Francisco v. Long

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 31 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
KATHLEEN A. FRANCISCO; LEWIS J.
FRANCISCO; BILLY L. SKOOG,
Plaintiffs-Appellants,
COEXCO, INC.,
No. 96-1459
Plaintiff,
(D.C. No. 95-M-1561)
(D. Colo.)
v.
JAMES J. LONG; KENNETH NAVE;
MICHAEL J. MILNE, and First through Fourth
Does; UNITED STATES OF AMERICA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Kathleen Francisco, Lewis Francisco, and Billy Skoog (the Appellants)
appeal the district court's dismissal on summary judgment of their lawsuit against
two detectives of the Sheriff's Office of Adams County, Colorado, an attorney in
the District Attorney's Office of Adams County, Colorado, and the United States
of America (the Defendants) for various alleged civil rights violations. The
district court properly exercised jurisdiction under 28 U.S.C. §§ 1331 and
1343(a). This court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1291.
Appellants contend the district court erred in dismissing their 42 U.S.C.
§§ 1983 and 1985(3) claims at the summary judgment stage. They also argue the
district court erred by failing to provide them with an opportunity to conduct
discovery before dismissing the case on summary judgment. 1 We affirm the
district court's decision.
1
In their pro se brief, Appellants state four issues on appeal: (1) do they
have a claim under the Fourth and Fourteenth Amendments; (2) did the
defendants enter into a conspiracy to violate appellants's civil rights; (3) does
immunity apply and can the court decide this issue without a evidentiary hearing;
and (4) did the court properly dismiss on summary judgment. For purposes of its
analysis, the court has combined issues 1 and 3. Issue 4, of course, applies across
the board.
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Appellants owned and operated a hot tub and bath house business in Adams
County, Colorado. The local authorities suspected the business of operating as an
unlicensed massage parlor and illegal nude entertainment establishment. On June
18, 1993, the Adams County Sheriff's Office obtained a search warrant to search
the business and seize evidence relating to these suspicions. Detectives served
the warrant and searched the business on June 19 and 20, 1993, seizing fifteen
boxes of records and documents. Appellants allege this was a "general and
indiscriminate search" in violation of their Fourth and Fourteenth Amendment
rights.
Prior to issuance of the warrant, Dennis Bok, a Revenue Agent of the
United States Internal Revenue Service, who suspected the business of concealing
cash profits, met with detectives in the Adams County Sheriff's Office to discuss
his concerns. At that time, the detectives were unable to help Agent Bok, but
following the execution of the search warrant, the detectives provided Agent Bok
the seized records. The Internal Revenue Service then used the documents in its
investigation of Appellants' business. Appellants allege Agent Bok conspired
with the Adams County Sheriff's Office officials to obtain business records for
the Internal Revenue Service in violation of the Apellants' Fourth and Fourteenth
Amendment rights.
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In their complaint, appellants stated claims for violations of their Fourth
and Fourteenth Amendment rights. The district court determined the defense of
qualified immunity applied and dismissed the claims on summary judgment. We
review a grant of summary judgment de novo, using the Federal Rule of Civil
Procedure 56(c) standard applied by the district court. V-1 Oil Co. v. Means, 94
F.3d 1420, 1422 (10th Cir. 1996).
Federal courts have recognized a qualified immunity defense for federal
officials sued under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and for state officials sued under § 1983. See
Johnson v. Fankell, ___ U.S. ___, ___, 117 S. Ct. 1800, 1803 (1997); see also
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (establishing the qualified
immunity defense). To avoid dismissal when a defendant raises a claim of
qualified immunity, "the plaintiff must show that the law was clearly established
when the alleged violation occurred and come forward with facts or allegations
sufficient to show that the official violated the clearly established law."
Woodward v. City of Worland, 977 F.2d 1392, 1396 (10th Cir. 1992), cert. denied,
509 U.S. 923 (1993). In other words, once the qualified immunity defense is
raised, the plaintiff has the burden of identifying a clearly established right, of
which a reasonable person would have known, and alleging facts showing the
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defendant violated that right. Harlow, 457 U.S. at 818.
The district court based its decision on the Appellants' failure to cite any
authority showing that Defendants violated clearly established law. Despite
numerous challenges, the actions of Defendants have been upheld in several
different courts. On appeal, the Appellants have again failed to cite any authority
to support their allegation that Defendants violated their constitutional rights.
This court is unaware of any such authority that might support their position.
The qualified immunity defense is intended to protect the defendants to
which it applies from the burdens of trial as well as from potential liability. See
Fankell, 117 S. Ct. at 1803. The objective qualified immunity defense standard
was adopted in part to "'permit the resolution of many insubstantial claims on
summary judgment.'" Id. (quoting Harlow, 457 U.S. at 818). Because Appellants
could not come forward with sufficient facts or allegations to show violations of
clearly established law, they are not entitled to subject Defendants to the burdens
of an evidentiary hearing, discovery, or trial.
Appellants also alleged the detectives conspired with Agent Bok to deprive
them of their Fourth and Fourteenth Amendment right to be free from
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unreasonable search and seizure. The district court considered this a claim
pursuant to 42 U.S.C. § 1985(3) and properly dismissed it for failure to allege
class-based animus. Appellants argue the district court erred in finding no class-
based animus.
Section 1985(3) requires "racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators' action." Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). A § 1985(3) claim lacking an allegation
of "class-based or racial discriminatory animus" must fail. Bisbee v. Bey, 39 F.3d
1096, 1102 (10th Cir. 1994), cert. denied, 515 U.S. 1142 (1995).
Appellants contend the animus in this case is that of the government agents
toward "adult businesses." This court has determined § 1985(3) was intended "'to
provide redress for victims of conspiracies impelled by a commingling of racial
and political motives'" primarily stemming from "strife in the South in 1871."
Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985) (quoting Hampton v.
Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979), and other cases) (finding plaintiffs
alleging they were discriminated against because of their political beliefs were not
in a protected class).
Whatever may be the precise meaning of a "class" for purposes of Griffin's
speculative extension of § 1985(3) beyond race, the term unquestionably
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connotes something more than a group of individuals who share a desire to
engage in conduct that the § 1985(3) defendant disfavors. Otherwise,
innumerable tort plaintiffs would be able to assert causes of action under
§ 1985(3) by simply defining the aggrieved class as those seeking to
engage in the activity the defendant has interfered with. This definitional
ploy would convert the statute into the "general federal tort law" it was the
very purpose of the animus requirement to avoid.
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993) (citations omitted)
("'Women seeking abortion' is not a qualifying class."). We agree with the district
court that owners of adult businesses are not a protected class for § 1985(3)
purposes.
As this court finds no reversible error, the decision of the district court is
AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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