Lott v. City of Lubbock, TX ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-10447
____________________
AARON LOTT, JR.,
Plaintiff - Appellant,
versus
CITY OF LUBBOCK, TX; BOB CASS, Individually; KEN WALKER,
Individually; C. POWE, Individually; TOM MANN, Individually,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:97-CV-259)
_________________________________________________________________
June 18, 1999
Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The linchpin to this appeal by Aaron Lott, a former City of
Lubbock employee, from an adverse summary judgment in his civil
rights action involving the City’s investigation, on hiring him,
of his criminal records is whether, in the light of Lott’s consent
to obtaining such records, he has waived his claim to a
constitutional right of privacy in a public criminal record.
Concluding that he has, we AFFIRM.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The City hired Lott as a senior programming analyst in May
1996. This position required use of the City police department
computer system and the Texas Law Enforcement Telecommunications
System (TLETS).
Just after Lott began work, the City police department
investigated Lott in order to authorize his access to the TLETS
system. Lott completed a personal history information sheet, which
asked:
Have you ever been arrested, charged with a
criminal offense, questioned as a possible
suspect in a criminal investigation or
otherwise detained by the police for any
reason other than a traffic violation?
Lott checked “No” and listed “N/A” in the 12 blanks that followed.
The form also included an authorization for the release of
extensive background information, which Lott signed:
I hereby request and authorize you to furnish
the LUBBOCK POLICE DEPARTMENT with any and all
information they may request concerning [,
among other records,] my ... criminal record
.... This authorization is specifically
intended to include any and all information of
a confidential or privileged nature as well as
photocopies of such documents if requested.
The police department obtained Lott’s FBI identification record,
which indicated a 1974 Kansas conviction and fine for possession of
marijuana and a 1975 Colorado felony charge for sale of narcotics
(the record did not indicate the removal of the charge after
deferred adjudication).
After the police department investiated the conflicts between
Lott’s statements and the records, he was suspended for five days
for dishonesty. And, he was not authorized to use TLETS. The City
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Manager upheld the suspension after a grievance hearing in June
1997. That same month, Lott was terminated for unrelated reasons.
In this action, claims were raised pursuant to 42 U.S.C. §
1983 and state law against the City, the City Manager, and police
department members who conducted the investigation. Under § 1983,
Lott claimed a constitutional right to privacy in his criminal
record and a violation of the procedure specified under 28 C.F.R.
§ 50.12, which requires that information obtained through FBI
records and used against an applicant be presented to the applicant
to review and correct.
Summary judgment was granted for the defendants, on the basis
that 28 C.F.R. § 50.12 creates no private right of action. Lott’s
state law claims were implicitly dismissed for lack of
jurisdiction.
II.
Lott does not question the rejection of a private right of
action under 28 C.F.R. § 50.12. Nor does he cite, much less rely
on, § 50.12, or the procedure required by it, in claiming error.
Instead, citing Woodland v. City of Houston, 940 F.2d 134 (5th
Cir. 1991), and Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978),
Lott asserts that “[t]he District Court should have performed the
[constitutional] balancing test and determined as a matter of law
whether the government’s compelling interest in the information it
obtained overcame [Lott’s] reasonable expectation of privacy”.
Lott does not, however, respond to Appellees’ alternative point
that his signed authorization waived this claimed privacy right.
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We review a summary judgment de novo, applying the same
standard as the district court. E.g., OHM Remediation Services v.
Evans Cooperage Co., Inc., 116 F.3d 1574, 1579 (5th Cir. 1997).
Such judgment is appropriate where “there is no genuine issue as to
any material fact and ... the moving party is entitled to a
judgment as a matter of law”. FED. R. CIV. P. 56(c).
Several of our sister circuits have held that criminal
histories are matters of public record in which no constitutional
privacy interests exist. See Scheetz v. The Morning Call, Inc., 946
F.2d 202, 207 (3rd Cir. 1991), cert. denied, 502 U.S. 1095 (1992)
(“the information contained in a police report is not protected by
the confidentiality branch of the constitutional right of
privacy”); Fraternal Order of Police, Lodge No. 5 v. City of
Philadelphia, 812 F.2d 105, 117 (3rd Cir. 1987) (“because arrests
are by definition public, and because it is unlikely that anyone
could have a reasonable expectation that an arrest will remain
private information, we hold that arrest records are not entitled
to privacy protection and we need not engage in the balancing
analysis”); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.), cert.
denied, 519 U.S. 1008 (1996) (“there is no privacy interest in
one's criminal record that is protected by the United States
Constitution”); Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996)
(“the type of information contained within ... criminal history
files is not the sort of data over which an individual can
successfully assert a right to privacy”); Nilson v. Layton City, 45
F.3d 369, 372 (10th Cir. 1995)(“Information readily available to
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the public is not protected by the constitutional right to privacy.
Consequently, government disclosures of arrest records, judicial
proceedings, and information contained in police reports do not
implicate the right to privacy.”) (citations omitted). Accord
White v. Thomas, 660 F.2d 680, 686 (5th Cir. 1981), cert. denied,
455 U.S. 1027 (1982) (“Any rights that might have grown out of an
expungement order ... are not ... privacy rights entitled to
constitutional protection”).
But, it is more than well-established that we do not address
a constitutional issue if the case can be resolved on another
basis. E.g., ACORN v. Edwards, 81 F.3d 1387, 1390 (5th Cir. 1996).
That is the situation at hand.
Although Appellees raised the waiver issue in district court
as a basis for summary judgment, and Lott responded to it, the
court did not address it. Of course, we can uphold a summary
judgment on a point not addressed by the district court, so long as
the point was raised as part of the summary judgment record. E.g.,
United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).
Appellees reassert the waiver point here; but, unlike in
district court, Lott does not respond. In short, any claimed
privacy interest was waived by his signing the authorization form.
Summary judgment was proper.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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