Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms , 401 F.3d 419 ( 2005 )


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  •                           RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 05a0130p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    KEITH B. BARANSKI, d/b/a MAGUA INDUSTRIES
    Plaintiffs-Appellants, -
    and PARS INTERNATIONAL CORPORATION,
    -
    -
    Nos. 03-5582/5614
    ,
    v.                                           >
    -
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    ALCOHOL, TOBACCO AND FIREARMS, BRIAN DIXON, -
    FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF
    -
    -
    MICHAEL R. JOHNSON, DOUGLAS R. DAWSON,
    -
    MARK S. JAMES, KARL L. STANKOVIC, WILLIAM J.
    -
    HOOVER,
    Defendants, -
    -
    -
    Defendant-Appellee. -
    UNITED STATES OF AMERICA,
    -
    -
    N
    Appeal from the United States District Court
    for the Western District of Kentucky at Louisville.
    No. 01-00398—John G. Heyburn II, Chief District Judge.
    Argued: October 28, 2004
    Decided and Filed: March 14, 2005
    Before: KEITH, CLAY, and COOK, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for
    Appellants. Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville,
    Kentucky, for Appellee. ON BRIEF: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh,
    Louisville, Kentucky, for Appellants. Terry M. Cushing, Candace G. Hill, John E. Kuhn, Jr.,
    ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.
    CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. COOK, J. (pp.
    17-18), delivered a separate opinion concurring in part and dissenting in part.
    1
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 2
    _________________
    OPINION
    _________________
    CLAY, Circuit Judge. Plaintiffs Keith B. Baranski and Pars International Corporation
    (“Pars”) appeal the March 14, 2003 order of the district court holding that Defendants Fifteen
    Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and six named ATF
    agents were entitled to qualified immunity because (1) Plaintiffs suffered no Fourth Amendment
    violation by virtue of the alleged lack of particularity in the search warrant that Defendants used to
    seize hundreds of firearms and accessories owned by Baranski and stored by Pars; and (2) the facts
    did not show that Defendants violated a clearly established constitutional right pursuant to Harlow
    v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982). Plaintiffs also appeal the court’s holding that Plaintiffs’
    action for damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971), would necessarily imply the invalidity of Baranski’s criminal conviction related
    to the importation of the firearms and, therefore, must be dismissed pursuant to Heck v. Humphrey,
    
    512 U.S. 477
    (1994). For the reasons that follow, we REVERSE the district court’s holding with
    regard to qualified immunity and AFFIRM, in part, and REVERSE, in part, the district court’s
    dismissal of Plaintiffs’ Bivens claims pursuant to Heck v. Humphrey.
    I.
    A.     Substantive Facts
    Plaintiff Keith Baranski is a citizen of Ohio who does business as Magua Industries, which
    imports firearms and ammunition pursuant to a Federal Firearms License issued by the ATF.
    Plaintiff Pars, a Kentucky corporation, is a tenant of a multiple occupancy commercial structure
    located at 509 Cheyenne Avenue, Louisville, Kentucky. The ATF has issued Pars a Federal
    Firearms License to import firearms and ammunition. Pars is the custodian of a U.S. Customs High
    Security Bonded Warehouse (“CBW”) located at 509 Cheyenne Avenue. The U.S. Customs Service
    has approved the warehouse for the storage of firearms covered by the National Firearms Act
    (“NFA”), 26 U.S.C. § 5845. Pars routinely receives merchandise from various licensed importers
    of NFA firearms for storage at its warehouse, and Pars also performs customs broker services on
    behalf of other importers. On various dates between October and December 2000, the Customs
    Service authorized Baranski to lawfully enter into the United States approximately 421 firearms and
    accessories from Bulgaria and Poland and store them in Pars’s storage facility.
    On January 16, 2001, ATF Agents Brian Dixon and Michael Johnson, named defendants
    in this lawsuit, interrogated Baranski. They asked about his relationship with another Federal
    Firearms Licensee, Vic’s Gun Corporation, and then served him with a grand jury subpoena.
    On April 10, 2001, Agent Johnson applied to U.S. Magistrate Judge Cleveland Gambill of
    the Western District of Kentucky for a search and seizure warrant for Pars’s storage facility. The
    application for search warrant described the place to be searched as follows:
    Pars International - Two story tan colored concrete construction building with
    narrow security windows. Marked “509” above front glass door. A sign indicating
    that the facility is a “Customs Bonded Warehouse” is posted on the door. Located
    at 509 Cheyenne Avenue, Louisville, Kentucky.
    The description of the person or property to be seized stated, “See Attached Affidavit.” As to the
    basis for the search and seizure, the application stated, “See Attached Affidavit.” As to the facts
    supporting a finding of probable cause, the application stated, “SEE attached Affidavit.”
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 3
    The attached affidavit was that of Agent Johnson, who indicated that he has been employed
    with the ATF for over 10 years and has participated in over 200 criminal firearm investigations.
    Johnson averred that, after a six-month investigation, there was probable cause to show that Plaintiff
    Baranski conspired with James Carmi and others to import law enforcement restricted machine guns
    for resale to Carmi and possibly others, in violation of 18 U.S.C. § 922(o); 26 U.S.C. § 5844; and
    26 U.S.C. § 5861(1). Agent Johnson stated that the machine guns at issue were being stored at Pars,
    a Customs Bonded Warehouse, located at 509 Cheyenne Avenue, Louisville, Kentucky.
    Johnson elaborated that Carmi, a previously convicted felon, assumed a false identity in
    order to operate a federally licensed firearms business called Vic’s Gun Corporation. Pursuant to
    an ATF investigation of Vic’s, Carmi was discovered with over 700 machine guns and firearms.
    Seized documents suggested a relationship between Carmi and Baranski. (Carmi subsequently was
    indicted in the United States District Court for the Eastern District of Missouri.)
    Johnson’s affidavit further explained that Baranski imported about 500 machine guns
    ostensibly as dealer samples for sale to law enforcement, which 18 U.S.C. § 922(o) permits. By
    January 2001, Baranski had removed at least 49 firearms from Pars’s Custom Bonded Warehouse
    after submitting letters purportedly from the Farber, Missouri, police chief requesting a
    demonstration of the machine guns. The affidavit recounted an interview in which Baranski told
    Johnson that Carmi had agreed to pay Baranski for the firearms and that about 425 machine guns
    remained at Pars’s warehouse. The affidavit also recounted Agent Johnson’s interview with the
    Farber, Missouri, police chief who had explained that he had fraudulently composed the letters with
    the expectation of remuneration, that he had no knowledge of Baranski’s firearms company, and that
    he had no intention of receiving a machine gun demonstration from Baranski. Documents seized
    from Carmi, and later Carmi himself, confirmed that Carmi had acted as an intercessor between
    Baranski and the police chief to obtain fraudulent police demonstration request letters in order to
    remove machine guns from Pars’s warehouse.
    Agent Johnson’s affidavit concluded as follows:
    I have probable cause to believe that a large number of law enforcement restricted
    machineguns were fraudulently imported into the United States with the intention of
    further being distributed and sold to others involved in the conspiracy. I also have
    probable cause to believe that the machine guns in question are currently being
    stored at the Pars International Custom’s Bonded warehouse, 509 Cheyenne Avenue,
    Louisville, Kentucky.
    Later in the morning of April 10, 2001, Magistrate Judge Gambill granted Agent Johnson’s
    application for a search warrant. The warrant, like the application, described the property or
    premises as follows:
    Pars International - Two story tan colored concrete construction building with
    narrow security windows. Marked “509” above front glass door. A sign indicating
    that the facility is a “Customs Bonded Warehouse” is posted on the door. Located
    at 509 Cheyenne Avenue, Louisville, Kentucky.
    The warrant indicated that “there is now concealed a certain person or property, namely … See
    Attached Affidavit.” The magistrate judge ordered the application for the search warrant and the
    supporting affidavit to be sealed.
    On April 11, 2001, approximately 21 ATF agents, armed with the warrant, demanded
    entrance into 509 Cheyenne Avenue, where Pars’s storage facility is located. The agents were
    greeted by Saeid Shafizadeh, who managed the facility. Shafizadeh requested to see the affidavit
    referenced in the search warrant but that was not attached to it. ATF Agent (and individual
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                             Page 4
    defendant) Karl Stankovic responded that the affidavit was part of the court records, which were
    sealed. Agent Johnson allegedly stated that the warrant was for the entire two-story building and
    that unless Shafizadeh directed the agents to Baranski’s property, they would search the entire
    building. Shafizadeh then asked Customs’ Port Director, Frank Dupre, to read the warrant, and
    Dupre stated that, according to the warrant, the place to be searched was the Customs Bonded
    Warehouse. Customs Inspector James Thompson indicated that the warehouse was located in the
    basement of the building. Shafizadeh insisted that the warrant was defective without a description
    of what was to be seized and indicated that his acquiescence to let the agents enter the building was
    not voluntary.
    Shafizadeh directed the agents to a secured vault in the basement of the building, which he
    identified as the Custom Bonded Warehouse portion of the building. Shafizadeh identified the
    section of the vault for firearms imported and owned by Baranski. Defendants seized Baranski’s
    372 firearms and 12 wooden crates containing firearm parts. The ATF agents did not search or
    inspect any other portion of the vault, the warehouse, or building.
    On July 3, 2002, Baranski was indicted by a grand jury sitting in the United States District
    Court for the Eastern District of Missouri. Baranski was charged with conspiracy to import machine
    guns by making knowingly false entries on applications and other records, in violation of 26 U.S.C.
    § 5861(l). The indictment further pled criminal forfeiture of the machine guns that were the subject
    of the conspiracy count, pursuant to 28 U.S.C. § 2461(c).
    After entertaining pre-trial motions in Baranski’s criminal proceeding, the district court in
    Missouri granted in part Baranski’s motion in limine concerning the 372 machine guns seized from
    Pars. The court held:
    The Court does not necessarily believe that the machine guns are relevant as
    evidence under Rule 401. Moreover, any probative value is outweighed by the
    danger of unfair prejudice. Finally, the display of 372 machine guns in the
    courtroom seems excessive. Therefore the Court will allow the display of several
    machine guns in the courtroom and/or photographs of same.
    The court, however, denied Baranski’s motion to suppress the machine guns and the 12 crates seized
    from Pars. The court held that Baranski had not demonstrated that the statements in Agent
    Johnson’s affidavits were false or how the statements affected the probable cause determination.
    The court also found that the facts in the affidavit were sufficient to support probable cause for a
    conspiracy or that the seized weapons were imported with an intent to sell to one of the co-
    conspirators.
    A jury found Baranski guilty as charged on the sole count of the indictment on November 18,
    2002. On February 27, 2003, the court sentenced Baranski to 60 months’ imprisonment followed
    by three years of supervised release. The district court also ordered the forfeiture of the 372
    machine guns and 12 crates seized from Pars and incorporated the forfeiture order into Baranski’s
    judgment of conviction.
    As to the forfeiture, the court found: “Not only did the evidence clearly establish that the
    seized weapons were covered by the fraudulent law enforcement letters, but the Government’s
    evidence at trial clearly established by at least a preponderance of the evidence that the defendant,
    as part of the conspiracy, intended on selling all of the weapons in the CBW to his co-conspirator,
    James Carmi.” Thus, the court found that the guns and accessories described in the indictment were
    “property used or intended to be used in a manner to facilitate the commission of the crime for which
    defendant was convicted.” The district court ordered the United States to publish notice of the order
    and its intent to dispose of the property in such a manner as the Secretary of Treasury may direct.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                               Page 5
    The order provided the right to any person, other than Baranski, to assert a legal interest in the
    property and petition for a hearing on his or her claim. Counsel for Pars received notice of the
    forfeiture and its right to assert a legal interest in the machine guns.
    On September 23, 2003, the U.S. Court of Appeals for the Eighth Circuit affirmed Baranski’s
    conviction and sentence. United States v. Baranski, No. 03-1575, 
    2003 WL 22176185
    (8th Cir. Sep.
    23, 2003). The court found that the district court had properly denied Baranski’s motion to suppress
    “because there was probable cause for issuance of the warrant regardless of the alleged errors.” 
    Id. at *1
    (citing United States v. Briscoe, 
    317 F.3d 906
    , 907 (8th Cir. 2003)). The court further held that
    “[t]he warrant should not have been suppressed for lack of particularity” because “the warrant
    referred to a sealed affidavit that described the weapons.” 
    Id. (citing United
    States v. Cherna, 
    184 F.3d 403
    , 412-14 (5th Cir. 1999)). The court added that, assuming the weapons should have been
    suppressed at trial, their admission was harmless error because the documents and testimony proved
    the government’s case. 
    Id. The court
    also affirmed the forfeiture order, finding that the evidence
    supported the district court’s finding that the weapons were intended to be used to commit or
    facilitate the commission of the charged crime. 
    Id. at *2
    (citing 21 U.S.C. § 853(a)(2)).
    B.     Procedural History
    On July 5, 2001, Plaintiffs Baranski and Pars International filed a complaint in federal
    district court against fifteen unknown named agents of the ATF, six named individual ATF agents,
    and the United States. Invoking the First, Fourth, and Fifth Amendments to the U.S. Constitution,
    Plaintiffs sought an order unsealing the affidavit of the search; an order suppressing the unlawfully
    seized evidence; an injunction compelling the return of seized firearms; and compensatory and
    punitive damages. The complaint alleged that Defendants’ purported constitutional violations had
    “placed [Baranski] in an economically disadvantaged position in relation to his competitors who are
    directly benefitting from the actions of the defendants, and the absence of [Baranski] from [sic]
    marketplace,” and had “impaired plaintiffs’ ability to earn a lawful income from legitimate
    activities.” Citing Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971), Plaintiffs alleged that Defendants violated their Fourth and Fifth Amendment rights under
    the U.S. Constitution. Plaintiffs also alleged state law claims for trespass, tort, and defamation.
    On March 22, 2002, the district court granted the United States’ motion to be substituted as
    the sole party defendant to Plaintiff’s state law tort claims, pursuant to the Federal Tort Claims Act,
    28 U.S.C. § 2679(d)(1), and to dismiss these claims against the individual named defendants. The
    court dismissed Plaintiffs’ request for return of the seized firearms and ammunition on the ground
    that the government already had initiated forfeiture proceedings and Plaintiffs’ were contesting the
    forfeiture. As such, Plaintiffs could not seek either return of the property or compensation for it
    through a separate federal action. The court also dismissed Plaintiffs’ state law claims because they
    had not exhausted their administrative remedies under the Federal Tort Claims Act. The court
    denied the motion to dismiss Plaintiff’s claim to unseal the affidavit supporting the search and
    seizure warrant, which was premised on alleged violations of the First and Fourth Amendments. The
    court also stayed Plaintiff’s Bivens claims, premised on the Fourth and Fifth Amendments, against
    the named and unnamed agents for three months.
    On November 22, 2002, the court lifted the stay on the case and granted Pars’s motion to
    unseal the application and supporting affidavit of the search and seizure warrant in Baranski’s
    criminal case. The court set a briefing schedule on Defendants’ assertion of qualified immunity.
    On March 14, 2003, the court found that Defendants were entitled to qualified immunity
    because (1) Plaintiffs suffered no Fourth Amendment violation by virtue of the alleged lack of
    particularity in the search warrant; and (2) the facts did not show that Defendants violated a clearly
    established constitutional right per Harlow v. 
    Fitzgerald, supra
    . The court also found no basis in
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                               Page 6
    Plaintiffs’ Fifth Amendment due process claim stemming from the government’s seizure of the
    machine guns and related accessories. Last, the court noted that a finding in favor of Plaintiffs on
    their Bivens action would undermine the finding of the magistrate judge in Baranski’s criminal
    proceeding that the ATF agents had a good faith basis to believe that the warrant that they executed
    was valid even though it lacked specificity. The court also observed that the Bivens action would
    be “inconsistent with a federal judge’s decision to forfeit these machine guns as being used in the
    commission of a federal conspiracy crime.” As a collateral attack on Baranski’s conviction and the
    various court rulings that led to it, a Bivens action would run afoul of Heck v. 
    Humphrey, supra
    . The
    court dismissed all of Plaintiffs’ claims with prejudice.
    Plaintiffs now appeal the dismissal of their Bivens claims premised on alleged violations of
    the Fourth Amendment. Plaintiffs have not appealed the district court’s dismissal of their state law
    claims for trespass, tort, and defamation or the court’s dismissal of their Fifth Amendment Bivens
    claims; we therefore deem any challenge to the district court’s dismissal of these claims waived.
    II.
    The Fourth Amendment to the U.S. Constitution protects people and their houses, papers,
    and effects from “unreasonable searches and seizures” and provides that “no Warrants shall issue,
    but upon probable cause, supported by Oath or affirmation, and particularly describing the place to
    be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. Regarding the Fourth
    Amendment’s particularity requirement, this Court has observed that “[g]eneral warrants, by failing
    to describe particularly the things to be seized, create a danger of unlimited discretion in the
    executing officer’s determination of what is subject to seizure and a danger that items will be seized
    when the warrant refers to other items.” United States v. Savoca, 
    761 F.2d 292
    , 298-99 (6th Cir.
    1985) (citing Andresen v. Maryland, 
    427 U.S. 463
    , 480 (1976)). “A particular warrant also assures
    the individual whose property is searched or seized of the lawful authority of the executing officer,
    his need to search, and the limits of his power to search.” Groh v. Ramirez, 
    540 U.S. 551
    , 561
    (2004) (internal quotation marks and citations omitted). “The uniformly applied rule is that a search
    conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth
    Amendment is unconstitutional.” Massachusetts v. Sheppard, 
    468 U.S. 981
    , 988 n.5 (1984)
    (citations omitted).
    In Bivens v. Six Unknown Named Agents of Federal Bureau of 
    Narcotics, supra
    , the plaintiff
    filed a complaint against agents of the Federal Bureau of Narcotics alleging that while acting under
    the color of federal authority, the agents conducted a warrantless search of the his apartment and
    arrested him without probable cause in violation of the Fourth Amendment. 
    Id. at 389-90.
    The
    Supreme Court held that the plaintiff could recover damages from the federal agents for the injuries
    that they allegedly inflicted on him in violation of the Fourth Amendment. 
    Id. at 392-97.
             In the instant case, ATF Agent Johnson applied for a search warrant for Pars’s storage
    facility and described the location of the facility as a tan, two-story building with a sign indicating
    that the facility is a “Customs Bonded Warehouse” and located at 509 Cheyenne Avenue, Louisville,
    Kentucky. Although the application did not describe the property to be seized, the attached
    affidavit, which the application incorporated by reference, referred to about 425 machine guns at
    Pars’s Custom Bonded Warehouse. The warrant, which the magistrate judge executed, similarly
    described the location of the facility containing the items to be seized. Like the application, the
    warrant did not describe the items to be seized, but referred to an attached affidavit. A copy of the
    attached affidavit was not provided to Pars at the time of the search and seizure; only the warrant
    was provided because the magistrate judge had sealed the affidavit. Plaintiffs have alleged Bivens
    claims against Defendant ATF Agents, asserting that the warrant upon which they relied did not
    comport with the particularity requirement of the Fourth Amendment as to (1) the items to be seized
    and (2) the place to be searched.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                  Page 7
    A.      Standard of Review
    This Court reviews de novo the district court’s ruling that a search warrant satisfied the
    Fourth Amendment’s particularity requirement. United States v. Gahagan, 
    865 F.2d 1490
    , 1496 (6th
    Cir. 1989).
    B.      Particularity of the Items to Be Seized
    The facts in this case are not materially distinguishable from the facts in Groh v. 
    Ramirez, supra
    . There, Jeff Groh, an ATF agent, applied for a warrant to search Joseph Ramirez’s ranch for
    a large stock of unregistered automatic rifles, grenades, a grenade launcher, and a rocket launcher.
    Groh supported his application for a warrant with a detailed affidavit that set forth the basis for his
    belief that the items were on the ranch. A magistrate judge signed the warrant form after reviewing
    the application and the affidavit. The warrant, however, was not specific regarding the place to be
    searched or the contraband to be 
    seized. 540 U.S. at 554
    . The description of the property to be
    seized indicated only a description of the location where the property could be found, and the
    warrant did not incorporate by reference the itemized list contained in the application. 
    Id. at 554-55.
    When the ATF agents searched Ramirez’s home, they left him a copy of the search warrant, but not
    a copy of the application, which had been sealed. 
    Id. at 555.
            The Court held that the warrant “was plainly invalid.” 
    Id. at 557.
    The warrant was deficient
    as to the Fourth Amendment’s particularity requirement because it provided no description of the
    type of evidence sought. 
    Id. It did
    not describe the items to be seized at all, but only provided a
    description of the residence where the items allegedly could be found. 
    Id. The Court
    further held that “[t]he fact that the application adequately described the ‘things
    to be seized’ [did] not save the warrant from its facial invalidity.” 
    Id. (emphasis in
    original). “The
    Fourth Amendment by its terms requires particularity in the warrant, not in the supporting
    documents.” 
    Id. (citations omitted).
    The Court condoned the practice of construing a warrant in
    conjunction with a supporting application or affidavit, but only if (1) “the warrant uses appropriate
    words of incorporation” and (2) “the supporting document accompanies the warrant.” 
    Id. at 557-58
    (citations omitted). The Court, however, refused to consider Groh’s argument that the warrant
    incorporated the particulars in the application and affidavit because “the warrant did not incorporate
    other documents by reference, nor did either the affidavit or the application (which had been placed
    under seal) accompany the warrant.” 
    Id. at 558.
    Because Groh “did not have in his possession a
    warrant particularly describing the things he intended to seize, proceeding with the search was
    clearly ‘unreasonable’ under the Fourth Amendment.” 
    Id. at 563.
             The Court further held that Groh was not entitled to qualified immunity for conducting a
    search based on the defective warrant. 
    Id. at 563-64.
    “Given that the particularity requirement is
    set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly
    did not comply with that requirement was valid.” 
    Id. (citing Harlow
    v. Fitzgerald, 
    457 U.S. 800
    ,
    818-19 (1982)). “[E]ven a cursory reading of the warrant … – perhaps just a simple glance – would
    have revealed a glaring deficiency that any reasonable police officer would have known was
    constitutionally fatal.” 
    Id. at 564.
    And, because Groh prepared the invalid warrant, he could not
    argue that he reasonably relied on the magistrate judge’s assurance that the warrant was sufficiently
    particular and, therefore, valid. 
    Id. The Groh
    decision makes it clear that the warrant that Agent Johnson procured for the search
    of Pars’s warehouse was plainly invalid. As in Groh, the warrant was deficient as to the Fourth
    Amendment’s particularity requirement because it provided no description of the type of evidence
    sought. It did not describe the items to be seized at all, referring only to the building where the items
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                 Page 8
    allegedly could be found. Indeed, in Baranski’s criminal prosecution, the government conceded that
    the warrant lacked particularity as to the items to be seized.
    The fact that Agent Johnson’s application and affidavit adequately described the things to
    be seized (i.e., 425 machine guns) does not change the result because “[t]he Fourth Amendment by
    its terms requires particularity in the warrant, not in the supporting documents.” 
    Id. at 557
    (citations
    omitted). Although the warrant used appropriate words of incorporation, the supporting documents
    that the warrant purported to incorporate did not accompany the warrant. Because Agent Johnson
    “did not have in his possession a warrant particularly describing the things he intended to seize,
    proceeding with the search was clearly ‘unreasonable’ under the Fourth Amendment.” 
    Id. at 563.
            Defendants counter that Groh does not provide any guidance on the circumstances under
    which an affidavit describing the items to be seized can be considered to have “accompanied” the
    warrant. We disagree. The Supreme Court explicitly held that a supporting affidavit must
    accompany the warrant and that the affidavit served on Ramirez did not accompany the warrant
    because the court had placed it under seal. It was not sufficient for Agent Groh to be subjectively
    aware of the particulars contained in the affidavit; those particulars had to be communicated through
    the warrant to Ramirez. See 
    Groh, 540 U.S. at 561
    (noting that one purpose of the particularity
    requirement is to “assure[] the individual whose property is searched or seized of the lawful
    authority of the executing officer, his need to search, and the limits of his power to search”); cf.
    Whren v. United States, 
    517 U.S. 806
    , 813 (1996) (“Subjective intentions [of the law enforcement
    officer] play no role in ordinary, probable-cause Fourth Amendment analysis.”). It follows, a
    fortiori, that it was not sufficient for Agent Johnson to be aware of the limits on his lawful authority
    under the warrant. Those particulars had to be communicated to the manager of Pars through the
    warrant or an attachment to the warrant. It is undisputed that they were not because, as in Groh, the
    affidavit that contained the particulars did not accompany the warrant at the time of the search and
    seizure.
    In light of the recent Groh decision, we do not find Defendants’ reliance on the Sixth
    Circuit’s decisions in United States v. 
    Gahagan, supra
    , and Frisby v. United States, 
    79 F.3d 29
    (6th
    Cir. 1996) to be dispositive of Plaintiffs’ underlying Fourth Amendment claim. Gahagan, like Groh,
    recognized that “[a] warrant that fails to describe the area to be searched with sufficient particularity
    can be cured by an accompanying affidavit if the affidavit is attached to the warrant and the warrant
    incorporates the affidavit by reference.” 
    Gahagan, 865 F.2d at 1497
    (citations omitted). In this
    case, it is undisputed that Agent Johnson’s supporting affidavit was not attached to the warrant.
    And, although the Court in Gahagan found that the particularity requirement was satisfied based on
    an unattached affidavit, in that case the affidavit was in one of the officer’s vehicles and therefore
    was readily accessible. 
    Id. In this
    case, there is no dispute that the affidavit, which was under seal,
    was not at the scene of the search and seizure and, therefore, it was not, and could not have been,
    readily accessible.
    Gahagan also is distinguishable because, there, the Court found that the warrant’s
    description of the location to be searched was “less than complete,” having stated the incorrect
    address 
    Id. at 1498.
    However, it was undisputed that the targeted property (a cabin) had no address
    marking and was located on the same property listed in the warrant. 
    Id. at 1493-94.
    Thus, the
    affidavit supporting the warrant, which did identify the targeted property, showed that “there was
    no risk … that a mistaken search of another premises was possible.” 
    Id. at 1498.
    In this case, the
    warrant to seize property at Pars was not “less than complete”; it was totally incomplete. It did not
    simply reflect an inaccurate description of the items to be seized; it contained no description
    whatsoever. The facts of this case are unlike Gahagan, where an unattached affidavit could be used
    to explain a description in the warrant, because the warrant for Baranski’s property provided no
    description at all.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                               Page 9
    Finally, to the extent that Gahagan announced a rule that facts known by the executing
    officer and the approving magistrate judge, but not specifically stated in the affidavit or warrant,
    automatically cures a facially defective warrant,1 we hold that Groh rejected such a rule. Groh
    categorically held that “[t]he Fourth Amendment by its terms requires particularity in the warrant,
    not in the supporting documents.” 
    Groh, 540 U.S. at 557
    (citations omitted). See also 
    id. at 564
    (holding that because the ATF Agent had prepared the invalid warrant, he could not argue that he
    reasonably relied on the magistrate judge’s assurance that the warrant was sufficiently particular
    and, therefore, valid).
    Frisby also is inapplicable to this case. In Frisby, the warrant incorporated by reference an
    “Attachment A,” which listed the items to be seized with 
    particularity. 79 F.3d at 31
    . At the time
    of the search, the officers “inadvertently” failed to provide a copy of Attachment A. Id.; see also
    
    id. at 32
    (noting that there was “no allegation that the failure to serve plaintiff with a copy of
    Attachment A was either intentional or deliberate”). Consequently, the Court found no Fourth
    Amendment violation. 
    Id. at 32.
    In the instant case, by contrast, Agent Johnson intentionally
    refused to provide a copy of his supporting affidavit, which described the particular items to be
    seized, because the affidavit was under seal. More fundamentally, Frisby did not challenge the
    validity of the warrant either as to the probable cause underlying the warrant “or the specificity with
    which the places to be searched or the things to be seized [were] enumerated.” 
    Id. at 31.
    Thus, we
    fail to see how Frisby has any bearing in this case, where the very issue is the validity of the warrant
    with regard to the specificity of the place to be searched and the things to be seized. For these
    reasons, we hold that the warrant upon which Defendants relied to search Pars’s warehouse and
    seize Baranski’s firearms and related accessories was constitutionally defective.
    C.       Particularity of the Place to Be Searched
    The warrant described the street address and color of the building and referred to a sign on
    the building that stated “Customs Bonded Warehouse.” Plaintiffs contend that the warrant was
    defective because its description of the building implied that the entire building was the object of
    the search. Plaintiffs point out that the warehouse does not occupy the entire building, only the
    basement.
    “The test for determining whether the description in the warrant is sufficient to satisfy the
    particularity requirement … [has] two components: (1) whether the place to be searched is described
    with sufficient particularity as to enable the executing officers to locate and identify the premises
    with reasonable effort; and (2) whether there is reasonable probability that some other premises may
    be mistakenly searched.” 
    Gahagan, 865 F.2d at 1497
    (citation omitted). Here, the description of
    the building assured that the executing officers could locate where the Customs Bonded Warehouse
    was with reasonable effort and to avoid mistakenly searching for the warehouse on some other
    premises. There is no evidence in this case that the agents searched anywhere other than the
    Customs Bonded Warehouse portion of the building that is identified in the warrant and to which
    1
    See 
    id. at 1499
    (“[W]e find that when one of the executing officers is the affiant who describes the property
    to the judge, and the judge finds probable cause to search the property as described by the affiant, and the search is
    confined to the areas which the affiant described, then the search, in this case, is in compliance with the fourth
    amendment.”). In an unpublished decision, this Court, following Gahagan, held that the Fourth Amendment was not
    violated when the warrant for firearms referred only to “attachment B” under the description of the items to be seized
    and attachment B was not served with the warrant because it was under seal. See United States v. Pritchett, 40 Fed.
    Appx. 901, 907 (6th Cir. July 9, 2002) (unpublished) (noting that the defendant was not prejudiced by the failure to
    receive attachment B with the warrant because (a) before the search began, the ATF agent told the defendant what they
    would be searching for; (b) the search was conducted in accordance with the warrant; (c) the officers provided the
    defendant with a receipt for the seized items; and (d) the affiant was in charge of executing the search, thereby
    minimizing the possibility of the search going beyond the scope of the warrant).
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                               Page 10
    the manager of the Pars warehouse directed the agents. Accordingly, although the warrant was
    defective on its face as to the items to be seized, it sufficiently described the place to be searched.
    D.       Qualified Immunity
    1.       Standard of review
    This Court conducts a de novo review of the district court’s determination that the ATF
    agents were entitled to qualified immunity. Stemler v. City of Florence, 
    126 F.3d 856
    , 866 (6th Cir.
    1997) (citing Barton v. Norrod, 
    106 F.3d 1289
    , 1293 (6th Cir. 1997)).
    2.       Analysis
    “[G]overnment officials performing discretionary functions generally are shielded from
    liability for civil damages insofar as their conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have known.” 
    Harlow, supra
    , 457 U.S.
    at 818. “It is not necessary that the very action have been previously held unlawful but, given the
    preexisting law, the unlawfulness of the conduct must have been apparent.” 
    Stemler, 126 F.3d at 866
    . “In determining whether an official is entitled to qualified immunity, this court asks whether
    the law was clearly established at the time of the alleged action.” 
    Id. (citing Barton,
    106 F.3d at
    1293). A federal right is “clearly established” where “any official in his position would have
    understood that he was under an affirmative duty to refrain from such conduct.” Doe v. Bowles, 
    254 F.3d 617
    , 620 (6th Cir. 2001) (internal quotation marks and citations omitted). In determining
    whether the officers should have known their actions were unlawful, this Court looks primarily to
    decisions of the Supreme Court, this court, and other courts within our circuit. 
    Stemler, 126 F.3d at 866
    (citing Cagle v. Gilley, 
    957 F.2d 1347
    , 1348 (6th Cir. 1992)).
    The recent Groh decision compels the conclusion that the Defendants2 are not entitled to
    qualified immunity for conducting a search based on the defective warrant. “Given that the
    particularity requirement is set forth in the text of the Constitution, no reasonable officer could
    believe that a warrant that plainly did not comply with that requirement was valid.” 
    Groh, 540 U.S. at 563-64
    (citing 
    Harlow, 457 U.S. at 818-19
    ). As in Groh, even “a cursory reading of the warrant
    … would have revealed a glaring deficiency that any reasonable police officer would have known
    was constitutionally fatal.” 
    Id. at 564.
    Moreover, because Agent Johnson prepared the invalid
    warrant, he cannot argue that he reasonably relied on the magistrate judge’s assurance that the
    warrant was sufficiently particular and, therefore, valid. 
    Id. Defendants correctly
    point out that the district court in Baranski’s criminal case (as affirmed
    by the Eighth Circuit) held that the “good-faith” exception3 applied to their actions in executing the
    2
    Defendants have not advanced separate qualified immunity arguments for each individual Defendant.
    Accordingly, we have treated them collectively for purposes of this analysis.
    3
    Although the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in
    reliance on an invalid warrant, United States v. Leon, 
    468 U.S. 897
    , 906 (1984), under the exclusionary rule, such
    evidence “cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” United States
    v. Calandra, 
    414 U.S. 338
    , 347 (1974) (citations omitted). Because the exclusionary rule is directed toward law
    enforcement officers, the Supreme Court has created a “good-faith” exception to the exclusionary rule, which permits
    the admission of evidence obtained in objectively reasonable, good-faith reliance on a subsequently invalidated search
    warrant. 
    Leon, 468 U.S. at 919
    n.20, 922; see also 
    id. at 923
    n.24 (“[O]ur good-faith inquiry is confined to the
    objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal
    despite the magistrate’s authorization.”). The good-faith exception would not apply where, for example, a warrant is
    “so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the
    executing officers cannot reasonably presume it to be valid.” 
    Id. at 923.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 11
    warrant. The decision in Groh, however, undermines the legal basis for that holding and requires
    this Court to reject Defendants’ assertion of qualified immunity because their reliance on such a
    facially defective warrant was not objectively reasonable. See 
    Groh, 540 U.S. at 565
    n.8 (noting that
    both the “good-faith” exception to the Fourth Amendment’s general exclusionary rule and the
    concept of qualified immunity apply the same standard of objective reasonableness) (citing Malley
    v. Briggs, 
    475 U.S. 335
    , 344 (1986)). We therefore reverse the district court’s holding that
    Defendants were entitled to qualified immunity.
    As the dissent correctly notes, prior decisions of this Court condoned the practice of serving
    facially defective warrants that cross-reference sealed affidavits identifying the items to be seized
    with particularity. See, e.g., discussion and cases cited at note 
    1, supra
    . We find it significant,
    however, that in Groh the Supreme Court denied qualified immunity for an agent who had
    specifically described the items to be seized in a sealed application for a warrant submitted to a
    magistrate, but not in the warrant itself, on the ground that executing the search with only the
    warrant in hand violated clearly established law as set forth in both the text of the Constitution and
    prior decisions of the Supreme Court. See 
    Groh, 540 U.S. at 563-65
    (noting that agent’s search
    premised on a facially defective warrant plainly did not comply with the Fourth Amendment’s
    particularity requirement, and the search was not justified by any of the exceptions that Supreme
    Court had crafted for warrantless searches). In so holding, the Supreme Court rejected the agent’s
    argument, echoed in the United States’ amicus brief, that qualified immunity was appropriate
    because “at the time petitioner acted, no controlling decision and indeed no decision by any court
    anywhere in the country had ruled that his actions were unlawful.” Petition for a Writ of Certiorari
    to the Ninth Circuit Court of Appeals at 8, Groh v. Ramirez, No. 02-811 (Nov. 22, 2002) (available
    at 
    2002 WL 32101201
    ) (emphasis in original); see also Reply Brief for Petitioner at 16, Groh v.
    Ramirez, No. 02-811 (Aug. 29, 2003) (available at 
    2003 WL 22068574
    ) (arguing that denial of
    qualified immunity would mean that, at the time of the search, the agent should have “prefigure[d]
    that a warrant which refers to the underlying affidavit information provided to the magistrate cannot
    be supplemented by reference to that documentation, still an issue that is hotly controverted among
    the circuit courts”); Brief for the United States as Amicus Curiae Supporting Petitioner at 24-25,
    Groh v. Ramirez, No. 02-811 (May 21, 2003) (available at 
    2003 WL 21209371
    ) (arguing that agent
    was entitled to qualified immunity because the rule that an affidavit must be both attached to the
    warrant and incorporated by reference in order to supplement the text of the warrant “has been
    rejected by most other circuits and its strict application is inconsistent in principle with numerous
    cases of this Court and the courts of appeals, including the Ninth Circuit, that have applied the
    particularity requirements of the Warrant Clause pragmatically, with regard to their purposes”).
    Accordingly, notwithstanding precedent from this Circuit that arguably justified Defendants’ actions
    at the time, we hold that Groh mandates a denial of qualified immunity.
    III.
    In Heck v. 
    Humphrey, supra
    , the Supreme Court held that actions under 42 U.S.C. § 1983,
    like civil tort actions, are not appropriate vehicles for challenging the validity of outstanding
    criminal 
    judgments. 512 U.S. at 486
    .
    Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must
    consider whether a judgment in favor of the plaintiff would necessarily imply the
    invalidity of his conviction or sentence; if it would, the complaint must be dismissed
    unless the plaintiff can demonstrate that the conviction or sentence has already been
    invalidated. But if the district court determines that the plaintiff’s action, even if
    successful, will not demonstrate the invalidity of any outstanding criminal judgment
    against the plaintiff, the action should be allowed to proceed, [footnote omitted] in
    the absence of some other bar to the suit. [footnote omitted]
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                Page 12
    
    Id. at 487
    (emphasis in original). In dictum, the Supreme Court explained the limitation of its
    holding:
    [A] suit for damages attributable to an allegedly unreasonable search may lie even
    if the challenged search produced evidence that was introduced in a state criminal
    trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of
    doctrines like independent source and inevitable discovery, see Murray v. United
    States, 
    487 U.S. 533
    , 539, 
    108 S. Ct. 2529
    , 2534, 
    101 L. Ed. 2d 472
    (1988), and
    especially harmless error, see Arizona v. Fulminante, 
    499 U.S. 279
    , 307-308, 111 S.
    Ct. 1246, 1263-1264, 
    113 L. Ed. 2d 302
    (1991), such a § 1983 action, even if
    successful, would not necessarily imply that the plaintiff's conviction was unlawful.
    
    Id. at 487
    n.7 (emphasis in original).
    The litigation bar of Heck applies with equal force to a civil rights action brought pursuant
    to Bivens. Robinson v. Jones, 
    142 F.3d 905
    , 906-07 (6th Cir. 1998). This Court applies a de novo
    standard of review to the district court’s determination that Plaintiffs’ Bivens claims are barred by
    Heck v. Humphrey. 
    Id. at 906.
            A hypothetical judgment in this litigation that the search of Pars’s warehouse and the seizure
    of Baranski’s machine guns was unconstitutional would not “necessarily imply” the invalidity of
    Baranski’s criminal conviction for conspiracy to illegally import machine guns. The district court
    in Baranski’s criminal case denied the motion to suppress the machine guns, but indicated that it
    did “not necessarily believe” that the machine guns were even relevant to the case. On appeal, the
    Eighth Circuit held that “[t]he warrant should not have been suppressed for lack of particularity”
    because “the warrant referred to a sealed affidavit that described the weapons,” Baranski, 
    2003 WL 22176185
    , at *1 (citing United States v. Cherna, 
    184 F.3d 403
    , 412-14 (5th Cir. 1999)), but added
    that even if the weapons should have been suppressed, their admission was harmless error because
    the documents and testimony proved the government’s case. 
    Id. Consequently, a
    judgment in this
    case that the search and seizure was unconstitutional would not necessarily imply the invalidity of
    Baranski’s conviction. Cf. 
    Heck, 512 U.S. at 487
    n.7 (opining that “a suit for damages attributable
    to an allegedly unreasonable search may lie even if the challenged search produced evidence that
    was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction
    … [b]ecause of doctrines like … harmless error[.]”) (citations omitted).
    The analysis does not end here, however, because Heck also requires dismissal of a lawsuit
    that would necessarily imply the invalidity of Baranski’s sentence or “any outstanding criminal
    judgment” against him. 
    Heck, 512 U.S. at 487
    . The district court entered an order of criminal
    forfeiture pursuant to the procedures set forth at 21 U.S.C. § 853 after finding that the guns and
    accessories described in the indictment were property used or intended to be used in a manner to
    facilitate the commission of the crime for which defendant was convicted. See 26 U.S.C. § 5872(a)
    (providing that “[a]ny firearm involved in any violation of the provisions of this chapter shall be
    subject to seizure and forfeiture”); 28 U.S.C. § 2461(c) (providing that where forfeiture of property
    is authorized by statute but no specific statutory provision is made for criminal forfeiture upon
    conviction, the government may include the forfeiture in the indictment and upon conviction, the
    court shall order the forfeiture of the property in accordance with the procedures set forth in 21
    U.S.C. § 853); 21 U.S.C. § 853 (providing that the court, “in imposing sentence,” shall order
    criminal forfeiture as to, inter alia, property used or intended to facilitate the commission of a
    crime). The Eighth Circuit affirmed the forfeiture order, holding that the evidence supported the
    district court’s finding that the weapons were intended to be used to commit or facilitate the
    commission of the charged crime. Baranski, 
    2003 WL 22176185
    , at *2 (citing 21 U.S.C.
    § 853(a)(2)).
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                             Page 13
    Because “[f]orfeiture is an element of the sentence imposed following conviction,” Libretti
    v. United States, 
    516 U.S. 29
    , 38-39 (1995) (emphasis omitted) (interpreting 21 U.S.C. § 853(a)),4
    Baranski seeks to impugn part of his criminal sentence by obtaining an injunction compelling the
    return of seized firearms, in direct contravention of the forfeiture order. Accordingly, Heck bars
    Baranski’s Bivens claim to the extent he seeks return of the forfeited machine guns.
    Baranski seeks more than just return of the weapons. His complaint requests damages
    resulting from the fact that the government’s seizure of the weapons placed him “in an economically
    disadvantaged position in relation to his competitors who are directly benefitting from the actions
    of the defendants, and the absence of [Baranski] from the marketplace.” (J.A. 22 (Complaint at
    ¶ 73)); see also 
    id. (“The taking
    [of Baranski’s machine guns in violation of the Fourth
    Amendment], has … impaired plaintiffs’ ability to earn a lawful income from legitimate activities
    for which they have been licensed and authorized by the United States Treasury.”); 
    id. at 35
    (prayer
    for relief at ¶ 5) (seeking general damages of $186,100). He also seeks compensatory damages for,
    inter alia, impairment of reputation and mental anguish, as well as punitive damages. See 
    id. at 35
    (prayer for relief at ¶ 7) (seeking compensatory damages for impairment of reputation, mental
    anguish, lost business opportunity as a result of Defendants’ actions, and loss of use of property);
    
    id. (prayer for
    relief at ¶ 9) (seeking punitive damages for constitutional violations).
    Heck bars Baranski’s Bivens claim to the extent he seeks damages for the lost economic
    value of the weapons, whether measured in terms of their appraised value at the time of the unlawful
    seizure or the potential value Baranski could have received for the weapons had he been able to sell
    them on the open market at some future time. An award of such damages would directly contravene
    the forfeiture order, which is premised on the assumption that Baranski no longer has proper title
    to, and therefore no continuing economic interest in, those weapons. The same logic applies to
    Baranski’s claim for damages premised on loss of use of the weapons. Because the forfeiture order
    determined that Baranski no longer owns the weapons, he cannot seek damages for loss of use of
    those weapons without running afoul of Heck.
    Baranski’s request for damages for his injured reputation and mental anguish, as well as his
    request for punitive damages, are different matters entirely. An award of such damages would not
    necessarily imply the invalidity of the criminal forfeiture order. The government knew about the
    existence and location of the forfeited weapons prior to their unlawful seizure from Pars’s
    warehouse because Baranski had told ATF Agent Johnson about them during an interview.
    Defendants could have sought and obtained an order forfeiting those weapons (as well as Baranski’s
    conviction) without seizing the weapons. Accordingly, the validity of the forfeiture order is not
    dependent upon the legality of the government’s seizure of those weapons. Cf. One 1958 Plymouth
    Sedan v. Commonwealth of Pennsylvania, 
    380 U.S. 693
    , 699-703 (1965) (reversing order forfeiting
    automobile used to transport untaxed liquor in violation of state law, because search of car
    potentially violated the Fourth Amendment and the state could not establish an illegal use of the car
    without using evidence resulting from the allegedly unconstitutional search). It follows that a
    judgment in this case that Defendants’ seizure of the weapons violated Baranski’s Fourth
    Amendment rights would not necessarily imply the validity of the forfeiture order. Further, no Heck
    problem arises, as long as Baranski is limited to recovering damages only for injuries that would not
    otherwise have arisen from the lawful forfeiture of his weapons. Although he cannot seek the
    replacement value of the weapons or lost profits due to his dispossession of the weapons, he can
    seek damages for impaired reputation and mental anguish as well as punitive damages attributable
    to the means by which Defendants effected the search and seizure. An award of damages for these
    4
    See also FED. R. CRIM. P. 32.2(b)(3) (“At sentencing…the order of forfeiture becomes final as to the defendant
    and must be made a part of the sentence and be included in the judgment.”).
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                  Page 14
    injuries would not necessarily imply the invalidity of the forfeiture order, the validity of which is
    entirely independent of the method of the search and seizure.
    Although Defendants also raise the Heck bar in opposition to Pars’s Bivens claim, we need
    not resort to Heck to the extent Pars seeks the return of the forfeited machine guns. See J.A. 35
    (Complaint, prayer for relief at ¶ 3) (requesting an order compelling the return of the machine guns
    to Pars’s warehouse). Pars was notified of the forfeiture proceedings in Baranski’s criminal case,
    and therefore Pars, as a third party, had the opportunity to assert a legal interest in Baranski’s
    firearms and petition the district court for a hearing to adjudicate the validity of its asserted interest.
    See FED. R. CRIM. P. 32.2(c)(1); 21 U.S.C. § 853(n)(2). The district court below noted that Pars had
    filed a claim of ownership in Baranski’s forfeiture proceedings in the Eastern District of Missouri,
    but there is no information in the Joint Appendix indicating what type of information, if any, Pars
    submitted to support its claim. Pars could have appealed an adverse decision in the forfeiture
    proceedings, separate and apart from Baranski’s right to appeal his criminal conviction and sentence.
    E.g., United States v. Harris, 
    246 F.3d 566
    , 567 (6th Cir. 2001); see also FED. R. CRIM. P. 32.2(c)(4)
    (“An ancillary proceeding is not part of sentencing.”). There is no indication in the record that Pars
    ever took such an appeal, and as best as we can tell, the forfeiture order became final, giving the
    United States clear title to Baranski’s firearms. FED. R. CRIM. P. 32.2(c)(2); 28 U.S.C. § 853(n)(7).
    Thus, Pars’s claim for return of the weapons is foreclosed by operation of the forfeiture statute, and
    Pars cannot now bring a collateral cause of action to again lay claim on Baranski’s firearms.
    Pars’s Bivens claim is not limited to a request for the return of the machine guns. Pars’s
    complaint also seeks compensatory and punitive damages directly related to the government’s
    seizure of those weapons. See J.A. 22 (Complaint at ¶ 73) (“The taking [of Baranski’s machine guns
    in violation of the Fourth Amendment], has … impaired plaintiffs’ ability to earn a lawful income
    from legitimate activities for which they have been licensed and authorized by the United States
    Treasury.”); 
    id. at 35
    (prayer for relief at ¶ 5) (seeking general damages of $186,100); 
    id. at 35
    (prayer for relief at ¶ 7) (seeking compensatory damages for impairment of reputation, lost business
    opportunity as a result of Defendants’ actions, and loss of use of property); 
    id. at 35
    (prayer for relief
    at ¶ 9) (seeking punitive damages for constitutional violations). Apart from Pars’s asserted
    ownership interest in Baranski’s firearms, Pars allegedly had contractual interests connected to those
    weapons as a bailee who expected compensation for storing them in its warehouse. Pars also
    allegedly had an interest in being free from unlawful governmental intrusions onto their property.
    Forfeiture proceedings, however, are not designed to compensate claimants for injuries to these
    types of interests. The forfeiture proceedings connected with Baranski’s criminal case could address
    only the proper disposition of Baranski’s firearms. See 26 U.S.C. § 5872(a). Pars would not have
    been permitted to intervene in those proceedings for any reason other than to stake a claim to those
    firearms. See 21 U.S.C. § 853(k)(1) (providing that “no party claiming an interest in property
    subject to forfeiture under … may… intervene in a trial or appeal of a criminal case involving the
    forfeiture of such property,” other than to assert a legal interest in the property subject to forfeiture).
    The question is whether Heck nevertheless bars Pars’s Bivens claim for compensatory and
    punitive damages. Heck involved an action under 42 U.S.C. § 1983 against county prosecutors and
    a state police investigator, seeking damages for their allegedly unconstitutional conduct that led to
    the plaintiff’s conviction. 
    Heck, 512 U.S. at 479
    . The Court held that “when a state prisoner seeks
    damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
    would necessarily imply the invalidity of his conviction or sentence[.]” 
    Id. at 487
    (emphasis added).
    The Court added that “if the district court determines that the plaintiff’s action, even if successful,
    will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
    action should be allowed to proceed[.]” 
    Id. (emphasis omitted
    and another emphasis added). The
    Court expressed particular concern over affording criminal defendants another opportunity to
    collaterally attack their criminal convictions. 
    Id. at 484-85
    (“This Court has long expressed …
    concerns for finality and consistency and has generally declined to expand opportunities for
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                               Page 15
    collateral attack[.]”) (citations omitted). Pars, however, is not a prisoner or a former prisoner, and
    a successful litigation would not demonstrate the invalidity of any outstanding criminal judgment
    against Pars. Thus, nothing in Heck contemplates extending the bar against civil damages actions
    to third parties like Pars, whose prior criminal judgments are not at issue.
    Moreover, extending Heck to Pars would be fundamentally unfair. As held above,
    Defendants searched Pars’s warehouse in reliance on a facially defective search warrant, and their
    reliance was not objectively reasonable. Yet, barring Pars’s claim pursuant to Heck would leave
    Pars with effectively no remedy for the unconstitutional intrusion. Although the constitutionality
    of the search was addressed by the courts of the Eighth Circuit 5in Baranski’s criminal case, Pars had
    no opportunity to participate in the resolution of that issue. We are unaware of any statutory
    provision that would have afforded Pars the right to intervene in Baranski’s criminal trial in order
    to join his suppression motion. Even if Pars had been permitted to intervene, its constitutional
    claims for damages against the individual ATF agents could not have been adjudicated in that forum
    because the agents were not parties to Baranski’s criminal proceeding. We also question the
    efficacy and propriety of trying a criminal action simultaneously with an action for damages. For
    these reasons, we hold that Heck does not bar Pars’s Bivens claims for damages against Defendants.
    As a purely factual matter, Pars’s ability to recover damages flowing from the unlawful
    seizure of the weapons may be greatly circumscribed. The weapons have been forfeited to the
    government, and that criminal judgment is unassailable. Therefore, to the extent Pars seeks damages
    for loss of use of the weapons or lost storage costs attributable to their unlawful seizure, Pars’s
    recovery is temporally limited by the inevitable (lawful) forfeiture of those weapons. Pars also can
    seek compensatory damages for alleged injuries to its reputation and any other financial injury that
    flowed from the unlawful seizure, as long as the injuries can be distinguished from harm it inevitably
    would have suffered due to the subsequent, lawful forfeiture of Baranski’s weapons. Like Baranski,
    Pars may also seek punitive damages against Defendants for the manner in which they executed the
    search and seizure. Given the state of the record, we express no opinion as to whether Pars or
    Baranski ultimately will be able to marshal sufficient evidence to prove a compensable injury or
    even to create a genuine issue of material fact that they suffered a compensable injury. They may
    be entitled only to an award of nominal damages for their constitutional injuries. Those are issues
    best left to the district court on remand.
    Finally, we acknowledge that our holding today on the Fourth Amendment issue appears to
    be at odds with the Eighth Circuit’s holding on the same set of operative facts. Should Plaintiffs
    proceed to trial and prevail, Defendants (in their individual capacities) would be found to have
    flouted the Fourth Amendment, even though they (in their official capacities) previously were found
    to have acted lawfully. We would note, however, that at the time the Eighth Circuit rendered its
    decision in Baranski, it did not have the benefit of the Supreme Court’s Groh decision. In any event,
    this Court’s holding in the instant case is preferable to the alternative of leaving individuals and
    property owners who have suffered a patently unconstitutional intrusion without any remedy. We
    therefore hold that an action for damages, as circumscribed above, would not necessarily
    demonstrate the invalidity of any criminal judgment and, consequently, is not barred by Heck.
    5
    Conceivably, the prejudice to Pars would be even more severe if Baranski’s criminal counsel had been
    ineffective, such as by failing to advance colorable arguments concerning the constitutionality of the search and seizure.
    Indeed, if Baranski’s attorney had failed to contest the search and seizure, the Fourth Amendment issue would not have
    been litigated at all.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                           Page 16
    IV.
    For all the foregoing reasons, we REVERSE the district court dismissal of Plaintiffs’ Bivens
    claims on qualified immunity grounds; AFFIRM the dismissal of Plaintiffs’ Bivens claims to the
    extent they seek (a) return of the firearms that were forfeited after Baranski’s criminal conviction
    or (b) damages attributable to the inevitable, lawful forfeiture of those firearms; and REVERSE the
    order of dismissal with respect to Plaintiffs’ claims for compensatory damages that arose from
    Defendants’ unlawful search and seizure, but that were not otherwise an inevitable result of the
    subsequent forfeiture. We also REVERSE the dismissal of Plaintiffs’ claims for punitive damages.
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                              Page 17
    ________________________________________________
    CONCURRING IN PART, DISSENTING IN PART
    ________________________________________________
    COOK, Circuit Judge, concurring in part and dissenting in part. Because I agree with the
    district court that qualified immunity supports dismissal of all plaintiffs’ claims, I respectfully
    dissent from those portions of the majority’s opinion that reverse the district court.
    Even if the majority is correct in its conclusion that the warehouse search violated the Fourth
    Amendment in light of Groh v. Ramirez, I nevertheless maintain that Sixth-Circuit precedent
    sanctioning similar searches entitles the agents here to qualified immunity.
    In Groh, the warrant neither described the items to be seized, nor cross-referenced a
    document that described those items. 
    540 U.S. 551
    , 554–55 (2004). Thus, the agents had no basis
    to believe the warrant was valid.
    Here, by contrast, the agents performed their search under a warrant cross-referencing a
    sealed affidavit—a practice this court has previously deemed reasonable. United States v. Pritchett,
    40 Fed. Appx. 901, 907 (6th Cir. 2002); see also Frisby v. United States, 
    79 F.3d 29
    , 32 (6th Cir.
    1996) (“The Fourth Amendment does not necessarily require that government agents serve a
    warrant, or an attachment thereto, prior to initiating a search or seizing property.”); United States
    v. Gahagan, 
    865 F.2d 1490
    , 1497 (6th Cir. 1989) (“[I]f the description contained in the warrant itself
    is inadequate, ‘it is appropriate to look to the description appearing in the warrant application or
    affidavit if it is clear that the executing officers were in a position to be aided by the document
    . . . .’”) (quoting 2 W. LaFave, Search and Seizure § 4.5(a) at 209 (2d ed. 1987)). Even if Groh casts
    doubt on Pritchett’s result, the fact that a unanimous panel of this court reached that result
    establishes that the ATF agents’ actions here did not violate “clearly established statutory or
    constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982).
    When faced with the question now before this court, the Third Circuit held that a district
    court erred when it denied an officer qualified immunity. The court explained:
    Thus, while it was “clearly established” that warrants must be particular, the
    narrower and more appropriate question, i.e. whether it was clearly established that
    one has a constitutional right to be free from a search pursuant to a warrant based
    upon a sealed list of items to be seized, has not heretofore been answered, at least in
    those terms.
    Bartholomew v. Pennsylvania, 
    221 F.3d 425
    , 429 (3d Cir. 2000).
    The Fifth Circuit reached the same conclusion in the context of affirming the denial of a
    motion to suppress. In United States v. Cherna, the court held that because it was “not entirely clear
    from circuit precedent that the affidavit must be physically attached to the warrant or served on the
    defendant,” the officers who executed the warrant could “reasonably rely on the magistrate judge’s
    issuance of the warrant, even though he1 simultaneously sealed the affidavit on which it was based.”
    
    184 F.3d 403
    , 412–13 (5th Cir. 1999).
    1
    Although Cherna involved the application of the good-faith exception to the exclusionary rule, its holding is
    relevant to the civil case presented here because “‘the same standard of objective reasonableness that we appl[y] in the
    context of a suppression hearing in Leon defines the qualified immunity accorded an officer.’” 
    Groh, 540 U.S. at 565
    n.8 (quoting Malley v. Briggs, 
    475 U.S. 335
    , 344 (1986)).
    Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                           Page 18
    The case for qualified immunity is even stronger here than in Bartholomew or Cherna
    because this court’s opinion in Pritchett explicitly approved a search executed under a warrant that
    cross-referenced a sealed affidavit. I would therefore affirm the district court’s order dismissing
    plaintiffs’ complaints.
    

Document Info

Docket Number: 03-5582-5614

Citation Numbers: 401 F.3d 419

Judges: Keith, Clay, Cook

Filed Date: 3/14/2005

Precedential Status: Precedential

Modified Date: 10/19/2024

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