgment grant summary in a affirmed the Gerstein, 1980); (5th v. White F.2d 654 Cir. mind). turning upon Cf. Rebozo state case 1976); (4th Boyle, Backer, v. Tritsis 538 F.2d 1077 Cir. Co., Washington 637 F.2d 380-82 v. Post 1974). (7th v. 501 F.2d 1021 Cir. 1981) summary judgment (discussing Cir. MacDonald, Compare v. 596 F.2d Maiorana context of a on of “actual malice” in the issue (1st 1979) (affirming grant Co., 1076-81 suit); Superior Oil Nunez defamation ignoring of procedural summary good because even supra (discussing plaintiffs controverting defects in delay pay rentals oil and in failure to faith materials, there was no issue of fact as Miller, supra, lease); Wright gas & A. C. malice), to defendants’ lack of Butz (discussing judg- § at 590-600 Economou, 438 U.S. at at 2921 98 S.Ct. generally). mind issues ment on state of J., dissenting majority’s (Rehnquist, from the bar, supplying however, district court’s action in the case at sua sponte allegations attempt defense for in his to controvert Of- Norman; summary judgment ficer Norman’s Officer neither did Barker claim motion specific were surprise nonconclusory. If prejudice or he had Officer Norman’s properly introduced a verified plead fact, failure to affidavit that defense. from Keller that contained the same factual argued appeal Barker has not that Offi- allegations, such an certainly affidavit cer Norman waived genu- would have been sufficient to raise a by failing defense plead argue to it. ine issue of material fact as to whether Instead, Barker argument confines his to Keller apartment consented to the search question of whether there remained a and as to whether she identified items in- genuine issue of material fact that would apartment being side the proper- as stolen preclude summary judgment under Rule 56. ty.25 If she did not consent to the search or Accordingly, we deem Barker to have identify property, items as stolen waived arguments whatever might have turn genuine would raise a issue of fact as made to the effect summary judgment to whether Officer Norman acted with mal- in Officer Norman’s behalf improper ice and whether he knew or should have because Officer pleaded Norman had not violating known that he was Barker’s clear- qualified immunity. ly rights. established constitutional Fur- ther, after the summary court rendered B. The Search and Seizure Claims him, judgment against post- Barker filed a Norman, judgment 1. apart motion for reconsideration that search, ment included a property transcription telephone and the of a con- seizure.—Of ficer allegedly Norman’s versation he summary judgment with Keller in motion basically argues which she reconfirmed her version there was no violation surrounding apartment events Barker’s Fourth rights Amendment search property though the search of seizure. Even apartment Barker and the seizure himself transcription, various verified this items it is in- therein: Officer Norman competent form; hearsay present contends that its Keller’s legitimated consent nonetheless, search, quite it conceivable that description and that her summary judgment Barker’s crude materi- seized items having as gave been stolen him als accurately reflect probable Keller’s version of cause to believe that the items so, events. If that be then Barker were, fact, may well stolen property. vig Barker have a meritorious claim on this cause of orously denied that Keller either consented action. stolen; or described the items as yet Bark er’s summary own judgment materials dem Watson, As quoted we said in Gordon v. onstrate that he personal has no knowledge part above in opinion, III-B-I of this of the encounter apartment, at the since he summary judgment is inappropri- “[w]hen present, was not purported and the state supporting ate because the opposing ma- ments of Keller incorporated that he in his terials improper, are the district court has

own affidavits and pleadings verified are ample upon discretion to call parties incompetent hearsay 56(e). under Rule defects, remedy the by submitting affida- Under circumstances, therefore, normal we vits or (empha- otherwise.” 622 F.2d at 123 would be bound accept as true Officer added). precise sis Given the factual cir- Norman’s version of the case, events that sur cumstances of this we believe that the rounded apartment search and prop district court abused its failing discretion in erty seizure. meaningful to afford opportunity Barker a Although personal it is not clear from the some of those events from her record knowl- exactly part so, played edge; properly by what Barker’s mother If verified affidavit her surrounding apartment might events search raise a issue of material fact as property seizure, may and the it well be that to some or all of those events. competent testify she would be to at least failing its abuse discretion in afford defects in his sum- remedy the obvious remedy opportunity de-

mary judgment materials.26 fects in his materials. regard Accordingly, we hold that with Officer Norman’s mate- apartment issues in the search and three rials are sufficient establish that his ac- against of action Of- property seizure causes tions, even under Barker’s version of ficer Officer Norman Norman—whether events, pursuant were undertaken complained of engaged in the conduct performance of his within the duties and Barker, whether conduct violated authority. scope discretionary of his Kel- rights, Barker’s constitutional and whether Barker, events, version ler’s related immunity official Officer Norman’s should nothing to do with has whether be breached because he either harbored a to official im- Norman was entitled claim subjective to harm Barker or knew intent (/. e., acting munity whether he was within known his vio- should have conduct scope discretionary authority of a the his clearly constitu- lated Barker’s established police officer). Neither in the district court rights tional district court’s abuse of —the appeal suggested nor on has Barker failing its to afford Barker a discretion objective circumstances that would tend to remedy the de- meaningful opportunity controvert Officer Norman’s demonstration summary judgment fects in his materials summary judgment his materials that must judgment means that its be reversed. been, may they whatever his actions have given opportunity Barker must be the were as an exercise of the dis- undertaken genuine a issue fact to these raise of performance him in the of cretion accorded questions through competent materials un- police his duties as a detective. There be- 56(e). der We intimate views as to Rule no ing genuine no issue of fact toas whether summary judgment ap- whether would be Officer Norman’s actions were undertaken if, propriate on or more of these issues one pursuant performance to the of his duties remand, present compe- on Barker fails to scope discretionary within of his materials; and however, controverting tent we of sum- authority, grant the district court’s Watson, reiterate our in Gordon v. assertion judgment respect with to this issue is mary 123, analysis 622 F.2d at that in the final affirmed. litigants [pro “we have se never allowed successfully] oppose judgment summary a is now on Barker raise The burden incompetent] by the use of unsworn [or genuine fact as to whether Officer issue of materials.” immunity qualified official Norman’s

However, apartment regard liability 1983 with to another issue— section should property is and seizure claims whether Officer Norman entitled claim search so, breached; these a because he be if fails do official by immunity, acting scope within will foreclosed discre- claims be disputed tionary authority regardless district court did not of the existence of —the requirements notice opportunity him fair of the 26. Such an could be afforded well summary judgment through rule. We stress need the court’s comments the context of hearing argu- sufficiently a in which the court receives oral form notice for a understandable motion; summary judgment litigant’s] pro ment on a a dis- se to one circumstances [the however, judge, required required.”); fairly trict is neither nor apprise him of what is permitted any party, Garrison, accord, to become counsel v. F.2d 310 Roseboro 528 pro party appearing Coleman, (4th whether is se or 1978). See Cir. also Whitaker counsel, through precise nature (5th 1940) (“Summary 115 F.2d 307 Cir. opportunity pro litigant remedy given a se penny judgment contrivance to is not catch lies, defects in his materials litigants deprive unwary its into toils take course, in the sound of the district discretion ”); Corp. v. them of a trial .... Brunswick court. 1967) Vineberg, 612 Cir. F.2d Hardy, (“Summary weapon Hudson judgment Cf. is a lethal (D.C. 1968) (“[B]efore entering summary targets its be mindful of aims courts must judgment against pro litigant], use.”). se the District [a its of overkill in and beware Court, minimum, [provide] as a bare should doctrine, however, whether That questions of fact as to the com- an affirmative occurred, or plained-of disputed pleaded conduct defense that must the de- questions fendant legal gener- as to whether that conduct who seeks assert it. See Miller, rights ally to Barker & A. Wright violated secured C. Federal Prac- (1973). Agent tice Constitution or laws of United and Procedure § States. yet Balias Norman have not and Officer Balias, Agent apartment pleaded estoppel; collateral neither have search, property Agent and the seizure. — ground summary they urged it as support Balias’ affidavits in summary judgment, and district court did judgment clearly motion establish that he ground. there- base its decision on that We prior no contemporaneous knowledge reviewing fore do it in not consider apartment search Houston. He grant the coerced has established there is genuine plea cause of action. issue of fact as to participated whether he in, encouraged, or conspired to commit the dispositive ques The first —and — apartment search. same is true as to The tion is whether there issue the seizure of the car and items from the fact as to en whether two defendants apartment. Barker introduced no contro gaged complained-of conduct. verting materials, summary judgment com only arguable support the record petent or incompetent. sug Neither has he allegation Barker’s bald that the defend gested appeal any on that evidence exists conspired ants coerce pleading to him into might Agent that controvert Balias’ affida guilty portion is that of Barker’s verified Accordingly, existing record, vits. on the complaint purports quote he wherein to summary judgment Agent Balias’ favor by what says given he was affidavit appropriate was on search and seizure plea Keller in the Kansas withdrawal hear causes of action —not on ing. this purported quotation Even were grounds, genuine but because was no there competent from an affidavit for Rule 56 issue of fact engaged as to whether he not, purposes being hearsay— is it —which complained-of conduct. The rationale this, alone, we do that standing not believe court, by the used district if not the labels it genuine would be sufficient raise a issue conclusions, applied to its strongly suggest of fact as to whether the en defendants that this was in fact the basis for its deci gaged alleged conspiracy. in the if Even all sion, and we ground. affirm on that by suggested facts Barker were ad by deposition, duced they affidavit would C. The Coerced Plea Claim show no more that than Officer Norman alleges Barker that Agent cooperated the com Balias with AUSA Balias, bined actions of Agent strongest possible Officer Nor Miller to build the case man, operated against AUSA Miller suggestion coerce is no Barker. There entering plea him into guilty a to the evidentiary by Kan material which Barker appears might sas firearms This prove Agent violation. to be Officer Norman or precisely argument the same engaged complained-of that he Balias in the con urged e., no trying success—in to with conspiracy duct —i. to overcome Bark —with guilty draw his plea. deprive Barker v. See United er’s free will Barker fair of a States, (10th 1978). 579 F.2d plead 1219 Cir. trial coercing guilty. Col him Bark estoppel lateral may in some pleadings circumstances er’s ma civil rights terials, bar competent 56(e) claims whose central issues whether for Rule prior not, have been purposes determined in criminal are insufficient to raise a proceeding. McCurry, See Allen v. 449 fact on they issue this claim because contain 90, 411, nothing allegations U.S. 101 S.Ct. 66 L.Ed.2d 308 more “bare all than (1980); compare Delcambre, ‘conspired’ Martin v. deprive 578 the defendants him (5th F.2d 1164 1978), Courtney rights,” Cir. v. of his Ger constitutional Henzel v. Reeves, 326, (5th stein, 654, 635 1981). (5th 1980). F.2d 329 Cir. 608 659 F.2d Cir.

1131 in his record, Officer Norman admits answers this and on circumstances these fact material issue of genuine requests is no for admissions that there had en- defendant to whether either as property possession of some still has Ac- conduct. gaged complained-of apartment. was seized from Barker’s grant summary cordingly, we affirm As also true with cause action both defendants judgment in favor of seizure, discrepancy there is some initial action, though grounds not on this cause property listed between qualified immunity. unlawfully having been retained and retaining. Norman admits which Officer Property Retention Claim D. The Moreover, fact as there is a issue of and the 1. Officer Norman has demanded whether Barker ever case law in property retention claim. —Our Barker asserts in his ver- property’s return: by police continued retention dicates that has complaint that Officer Norman ified property, as allegedly stolen dis officers of property; yet refused to return proper seizure of that tinct from initial Norman’s affidavit implication Officer may in some consti ty, circumstances requests for admissions and answers Short, deprivation. Reimer v. tutional See return Norman has offered to that Officer 621, (5th 1978), cert. 578 F.2d 628-29 Cir. demanded property, but Barker never denied, 1425, 99 59 440 U.S. S.Ct. Norman its and in fact told Officer Shaw, return Clayton (1979); 548 L.Ed.2d 635 denied, get property did care to (5th Cir.), that he not F.2d cert. U.S. (1977); therefore, judgment, 54 L.Ed.2d could Summary back. Short, granted Snell rec- properly have been 1977). argue Norman did not in the- ground genu- that there ord on the district court Norman ine issue to whether Officer granted should be because the retention complained-of engaged in the conduct. apartment from the was property seized Further, is if Barker’s version the facts not a violation of Barker’s constitutional stage correct, at this as must be assumed indeed, rights; he nor the district neither genuinely disputed, those facts are because distinguished court this cause action that Officer Nor- by it no means obvious is arising original from seizure. that from infringed not man’s conduct has thing say it is that Officer Obviously, one rights.27 civil seizing proper justified Norman was ty place, entirely first another to regard to Norman’s With it say justified retaining he was that immunity from official entitlement to claim set of possibly under different circum action, cause of liability on this section if it stances that existed when and became proffered for justification he has the sole going was be property clear that the not it he believes property keeping and Barker against used as evidence than this asser- been stolen. Other to have demanded its return. although prisoner made, because § ble under Arguments 27. effect could be deprived property example, argument under color of state was For could however. law, process process deprivation was without due made that there is no denial of due not alleged prison property faulty to have an officer to retain was not of law: the loss due procedures, provided process has been stolen until after the claimant availed and state law provided by state prisoner himself of mechanisms af- which the could obtain redress property. Atlanta, fact); law to establish his entitlement to the City 647 F.2d Jonas ter (Ver- 47.01 See Tex.Code Crim.Pro. Ann. art. 1981) [slip op. 7901-02] 1979). non authority (defendant police lacked officers matter, comply express opinion they We failed to detain seized car because is, course, argument proceedings such an available to state forfeiture therefore, created with law; Tay- they Officer Norman on remand. Parratt from Cf. not insulated were - lor, -, they grounds 68 L.Ed.2d liability U.S. not § 1983 (1981) (defendant prison negligent rights). plaintiffs’ officials’ violated hobby prisoner’s loss of materials actiona- tion, objective grants summary judgment he has established no circum- insofar as it stances from which one could conclude plea that Officer Norman’s favor on the coerced property judgment retention was under- cause of action. We affirm the pursuant performance taken to the of his insofar as it holds that Officer Norman has scope authority. duties and within the of his established his entitlement to quali- claim a policeman’s We note that a duties in immunity these fied official respect to the analogous circumstances are apartment somewhat search property seizure custodian; jailer action; however, those of a because there causes we reverse the duties, is less discretion judgment inherent in these on those two causes of action under Douthit and the other cases genuine discussed insofar as it holds that there is no part opinion, above in III-A-I (1) of this issue of fact as to whether Officer Nor- showing conduct, Officer Norman must make to engaged complained-of man establish his immunity (2) entitlement to claim whether that conduct violated Barker’s higher for this cause of (3) action than for rights, constitutional whether Offi- apartment property search or initial cer Norman’s official should be seizure. We conclude that Officer Norman breached because he either harbored a sub- has not established jective his entitlement to claim intent to harm Barker or knew or official immunity liability for this should violating have known that he was action; pretermits cause of clearly second Barker’s established constitutional half immunity analysis, rights. which We reverse the in all has to do with good Officer Norman’s respects faith. grants summary judg- insofar as it Summary judgment in Officer Norman’s ment in favor of Officer Norman on the favor on this claim improper on this property retention cause of action. We re- record. mand proceedings for further consistent opinion with this on those claims and issues Agent Balias property and the as to which we reverse. We of course ex- retention claim.—As apart is true with the press no views as to the merits of the claims ment search and property seizure causes of remanding; as to which we are neither do action, part see TV-B-2 opinion, of this we intend to the possibility foreclose supra, Agent Balias’ summary judgment proper may be on all or materials establish that there is no part of the issues in each of these claims issue of fact as to whether had.any he has upon better-developed record. knowledge of or involvement in the reten n PART; AFFIRMED IN IN REVERSED tion Officer Norman of the property PART and REMANDED. seized from Barker’s apartment. Barker introduced no controverting summary judg GEE, Judge, concurring Circuit material, part

ment competent or incompetent, dissenting part: suggested has not even possible existence of such Summary judg material. Though struggled fully I have to concur Agent ment in Balias’ favor on this cause of opinion, the court’s admirable and useful was, therefore, action appropriate on the myself in the end I find at odds with one of ground that there was no issue of holdings, its only: and one the trial fact as to engaged whether he had judge failing abused his discretion in complained-of conduct. We affirm on that counsel opposi- Barker that his affidavit in ground. tion to motion for only insufficient because it advanced hear- V. CONCLUSION say dispositive points, Keller’s consent to conclusion, grounds we affirm on other apartment search and her judgment district court’s insofar as it description of items confiscated there as grants summary judgment Agent represented by Balias’ stolen. Had Barker been favor on all counsel, causes of action. We presenta- affirm on and had this fault in his grounds other appeared, judgment the district court’s I tion venture that the

H33 affirmed. against him would have been we as- Implicitly explicitly, would have FORT BEND INDEPENDENT SCHOOL hearsay because

sumed that counsel offered DISTRICT, al., Plaintiffs-Appellees, et not nothing to offer: could he had better witness, procure her not locate could effect, whatever. to the desired al., affidavit STAFFORD, OF et CITY Defendants-Appellants. impulse respect generous I special prompts my siblings grant 80 - 1635. No. and, litigant indulgence pro as such as a se one, the law of evidence. unfamiliar with Appeals, United States Court of justice Nor I in the case is do doubt Fifth Circuit. well, Well very it is. thereby; served Unit, A But the of justice for the short run. run long one, according is a and I law doubt July by offering it well served incentives how, pro do litigation. se Nor I see once is cast in role for judge of counsel litigant respect se in one and re- pro failing for to ascertain that role and versed it, easily steps can

embrace we cut

slippery slope onto which we have ad- hearsay When is testified to in a

vanced.1 se, example, judge pro

trial must objection, it,

henceforth exclude absent pain of reversal? litigation necessary

Pro se accommo-

dation to constitutional demands and to

those of fairness were there no constitution. such,

As it must be countenanced. But to

encourage it, in a time when few causes of none, merit,

arguable and some little or champion by writing special

want a trained favoring

rules it seems to me unwise. Pro litigants

se seldom fail to advise us of their

ignorance of correspond- the law and their

ing indulgence; special need for the claim is prisoners’

a familiar se pro introduction petitions rights complaints

civil ha- credit, so,

beas. To his Barker did do

but he has received it at our hands even so. Scrooge I

The role of is one that assume begin

unhappily, once we confect

general set of rules more favorable those proceed

who counsel than to those without do, principled way

who I know

stop. begin. I not To this small would

degree, I remainder of dissent. As disposition, gladly

the court’s I concur. counsel, me. judge he did not that troubles I error because 1. Had the trial volunteered his placing It him would be concerned. notes Kansas, already no additional pending in 120, 123 (5th 1980); Cir. Runnels 622 F.2d charges be filed.7 should Rosendale, 734 n.1 was asked to admit that Officer Norman Telephone 1974); Fowler v. Southern Bell was following statement Barker the Co., 150, 154 (5th Cir. Telegraph 343 F.2d & any property you[r] now in true: “That verified 1965). To the extent that Barker’s having belonged Wayne once to possession for complaint satisfies the other standards prior not to suit Ernest Barker has this 56(e), then, Rule we affidavits as set out in to him.” Officer been offered returned equiva to an shall consider it have effect this Norman refuses to admit the truth of opposition to that of an affidavit in lent statement; then, necessary implication, and Norman’s sum Agent Balias’ Officer suit, point prior that some mary judgment motions. at Norman, an offer to according to Officer B. Admissions and Affi- Officer Norman’s been property return the to Barker had Story davit: Another Side Finally, made. Officer Norman admits that Norman answered Barker’s com- Officer engaged had in conversations with feder- he plaint Shortly general with a denial. there- recordings agents regarding tape al after, requests filed a number of Barker apart- he had seized from Barker’s that of fact. Norman’s veri- admissions Officer ment, but the nature of the conversations following: response fied admits the Officer nowhere detailed. apartment Norman had entered Barker’s at the invitation of Kel- November Norman’s motion Attached to Officer ler, only person who was the there. He did ampli- that judgment is affidavit brought not have a warrant. He seized and upon version of the facts as slightly fies police tape tapes, station twelve one requests set out in the answers Barker’s equipment, recorder and some associated Norman testifies in for admissions. Officer walkie-talkies, pair three and binocu- visiting purpose his affidavit that having He lars. denies seized one of the investigate apartment had been telephone pickup cassette recorders and a marijuana report had that Barker hauled coil that Barker had described his com- illegal weapons from Dallas Houston and plaint, and admits that he had turned over he previous night; did intend telephone phone company the seized to the arrests, He any property. nor seize make illegally had verifying after it been door, identified apartment knocked on the also installed. He admits that seized officer, invited police and was himself as opinions legal notes and had been returned inside, Keller While to enter Keller. picked up to Barker when had Norman that she moved told Officer Volkswagen. told him that the about a week earlier. She that he Officer Norman further admits some tapes, a cassette recorder and cassette Volkswagen had searched the and had had walkie-talkies, equipment, three associated (1) away; only it was towed this after: proper- pair were stolen and a of binoculars had him Keller told the car had mari- plain view. Offi- ty. The items were all trunk; juana (2) shotgun he its was, “It affidavit states: cer Norman’s registered determined car had that the is, property none my Duncanville, belief to & H Tex- G Contractors as; Additionally, (3) belonged plaintiff Barker. he had checked with assist- charges also Regarding phone filed. Officer Norman admits conversation with attor- by phone, Knoff, ney having at which he talked to Barker John Officer Norman admits charges during would tn time he told Barker talked Knoff at some time investi- Volkswagen pick up any charges gation. inquired if were filed and that could Knoff had search, being papers. and the as a result of the filed

Case Details

Case Name: Wayne Ernest Barker v. Ben Norman and Jack Ballas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 30, 1981

Citation: 651 F.2d 1107

Docket Number: 80-1288

Court Abbreviation: 5th Cir.