United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 13, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10693
DELORES A. ZARNOW
Plaintiff-Appellee,
v.
CITY OF WICHITA FALLS, TEXAS;
CHIEF OF POLICE KEN COUGHLIN; SERGEANT ROGER KENDALL;
BOBBY DILBECK; DENNIS KEETHLER
Defendants-Appellants
Appeal from the United States District Court for the
Northern District of Texas, Wichita Falls
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Some people enjoy collecting baseballs cards or rare coins.
Dr. Allen Zarnow enjoyed collecting weapons and explosives. While
the unexpected workplace discovery of a collector’s Mickey Mantle
rookie cards or buffalo nickels might be met with amusement by co-
workers, however, the discovery of guns and blasting caps provokes
a much stronger reaction, especially a workplace available to the
public. This case arises out of the latter context, posing the
question of whether police officers are entitled to qualified
immunity when they reacted hastily to a perceived danger. We
DISMISS in part and REVERSE in part.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Initial Police Response
On July 13, 1999, officers from the Wichita Falls Police
Department responded to a call at the Clinics of North Texas (“the
Clinic”). Clinic employees had discovered a gun, magazine, box of
shells, .50 caliber armor-piercing ammunition, blasting caps, fuse
cord, and fuse-type materials — described by responding
firefighters as “finger poppers” or “little booby-traps” — inside
Zarnow’s office desk. Zarnow, a Clinic doctor for fifteen years,
was on vacation at the time.
The first police officer to arrive at the scene observed the
items and, based on his previous military experience, opined that
they were “dangerous.” The Clinic staff told him that Zarnow was
a “gun expert and salesman,” had talked about purchasing a rocket
launcher, and often launched rockets and blew up stumps on his land
in Oklahoma. The officer briefed Police Sergeant Joe Snyder and
contacted the Bureau of Alcohol, Tobacco, and Firearms (“ATF”).
Snyder telephoned Police Sergeant Roger Kendall, and informed him
of the “bomb call” at the Clinic. Kendall arrived at the scene
shortly after 5:00 p.m.
Kendall ordered Officer Dennis Keethler to conduct a
videotaped interview of Nurse Kyle. The contents of this
2
interview, which officers relied upon in the decision to obtain
search warrants, are hotly disputed. Most significantly, according
to Keethler, Nurse Kyle reported Zarnow having said that “it would
be easy to bomb the local facilities.” Kyle now denies making any
such statement, and the statement does not appear on the videotape
of the interview. Kyle also reportedly told Keethler that Zarnow
was opposed to the local mergers of medical facilities, including
the Clinic, was moody and acted kind of manic depressive, and that
she was scared because she did not want him to “come after” her.
After 7:00 p.m., a U.S. Army sergeant specializing in
explosive ordinance disposal entered the office and discovered a
riot bomb, smoke grenades, black powder, and 48 bottles of
nitromethane liquid known as Kinepak, a binary explosive.
B. The Warrants
At 5:40 p.m., Kendall dispatched Detective Kyle Collier to
prepare an affidavit and procure a search warrant for Zarnow’s home
in Wichita Falls. The warrant stated that the specific offense
believe to be committed was “possession of illegal explosives and
other explosive devices” in violation of Texas Penal Code sections
46.05 and 46.09. The warrant asserted that “explosives” and
“explosive devices” were found inside Zarnow’s office, that “this
residence is supposed to be booby trapped according to an employee
that works with Dr. Zarnow,” that “Zarnow had told employees that
he is in possession of a rocket launcher,” and that the “dangerous
explosives” at the office were identified by “an expert on bombs
3
and explosives” based on his “experience with the military.”
The warrant’s only suggestion that there would be illegal
weapons at Zarnow’s house was the claim that he “is also known to
be in possession of various guns and ammunition at his residence
and has his gun safe booby trapped with tear gas if someone
attempts to enter.” A magistrate approved a warrant to search for
any explosive devices or prohibited weapons, along with any
documents or notes corresponding to ownership of the weapons or the
house.
At 5:55 p.m., Kendall sent Officer Bobby Dilbeck to obtain a
search warrant for a locked file cabinet in Zarnow’s office. The
cabinet warrant was based on a belief that Zarnow was “unlawfully
in possession of prohibited weapons, to wit, explosive devices.”
The warrant asserted that officers had found “numerous explosive
devices inside the office,” that bomb squad personnel had asserted
that “the devices found were explosive,” and that an employee had
“stated that Zarnow has talked to having various types of other
explosive devices in his possession.” A magistrate approved this
warrant as well.
C. The Search
Police tactical officers surrounded Zarnow’s residence at
approximately 6:30 p.m., began surveillance, and awaited further
instructions. During the surveillance, officers learned that
Zarnow had returned home from his family vacation. Detectives
called him by phone and asked that he walk outside with his hands
4
above his head. Zarnow complied and officers frisked him for
weapons. The officers briefly spoke to him at his home, at which
time he stated that he had two loaded guns in the house and two
locked gun safes. Officers escorted Zarnow to the police station
where Officer Dilbeck and an ATF agent interrogated him. Zarnow
assured them that he had all the necessary paperwork, including a
firearm dealer’s license, to possess and own all the weapons and
other materials that the officers had found. Zarnow then
accompanied the officers back to the home so that he could show
them the paperwork.
Zarnow showed the paperwork to an ATF agent while Dilbeck and
several other officers began a consensual search of the home. The
officers found a box marked “explosives” in plain view, at which
point Zarnow asked the officers to discontinue the search and leave
his home. At that time, Dilbeck executed the house warrant and
continued the search without Zarnow’s permission.
The search concluded at midnight and officers took Zarnow back
to the police station where they resumed questioning him. The next
morning, Police Chief Ken Coughlin assembled all of the firearms
and ammunition seized at Zarnow’s home and laid them out before the
television and print news media. Zarnow was jailed for possession
of prohibited weapons and bond was set at $500,000. On July 16,
police officers executed an additional search warrant at Zarnow’s
home and lake house and seized additional materials. As a result
of the combined searches, the Wichita Falls police department
5
seized several thousand rounds of assorted ammunition and hundreds
of weapons, including revolvers, a switchblade knife, shotguns,
rifles, a flare launcher, an M-60 machine gun, a 0.9 mm Uzi, a
spotter scope, four silencers, and a stun gun. Police also seized
currency, bonds, and silver.
The Wichita County Grand Jury subsequently no-billed Zarnow,
and the Montague County prosecutor declined to bring any charges
against him with regard to the items seized from the lake house.
Soon thereafter, Zarnow demanded return of the seized items, most
of which were returned, but many of which were lost or unaccounted
for.
Zarnow brought this case pursuant to 42 U.S.C. §§ 1983 and
1988 alleging that his constitutional rights were violated by the
officers of the Wichita Falls Police Department, North Central
Texas Drug Task Force, and by the City of Wichita Falls. He sought
monetary compensation for the loss and destruction of the seized
ammunition and unreturned items, and compensatory damages for
health related damages and punitive damages. Each of the officers
claimed qualified immunity and moved for dismissal on the pleadings
and summary judgment. The district court dismissed all claims and
parties except for Zarnow’s Fourth Amendment allegations against
the officers and claims related to the alleged unconstitutional
seizure policies of the City. The City and officers appeal.
During the pendency of this case, Zarnow passed away and is
represented by his surviving wife.
6
II. JURISDICTION
The City of Wichita Falls and Police Chief Coughlin appeal the
district court’s denial of summary judgment. We lack jurisdiction
over that appeal at this time.
Denial of summary judgment on qualified immunity grounds
typically falls within the collateral order doctrine, an exception
to the final judgment rule. See McKee v. City of Rockwall, 877
F.2d 409, 412 (5th Cir. 1989) (stating that “interlocutory appeal
is permissible only with respect to a decision which conclusively
determines a disputed question, and which involves a claim of right
separable from, and collateral to, rights asserted in the action”)
(citing Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)). Because
qualified immunity is premised on an officer’s “right to be free
from suit,” McKee, 877 F.2d at 413, the denial of qualified
immunity, even early in litigation, conclusively disposes of the
officer’s right, a collateral issue. Id.
Municipalities and officers in their official capacity,
however, have no comparable right to be free from suit. Burge v.
Parish of St. Tammany, 187 F.3d 452, 476 (5th Cir. 1999). The
district court’s denial of summary judgment for the City and Chief
Coughlin does not dispose of any collateral issue; it marks only an
initial judgment on the merits of Zarnow’s case. An erroneous
ruling on liability “may be reviewed effectively on appeal from
final judgment.” Id.
7
We have recognized pendent appellate jurisdiction over state
law causes of action which were joined with a federal action
subject to qualified immunity. Gros v. City of Grand Prairie, 209
F.3d 431, 436 (5th Cir. 2000) . “[P]endent interlocutory appellate
jurisdiction over additional issues is looked on with disfavor,”
however, and we have refused to recognize “so strange an animal as
pendent party interlocutory appellate jurisdiction.” McKee, 877
F.2d at 413. While recognizing that some inefficient litigation
may result from this rule, “we cannot expand our appellate
jurisdiction without some signal from the Supreme Court that it is
willing to relax the requirements of Coopers and Cohen.” Id. The
appeals of Police Chief Coughlin in his official capacity and the
City of Wichita Falls must be dismissed for want of jurisdiction.
Contending that the City’s appeal is frivolous, and that the
City’s initial brief “wholly ignores the law” as expressed in
McKee, id., Zarnow moves for sanctions, requesting damages, costs
and attorney’s fees. “An appeal is frivolous when it involves
legal points that are not arguable on their merits.” Sturgeon v.
Airborne Freight Corp., 778 F.2d 1154, 1161 (5th Cir. 1985).
Although this jurisdictional question is not close and is
foreclosed by McKee, in Gros, we recognized pendent interlocutory
appellate jurisdiction in a qualified immunity case with a posture
that was not wholly disparate from the posture at present. “We do
not lightly impose sanctions for taking an appeal.” Sturgeon, 778
8
F.2d at 1161. The City’s appeal may be meritless, but it is not so
unjustified as to merit sanctions.
III. DISCUSSION
Having disposed of the City’s and Chief Coughlin’s claims for
lack of jurisdiction, we turn to whether the district court erred
in denying qualified immunity to Officers Kendall and Dilbeck for
their role in securing the warrants to search Zarnow’s house and
locked office cabinet, and Officer Keethler for his role in
interviewing Nurse Kyle.1
Once a public official raises the defense of qualified
immunity, the burden rests on the plaintiff to rebut it. See
Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (“We do not
require that an official demonstrate that he did not violate
clearly established federal rights; our precedent places that
burden upon plaintiffs.”). On a motion for summary judgment, a
plaintiff must produce evidence showing two things:(1) that the
defendants violated the plaintiff’s constitutional rights and (2)
that the violation was objectively unreasonable. See Fraire v.
City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).
1
Appellants’ complaint that the district court failed to
consider and rule on Chief of Police Coughlin’s qualified immunity
defense is meritless. Zarnow did not bring any claims against
Chief of Police Coughlin in his individual capacity, and has not
pointed to any facts which would support individual liability
against Coughlin. Officials have no qualified immunity when they
are sued in their official capacity, so the district court did not
err by failing to consider Coughlin’s motion.
9
The inquiry into reasonableness asks “whether ‘[t]he contours
of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates the right.’” Id.
(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). If
reasonable public officials could differ as to whether the
defendants’ actions were lawful, the defendants are entitled to
immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986). “Even if a
defendant’s conduct actually violates a plaintiff’s constitutional
rights, the defendant is entitled to qualified immunity if the
conduct was objectively reasonable.” Pfannstiel v. City of Marion,
918 F.2d 1178, 1183 (5th Cir. 1990).
Zarnow charges that the officers violated his right to be free
from unreasonable searches and seizures, as secured by the Fourth
Amendment. To prevail, Zarnow must show that the search was
unreasonable under clearly-established law at the time of the
search. See Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998).
Courts “pay great deference to a magistrate’s determination of
probable cause,” Illinois v. Gates, 462 U.S. 213, 236 (1983), but
“courts will not defer to a warrant based on an affidavit that does
not provide the magistrate with a substantial basis for determining
the existence of probable cause.” United States v. Leon, 468 U.S.
897, 915 (1984) (citing Gates, 462 U.S. at 239). The Supreme Court
laid out the relevant standard: “whether a reasonably well-trained
officer in petitioner’s position would have known that his
10
affidavit failed to establish probable cause and that he should not
have applied for the warrant. If such was the case, the officer’s
application for a warrant was not objectively reasonable[.]”
Malley, 475 U.S. at 345. “[W]e have consistently examined the
actions of defendants individually in the qualified immunity
context,” and so we must consider the facts relating to Officers
Kendall, Dilbeck, and Keethler separately. Meadours v. Ermel, 483
F.3d 417, 422 (5th Cir. 2007).
A. The district court erred in denying Officer Kendall’s
defense of qualified immunity as to the house search.
Kendall ordered another officer, Collier, who had not been
otherwise involved in the investigation to obtain a search warrant
for Zarnow’s house based on the blasting caps and firearms found in
the office and the “rumor and innuendo” circulating the building at
the time. In order to rebut Kendall’s defense of qualified
immunity, Zarnow must show that the obtainment and execution of the
search warrant violated his Fourth Amendment rights, and that the
violation was objectively unreasonable.
The warrant was issued to investigate violations of the Texas
weapons statutes, §§ 46.05 and 46.09, pertaining to explosives. To
have probable cause for a search, officers would have to believe
either that Zarnow was in possession of explosive weapons, or,
alternatively, that he had the intent to combine explosive
components for use in a criminal endeavor. See Tex. Penal Code §
46.09 (specifying offense where “person knowingly possesses
11
components of an explosive weapon with the intent to combine the
components into an explosive weapon for use in a criminal
endeavor”). An “explosive weapon” is defined as “any explosive or
incendiary bomb, grenade, rocket, or mine, that is designed, made
or adapted for the purpose of inflicting serious bodily injury,
death, or substantial property damage . . .” Tex. Penal Code §
46.01(2). The definition also “includes a device designed, made,
or adapted for delivery or shooting an explosive weapon.” Id.
Blasting caps, under this definition, are not explosive weapons.2
Therefore, given that the blasting caps were legal and the warrant
was otherwise based on unsubstantiated statements, the district
court found that there was no probable cause to support the
warrant, and so any search of Zarnow’s home pursuant to it
constituted a violation of his Fourth Amendment rights. Agreeing
with the district court that the warrant was invalid, and given
2
We do not have jurisdiction to review a denial of qualified
immunity where there is a genuine dispute over material facts.
Johnson v. Jones, 515 U.S. 304, 313-18 (1995)(forbidding immediate
appeal of district court’s determination of which facts were
genuinely disputed in its order denying summary judgment on
qualified immunity). The riot bomb and smoke grenades that were
allegedly discovered in the office later would likely qualify as
explosive weapons or incendiary bombs. However, based upon the
record it appears that these items were found after the search
warrant was sought, were not mentioned in the warrant, and are
disputed by Zarnow. Consequently, these are material disputed
facts that we lack jurisdiction to review. In contrast, where the
district court’s denial of qualified immunity is based on an issue
of law, as it otherwise is in this case, it is an appealable “final
order” within the meaning of 28 U.S.C. § 1291. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
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that the officers by all accounts did rely on the warrant in
conducting the search after Zarnow withdrew consent, we conclude
that his constitutional rights were violated by the execution of
the warrant, and turn to whether Kendall’s actions were objectively
unreasonable.
The district court found that the Texas Penal Code clearly did
not include blasting caps as prohibited explosive weapons.
Moreover, the court reasoned that no reasonably trained officer in
the exercise of reasonable professional judgment could conclude
from the “rumors and innuendo” circulating at the Clinic that
Zarnow possessed the blasting caps and fuse materials “with the
intent to combine the components into an explosive weapon for use
in a criminal endeavor.” While we agree that the blasting caps did
not qualify as an explosive weapon and that a reasonably trained
officer would know that, we disagree with the district court as to
whether an officer could reasonably believe that Zarnow possessed
the items with intent to combine them into a weapon for use in a
criminal endeavor.
First, while the statements made to the officers at the Clinic
regarding Zarnow — allegedly including that he had noted the
vulnerability of the Clinic to a bombing — may have been
unsubstantiated, they were cause for alarm. The statements were
also consistent with the discoveries inside the office. Further,
even though blasting caps and other fuse materials may not alone
qualify as explosive weapons within the meaning of the Texas Penal
13
Code, it is a reasonable assumption that someone in possession of
such items intends to eventually use them for their purpose of
detonating a larger, more powerful explosive. Zarnow was a medical
doctor, not a commercial miner or demolition expert. As such,
these items were disconcertingly out-of-place inside a health care
facility. Considering these facts together, it was not
unreasonable for an officer to believe that Zarnow possessed the
blasting caps and fuse materials “with the intent to combine the
components into an explosive weapon for use in a criminal
endeavor.”
Qualified immunity “gives ample room for mistaken judgments”
by protecting “all but the plainly incompetent or those who
knowingly violate the law.” Malley, 475 U.S. at 343. “That is the
balance the courts have struck between compensating wronged
individuals for deprivation of constitutional rights and
frustrating officials in discharging their duties for fear of
personal liability.” Brown v. Lyford, 243 F.3d 185, 190 (5th Cir.
2001). We are mindful that only four years beforehand, terrorists
claimed the lives of 168 people in the bombing of the Alfred P.
Murrah Federal Building in Oklahoma City, a short two-hour drive
from Wichita Falls, Texas. Given the geographic and temporal
proximity of that tragedy, a reasonable law enforcement officer
would be acutely aware of the threat of similar occurrences.
Officer Kendall was tasked with securing public safety and in doing
so, responded to a potentially dangerous situation in a reasonable
14
way, making decisions as events unfolded and doing so within the
boundaries of the law as he reasonably understood it. We find that
Kendall’s actions in ordering another officer to obtain a search
warrant were not objectively unreasonable, and that the district
court erred in denying him qualified immunity.
B. The district court erred in denying Officer Kendall
and Dilbeck’s defense of qualified immunity as to the
“locked cabinet” office search.
The affidavit Dilbeck provided to obtain the locked cabinet
warrant was based on the same information, provided by Kendall, as
the house warrant, but there are notable differences in the
analysis. Police had recently found explosive materials, explosive
components, and firearms in the immediate vicinity of the cabinet.
The cabinet was located in a public place, the Clinic, and the
contents of the cabinet may have posed an immediate danger to
employees at the clinic. The Clinic officials had asked the fire
department to remove any explosives from the Clinic. Under these
facts, a reasonable officer could believe that it was necessary for
public safety to search and secure the cabinet. Cf. United States
v. Goldstein, 635 F.2d 356, 361 n.5 (5th Cir. 1981) (“[B]ecause of
the great danger posed to the public safety by air piracy, searches
conducted in the interest of airport safety are subject to a more
relaxed test of reasonableness.”); United States v. Salava, 978
F.2d 320, 324 (7th Cir. 1992) (recognizing an exception to the
warrant requirement where “police have a reasonable suspicion that
someone is injured or that the public safety is in jeopardy”).
15
Dilbeck presented the information he had to a magistrate, and
obtained a warrant.
Zarnow contends that the officers could have simply closed the
office and waited for his return, citing statements by Fire Chief
Lindsay in support of this plan. They were not obligated to do so,
however. The Fourth Amendment prohibits only “unreasonable
searches.” The search of a locked office cabinet in a public
office full of explosives is not an unreasonable search, as it is
justified by concern for the public safety. Zarnow’s
constitutional rights were not violated by the locked cabinet
search, so the court erred in denying Officers Kendall and Dilbeck
qualified immunity.
C. The district court erred in denying Officer Keethler
qualified immunity as to his interview of Nurse Kyle.
The district court denied qualified immunity for Officer
Keethler because he was the source of “exaggerated information”
relied on by other officers in securing warrants. Zarnow alleges
that Keethler grossly misrepresented Nurse Kyle’s testimony, and
may have fabricated her memory of Zarnow stating that “it would be
easy to bomb the local facilities.” Misreporting of a witness’
statement resembles negligence, which will not support the denial
of qualified immunity. See Daniels v. Williams, 474 U.S. 326, 331-
34 (1986). Thus, if Keethler was merely negligent in improperly
reporting the contents of his interviews, he is entitled to
qualified immunity. Zarnow shoulders the burden of demonstrating
16
otherwise. See Pierce, 117 F.3d at 871-72 (placing burden upon
plaintiffs). Based upon the record before us, Zarnow has not
successfully carried the burden of showing that Officer Keethler
violated his constitutional rights by recklessly reporting
information that led to an improper warrant.
First, it is not evident that the interview was even relied
upon in obtaining the warrant. The warrant reports three
statements from Clinic employees — that Zarnow possessed a rocket
launcher, that his home might be booby-trapped, and that his gun
safe was booby-trapped. None of these statements were attributed
to the interview. Therefore, we cannot conclude that Keethler’s
reporting of the interview resulted in a violation of Zarnow’s
rights. See Fraire, 957 F.2d at 1273 (requiring a violation of
Plaintiff’s constitutional rights to deny qualified immunity).
Second, even if the officers did rely upon the interview in seeking
the warrant, Zarnow has failed to produce any evidence showing that
Keethler’s alleged mis-reporting constituted more than negligence,
for which he is entitled to qualified immunity. See Daniels, 474
U.S. at 331-34.
IV. CONCLUSION
We lack jurisdiction to consider the appeals of the City and
Chief Coughlin. The district court erred in denying qualified
immunity to Officers Kendall, Dilbeck, and Keethler. For the
foregoing reasons, we DISMISS the appeals of the City and Chief
17
Coughlin, and REVERSE the district court’s denial of qualified
immunity as to Officers Kendall, Dilbeck, and Keethler.
18