UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-1052
_____________________
JAN FORSYTH, ET AL.,
Plaintiffs-Appellants,
versus
JOHN HOLMAN BARR, ET AL.,
Defendants,
MACK VINES, DWIGHT WALKER,
WILLARD ROLLINS,
Defendants-Appellees,
versus
CITY OF DALLAS, TEXAS,
Defendant-Appellee-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(April 20, 1994)
Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
BARKSDALE, Circuit Judge:
At issue is a summary judgment awarded the appellees (City of
Dallas and three of its police officers) on the appellants' claims
under the Federal Wiretap Act, 18 U.S.C. §§ 2510-2520: (1) for
interception by a third person (appellants claim conspiracy) of the
appellants' telephone conversations, when two of the appellants
were police officers involved in an undercover operation; and (2)
for the appellees' disclosure and use of the contents of those
intercepted conversations for a police internal affairs
investigation, conducted after that information was conveyed to the
police as part of the bases for charges against one of the
appellants (an officer).
The appellees deny that they were involved in the interception
of the communications, but they did disclose and use the
information in their investigation. In the final analysis, the
summary judgment hinges on whether the disclosure and use were
permitted by the Act, it being undisputed that they were
"appropriate to the proper performance of the [appellee officers']
official duties", as provided for in § 2517(1) and (2). The
linchpin to that question, assuming that the third person illegally
intercepted the information, is whether the appellee officers'
"obtain[ing]" that information from that person was "by any means
authorized by" the Act, as found in § 2517(1) and (2). The meaning
of this phrase is far from clear; but the legislative history
sanctioning such disclosure and use of illegally intercepted
information is crystal clear.
The persons whose conversations were intercepted -- Jan
Forsyth and Richard Kirks (the officers), and Susan and Charles
Bruton (the latter being an informant) -- appeal from the judgment
for the City, Dwight Walker, Willard Rollins, and Mack Vines. The
City appeals being required to provide independent counsel for
Vines. We AFFIRM.
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I.
Dallas police officers Forsyth and Kirks, two of the four
appellants, were assigned to the Intelligence Division. In
December 1987, under the supervision of appellee Rollins of that
division, they began an undercover investigation, with appellant
Charles Bruton acting as an informant. His wife, appellant Susan
Bruton, had been an informant previously for Forsyth. The
investigation was conducted, in part, from the Brutons' home in
Dallas, including over their telephone.
While the undercover investigation was ongoing, appellant
Forsyth was telephoned in March 1988 by John Barr, a Dallas
attorney,1 about an unrelated civil case involving appellant
Charles Bruton (the informant) and Barr's client, George Grogan.2
The appellants alleged in their complaint that Grogan had hired
Bruton to illegally dispose of toxic chemicals; that he had
reported the illegal disposal, causing state environmental
authorities to initiate an investigation of Grogan; that Barr
sought Forsyth's assistance in having Bruton recant his illegal
disposal charges; and that Forsyth refused to become involved.
The appellants further alleged in their complaint that, in
June 1988, Barr and Grogan contacted the Dulworths, neighbors of
1
Barr, who described himself as a "cop groupie", occasionally
accompanied Dallas police officers in the execution of warrants.
2
Grogan, a businessman and former member of the Dallas Planning
and Zoning Commission, owned property next to the Brutons' home.
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both Grogan and the Brutons,3 and asked for their assistance either
in discrediting Charles Bruton, Forsyth, and Kirks, or in finding
a way to force Bruton to recant his waste disposal charges; that
the Dulworths held a grudge against Bruton because he had testified
in a criminal trial against Gary Dulworth; that the Dulworths
arranged to route the Brutons' telephone line into a previously
dormant line at the Dulworths' home, so that, on an extension in
their home, the Dulworths could listen to the Brutons' telephone
conversations; and that Barr, Grogan, and the Dulworths monitored
and recorded the Brutons' calls, in violation of the Wiretap Act.
On September 22, 1988, Grogan, Barr, and one of Barr's law
partners met with appellee Walker, who was in charge of the police
Internal Affairs Division, and charged that Forsyth had engaged in
criminal and administrative misconduct during the undercover
investigation.4 Walker was told that, over one of her telephones,
Mrs. Dulworth had overheard conversations between Charles Bruton
and Forsyth; that Mrs. Dulworth thought that the telephone had been
disconnected, but that it had suddenly become operable; and that
she had told Grogan that she believed that her telephone line had
become crossed with the Brutons'. Barr told Walker that a wiretap
was not involved, and Walker believed that the telephone had become
a party line accidentally.
3
Homer and Joyce Dulworth, and their son, Gary, resided across
the street from the Brutons.
4
The appellants alleged that Barr used the illegally
intercepted conversations to punish Forsyth and Kirks for not
cooperating with him regarding Charles Bruton and Grogan's toxic
waste disposal.
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At the meeting, Barr made very serious charges against Forsyth
and the Brutons.5 At the conclusion of the meeting, Walker was not
certain which charges arose out of the telephone eavesdropping and
which came from other sources. At least some of the information
was obtained by Barr, his law partner, and Grogan from sources
other than the intercepted conversations. Walker assumed that
information about a personal trip by Forsyth and Charles Bruton was
overheard. See note 5, supra. The information about Charles
Bruton participating in a drug deal was overheard also. See note
5.
5
On September 22, Barr submitted an affidavit summarizing his
charges against Forsyth. Also at the meeting that same day, Barr
told Walker that he and Grogan believed that Forsyth was making
arrangements for the dismissal of environmental fines of
approximately $30,000 against Charles Bruton; that Bruton and
Forsyth were involved in a personal relationship and possibly had
taken a trip to Tennessee together; that Forsyth possibly had
covered up, or arranged for charges to be dropped regarding, a
murder-for-hire scheme in which Charles and Susan Bruton tried to
kill her ex-husband; that Forsyth had misrepresented to a state
judge the nature of Charles Bruton's work as an informant for her;
that Charles Bruton was to receive "half the dope" in a narcotics
deal; and that Forsyth knew that Charles Bruton had convinced a
Darrell Smallwood to burglarize Grogan's house, but had failed to
see that charges were filed against either of them. As to the
burglary, Barr told Walker that he learned about it from visiting
Smallwood in jail.
Walker was also informed that Grogan had understood from prior
conversations with Mrs. Dulworth that the City had made a deal with
Charles Bruton to allow him to illegally mine Grogan's property;
and that Mrs. Dulworth had told Grogan that she overheard on her
telephone: that some environmental matters needed handling, that
Charles Bruton was calling for "Jan" (Forsyth) and that Jan was the
only one who could control Bruton, that there were dead bodies and
dead dogs on the property (unclear whether Grogan's or Brutons'),
and that Charles Bruton was being protected by Dallas police
officers.
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Walker decided to conduct a preliminary internal affairs
investigation of the charges. Such investigations are conducted to
ensure the integrity of the police department. They are not
considered formal complaints; and, unless a violation is
identified, they are not reflected in the personnel record of the
investigated employee.
On either September 22 or 23, Walker informed appellee Rollins
(the supervisor of Forsyth and Kirks' undercover investigation)
about the meeting with Barr and the charges against Forsyth. In
turn, on either September 22 or 23, Rollins informed Lieutenant
Lybrand (one of Forsyth and Kirks' supervisors) about the charges.
Lybrand advised Rollins that the police department should
investigate whether a wiretap was in place; Rollins responded that
any investigation should be performed by the FBI.
With Lybrand present, Rollins met on September 23 with Kirks
and Forsyth, informed Forsyth that a complaint had been filed
against her, and instructed them not to discuss police business
over the Brutons' telephone or to tell anyone that he had given
them that order. Kirks and Forsyth left the meeting believing that
there was a "legal wiretap" on the Brutons' line, although neither
Rollins nor Lybrand told them anything about a wiretap. They
interpreted Rollins' instructions as permitting non-business
discussions, and continued to have conversations on the line after
September 23.6 Rollins assumed that business was the extent of the
6
Kirks' deposition testimony is inconsistent on whether he and
Forsyth followed Rollins' instructions not to discuss police
business on the line. Although Kirks initially testified that they
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relationship between the Brutons and Kirks and Forsyth,7 and did
not anticipate that the officers would continue to use the Brutons'
telephone.
Shortly after the September 22 meeting with Walker, Grogan
contacted City Manager Richard Knight about the matter, because
Mrs. Dulworth had advised Grogan that she had overheard another
telephone conversation in which Charles Bruton had said that the
telephone line was "hot". Grogan concluded that Walker had
disclosed to Forsyth and Kirks the information received from Barr
and him (Grogan). At Knight's request, appellee Vines, the Chief
of Police, met with Grogan. Vines was kept apprised of the
progress of the internal affairs investigation.
On September 26, Walker gave his notes from the September 22
meeting to Detective Jennings of the Internal Affairs Division, and
described that meeting and the charges against Forsyth. In
conducting the preliminary investigation, the appellees used the
information received on September 22 from Grogan, Barr, and his
partner, including the information obtained from intercepted
conversations and that obtained from other sources.
had complied with the order, he later testified that not all of the
calls made after Rollins gave the order were personal.
7
In support of their motion for summary judgment, the appellees
submitted a copy of the procedures for dealing with informants,
including the following: "The relationship between an officer and
an informant should always be strictly professional".
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Jennings interviewed Barr on October 3, regarding the
condition of the Dulworths' telephone and the charges.8 That same
day, after interviewing Barr, Jennings contacted Southwestern Bell
Telephone Company and requested a check on the Dulworths' telephone
line. In response, a Southwestern Bell employee went to the
Dulworths' home the next day, October 4. With Charles Bruton
present, the employee located and disconnected a spliced wire
connecting the Dulworths' and Brutons' lines. Bruton told the
employee that he knew that the Dulworths had been "wiretapping" or
"listening in" on his telephone.9 The employee removed the
connectors and gave them to Charles Bruton, who turned them over to
Kirks. Later, Jennings gave them to the FBI.
Upon completing the internal affairs report, Jennings
forwarded it to the chain of command on November 2, 1988. The
investigation resulted in charges against Forsyth being classified
as "unfounded".
Forsyth and Kirks filed suit against Barr, Grogan, the
Dulworths, the City, Vines, Rollins, and Walker in February 1989.
They alleged that the Dulworths "entered into an illegal agreement
with BARR and GROGAN to illegally intercept and/or record and/or
illegally use information from telephone conversations" between
8
Jennings did not interview Barr earlier because of the illness
and death of Barr's father.
9
Charles Bruton stated by affidavit that a Bobby Woods told him
"in late September" that his (Bruton's) telephone was tapped by the
Dulworths or that they were listening to conversations. Forsyth
stated by affidavit that, on September 25, 1988, Woods told Bruton
about the eavesdropping.
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Charles Bruton and Forsyth and Kirks; and that Vines, Rollins, and
Walker, on behalf of the City, "knowingly accepted and used
information illegally intercepted from [such] telephone
conversations". In August 1989, the action was consolidated with
a similar case filed by Charles and Susan Bruton.10
In April 1991, the appellees (City, Walker, Vines, and
Rollins) moved for summary judgment; and the district court granted
summary judgment that November, later denying a motion for
reconsideration. The appellants settled their claims against Barr,
Grogan, and the Dulworths; those claims were dismissed in November
1992.
II.
The standards for a summary judgment and our plenary review of
it are well established and should be well known. E.g., LeJeune v.
Shell Oil Co., 950 F.2d 267, 268 (5th Cir. 1992). But, because of
the factually driven interception claim in this case, and the
appellants' failure to comply in some instances with the procedure
for showing a material fact issue for that claim, they bear
repeating in some detail.
We employ the same criteria as the district court, viewing all
facts, and the inferences to be drawn from them, in the light most
favorable to the non-movants. Id. at 268. Summary judgment is
proper "if the pleadings, depositions, answers to interrogatories,
10
Southwestern Bell was named as a defendant in the Brutons'
original complaint, and in Forsyth and Kirks' first amended
complaint. On the appellants' motion, Southwestern Bell was
dismissed.
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and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). "[T]he substantive law will identify which facts
are material". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "[A] dispute about a material fact is `genuine' ... if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party". Id. at 248; see Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant has the initial burden of demonstrating the absence
of a material fact issue. St. Paul Ins. Co. v. AFIA Worldwide Ins.
Co., 937 F.2d 274, 279-80 & n.6 (5th Cir. 1991). If it satisfies
that burden, the non-movant must identify specific evidence in the
summary judgment record demonstrating that there is a material fact
issue concerning the essential elements of its case for which it
will bear the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Needless to say, unsubstantiated assertions are not competent
summary judgment evidence. Id. at 324. "Summary judgment, to be
sure, may be appropriate, even in cases where elusive concepts such
as motive or intent are at issue, ... if the nonmoving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Krim v. BancTexas Group, Inc., 989 F.2d
1435, 1449 (5th Cir. 1993).
As the basis for civil recovery, the appellants claimed
violations of Title III of the Omnibus Crime Control and Safe
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Streets Act of 1968, as amended by the Electronic Communications
Privacy Act of 1986, 18 U.S.C. §§ 2510-2520 (the Act), alleging the
intentional interception, disclosure, and use of wire
communications.11 (The Act frequently makes reference to "this
chapter"; for purposes of this opinion, it is found in Chapter 119
of 18 U.S.C.) The district court granted summary judgment on the
grounds that (1) there was no evidence that the appellees had
intercepted the conversations; and (2) the appellees did not
violate the Act either by disclosing to other officials, for
purposes of the internal affairs investigation, information
obtained from an illegal wiretap, § 2517(1), or by using that
information in the investigation, § 2517(2).12
"[The Act] has as its dual purpose (1) protecting the privacy
of wire and oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the interception
11
Section 2520, which authorizes civil recovery for violations
of the Act, states in pertinent part:
[A]ny person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used in violation of this chapter may
in a civil action recover from the person or entity
which engaged in that violation such relief as may
be appropriate.
18 U.S.C. § 2520(a).
12
The district court did not base its ruling on the individual
appellees' qualified immunity claim. Of course, even if we were to
conclude that the reasons given by the district court do not
support summary judgment, we may affirm it on any other grounds
supported by the record. E.g., Chevron U.S.A., Inc. v. Traillour
Oil Co., 987 F.2d 1138, 1146 (5th Cir. 1993). In any event, as
discussed infra, we affirm on grounds relied upon by the district
court.
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of wire and oral communications may be authorized." Gelbard v.
United States, 408 U.S. 41, 48 (1972) (quoting S. Rep. No. 1097,
90th Cong., 2d Sess., 66 (1968), reprinted in 1968 U.S.C.C.A.N.
2112, 2153).
[The Act] authorizes the interception of private
wire and oral communications, but only when law
enforcement officials are investigating specified
serious crimes and receive prior judicial approval,
an approval that may not be given except upon
compliance with stringent conditions ....
Unauthorized interceptions and the disclosure or
use of information obtained through unauthorized
interceptions are crimes, ... and the victim of
such interception, disclosure, or use is entitled
to recover civil damages .... [The Act] also bars
the use as evidence before official bodies of the
contents and fruits of illegal interceptions, ...
and provides procedures for moving to suppress such
evidence in various proceedings ....
Id. at 46. "[A]lthough [the Act] authorizes invasions of
individual privacy under certain circumstances, the protection of
privacy was an overriding congressional concern". Id. at 48. "The
Act represents a comprehensive attempt by Congress to promote more
effective control of crime while protecting the privacy of
individual thought and expression." United States v. United States
District Court, 407 U.S. 297, 301-02 (1972).
A.
Except as authorized, the Act prohibits the intentional
interception of wire communications.13 "A telephone conversation
13
The Act provides, in relevant part:
(1) Except as otherwise specifically provided
in this chapter[,] any person who --
(a) intentionally intercepts,
endeavors to intercept, or procures any
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is a wire communication." Briggs v. American Air Filter Co., Inc.,
630 F.2d 414, 417 (5th Cir. 1980).14 "Intercept" is defined as "the
aural or other acquisition of the contents of any wire, electronic,
or oral communication through the use of any electronic,
mechanical, or other device". 18 U.S.C. § 2510(4). And, "the
wording of the statute, while broad, requires that interceptions be
intentional before liability attaches, thereby excluding
inadvertent interceptions". Thompson v. Dulaney, 970 F.2d 744, 748
(10th Cir. 1992).15 An "interception" "require[s] participation by
other person to intercept or endeavor to
intercept, any wire, oral, or electronic
communication ...
shall be subject to suit ....
18 U.S.C. § 2511(1)(a). As noted, "this chapter", as used in the
foregoing section, refers to the Act.
14
"Wire communications, unlike oral communications, are
protected against interception by electronic, mechanical, and other
devices regardless of the speaker's expectation of privacy".
Briggs, 630 F.2d at 417 n.4.
15
In United States v. Savage, 564 F.2d 728 (5th Cir. 1977), our
court, addressing a situation in which a motel switchboard operator
stayed on the telephone line and overheard a suspicious
conversation, stated:
We find no evidence that Congress in passing
[the Act] ... intended such conduct to be unlawful
.... This is not the case of an illegal wiretap by
the Government or the case of a malicious violation
of one person's privacy by another through
intentional eavesdropping. It is the simple case
of a motel switchboard operator who inadvertently
heard a suspicious conversation in the course of
her employment and in good faith told a policeman
what she had heard. The telephone conversation was
therefore admissible as evidence [in the criminal
prosecution].
Id. at 732.
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the one charged with an `interception' in the contemporaneous
acquisition of the communication through the use of the device."
United States v. Turk, 526 F.2d 654, 658 (5th Cir.), cert. denied,
429 U.S. 823 (1976).16 "[N]o new and distinct interception occurs
when the contents of a communication are revealed through the
replaying of a previous recording." Id. at 659.
Appellants conceded at oral argument that the appellees did
not install any device or listen to any conversations; nor is there
any evidence either that the appellees actually participated in
causing the lines to be wired so that the Dulworths could intercept
the conversations, or that, prior to the September 22 meeting
between Barr, Grogan, and appellee Walker, the appellees had any
knowledge that the Dulworths were able to do so. Nevertheless, the
appellants assert that the appellees are liable for intercepting
those conversations. As factual support for this claim, they rely
in large part on the fact that the appellees, after learning about
the Dulworths' ability to intercept, allowed the situation to
continue for almost two weeks before having a possible wiretap
Similarly, in United States v. Campagnuolo, 592 F.2d 852 (5th
Cir. 1979), an FBI agent reconnected an unplugged telephone during
the execution of a search warrant and received 42 calls. Our court
held that this did not violate the Act, despite the fact that the
FBI never obtained judicial authorization for the challenged
activity: "Even if we assume that these actions constituted an
`interception' under [the Act], it is clear that they did not
violate that statutory scheme." Id. at 862.
16
On summary judgment, the non-movant "can raise a question of
fact regarding ... actual interception of his conversations without
proving the contents of specific conversations allegedly
intercepted". Walker v. Darby, 911 F.2d 1573, 1578 (11th Cir.
1990).
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investigated. They also claim a conspiracy, maintaining that the
appellees are therefore liable for the alleged illegal
interception, even if they did not participate in it.
In support of their summary judgment motion, the appellees
submitted considerable evidence that, after the September 22
meeting, no City employee, including appellees Walker, Rollins, or
Vines, procured anyone to monitor the calls. This evidence
included Joyce Dulworth's deposition testimony that she did not
have an agreement with the City or any police officers to furnish
them information that she intercepted; that Jennings did not ask
her to notify him if she intercepted anything else; and that no one
told her to listen to future calls. Likewise, in their affidavits,
Walker and Rollins stated that they did not have an agreement with
anyone that the contents of intercepted conversations would be
reported to them or anyone else.
The appellees also submitted evidence pointing out the
weaknesses in the evidence supporting the appellants' interception
claims, including Forsyth's, Kirks', and Susan Bruton's deposition
testimony, which reflects only conclusory, unsubstantiated claims
that the appellees arranged to receive additional information after
the September 22 meeting,17 and Kirks' and Forsyth's interrogatory
17
Forsyth testified:
Q: Do you have any knowledge, either
firsthand or hearsay knowledge, that the police
department made some kind of arrangement with
anyone to continue to receive information from Mrs.
Dul[]worth or any of the Dul[]worths after
September 22nd, 1988?
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A: By leaving the telephone tap in place,
which allowed the Dul[]worths to continue to
monitor conversations and to continue to get back
to Grogan and continue to get back to John Barr,
who returned to the police department with more
information off the telephone, yes.
Q: I'm asking you if you have any evidence
or any information about an affirmative agreement
between the Dallas Police Department and anyone
else that they would give further information to
the Dallas Police Department?
A: Other than the fact that John Barr told
the Internal Affairs Division that he didn't want
the Dul[]worths bothered in so many words; that he
had more information that he had, based on hearsay;
and he was planning to come back with more
information. The telephone remained unsecure.
They did not call Southwestern Bell. They allowed
the telephone to remain in place. All those
indicate to me that they had an agreement.
Kirks testified:
A. I think it is a matter of record of what
Jagg[]i [an assistant City Attorney] told them. He
says it is a wiretap. Get away from it.
....
And if he is telling them it is a wiretap and
to get away from it and they don't get away from
it, they do continue to monitor, then in all
likelihood they are going to come back and try to
cover their butts and lie, and they did lie, and
they are still lying today. That's speculation,
but I am sure going to court with it.
Q. So it is your contention that Louis
Jagg[]i told them not to monitor the phones and
they did it anyway?
A. Absolutely.
....
They are monitoring it. They are also intercepting
it, even though they are procuring another person
to do it.
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answers. When asked what actions by Vines, Rollins, and Walker
violated the Act, they responded that each "illegally used
information obtained from an illegal telephone interception";
illegal interception by the appellees was not claimed. (Emphasis
added.) Another interrogatory asked the appellants to state the
factual basis for their assertion that Walker, Rollins, and Vines
prearranged to receive illegally intercepted information. In
essence, they responded that the appellees, after being made aware
on September 22 of the interception, continued to receive
information from intercepted conversations, and failed to take
steps to have the tap removed until October 4.18
Q. Whom did they procure to do it for them?
A. I don't know. John Barr and George
Grogan are the one[s] that brought it up to the
I.A.D. [Internal Affairs Division] complaint.
Q. So you think they had an arrangement with
John Barr and George Grogan that they were supposed
to keep them posted or go out there and gather more
information?
A. Certainly. Why else would they leave it
in place? ....
(Claiming the attorney-client privilege, the City consistently
objected to the appellants' attempts to testify about advice
allegedly given to Walker and Rollins by attorneys with the City
Attorney's Office.)
Susan Bruton testified:
Q. Specifically, what is it in this case
that the City of Dallas did which acted in
furtherance of the unlawful telephone activities?
A. They permitted the wiretap to continue.
18
Forsyth and Kirks responded to the interrogatory as follows:
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1.
With their response to the summary judgment motion, the
appellants filed two volumes of evidentiary material, tabbed "A"
through "VV", but referred specifically to only four items: Tab
"A", the 177-page internal affairs investigation report and
attachments (without pointing to any specific portions of this
document); and Tabs "B", "C", and "E" -- the individual appellees'
interrogatory answers regarding the basis for their good faith
On September 22, 1988[,] the police officials were
made aware of the telephone conversations that were
illegally intercepted, used and disclosed. Because
the illegally intercepted telephone conversations
involved two of their employees, they attempted to
continue to monitor these conversations by seeking
advice from [the] City Attorney's Office. When
they realized the illegality of the situation they
not only failed to check for a device which enabled
these conversations to be illegally intercepted by
a known target who was in the Targeted Offender
Program in the Intelligence Division, but they also
continued to receive information provided by the
Targeted Offender's family as they continued to
listen in to more illegally intercepted telephone
conversations. When Detective Jennings sent
Southwestern Bell to the location to check for a
device enabling these illegally intercepted
telephone conversations on October 4, 1988[,] a
device was in fact removed. When the police
officials learned that Southwestern Bell had in
fact removed a device they became very upset that
this was done without their approval. The
aforementioned circumstances could hardly be
characterized as "inadvertent".
Susan and Charles Bruton responded to this same interrogatory as
follows:
Do not understand question. The information is in
Dallas Police Department I.A.D. file and
depositions of Lt. Jennings and John James
indicated that these defendants had knowledge and
did nothing to correct the situation.
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defenses. These specific references were cited in opposition to
the individual appellees' qualified immunity claim.
When the movant has made a properly supported motion for
summary judgment by demonstrating an absence of evidence to support
the non-movants' case, as the appellees did, the non-movants must
"go beyond the pleadings and by ... affidavits, or by the
`depositions, answers to interrogatories, and admissions on file,'
designate `specific facts showing that there is a genuine issue for
trial'." Celotex Corp. v. Catrett, 477 U.S. at 324 (quoting Fed.
R. Civ. P. 56(e)) (emphasis added); see also Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied,
___ U.S. ___, 113 S. Ct. 98 (1992).
Accordingly, the appellants had the burden of presenting
evidence sufficient to demonstrate the existence of a material fact
issue on whether the appellees intentionally intercepted their
conversations. See, e.g., Anderson v. Liberty Lobby, Inc., 477
U.S. at 257. To satisfy this burden, they were required to
identify specific evidence in the record, and to articulate the
"precise manner" in which that evidence supported their claim.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied,
___ U.S. ___, 113 S. Ct. 82 (1992); see also Krim v. BancTexas
Group, Inc., 989 F.2d at 1443.
They did not do so. Instead, they offered only vague,
conclusory assertions that their "evidentiary materials ...
demonstrate circumstantial evidence of a conspiracy and/or joint
action on the part of Vines, Walker, Rollins, and the City"; that
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"there is clear evidence that the aim of the conspiracy was to use
information from illegally intercepted telephone conversations
presented to these Defendants by Barr, Grogan and the Dulworths";
and that "there is abundant evidence, both circumstantial and
direct, that would allow a jury to find that the City and its
employee Defendants worked together to accomplish and cause an[]
illegal wiretap to remain in place and thereafter use information
obtained from an illegal wiretap in violation of ... [the Act]".
But, although they submitted two volumes of evidentiary material,
they did not identify the specific portions of such evidence (if
any) that supported their illegal interception claim. The
appellants' response and supporting evidence are insufficient to
preclude summary judgment. "Rule 56 does not impose upon the
district court a duty to sift through the record in search of
evidence to support a party's opposition to summary judgment".
Skotak, 953 F.2d at 915 & n.7.
Nor is it our duty to do so on appeal. The appellants'
opening brief contains similar conclusory assertions that they
presented direct and circumstantial evidence that the appellees
conspired with Barr, Grogan, and the Dulworths. But, contrary to
Fed. R. App. P. 28(a)(5), they furnished no record cites to such
evidence. In their reply brief, for the first time, they attempt
to designate specific portions of the record to support their
opposition to summary judgment. This attempt comes far too late --
obviously, it should have been done in the district court. See,
e.g., Topalian, 954 F.2d at 1131-32 n.10; cf. United States v.
- 20 -
Prince, 868 F.2d 1379, 1386 (5th Cir.) ("This Court will not
consider a new claim raised for the first time in an appellate
reply brief".), cert. denied, 493 U.S. 932 (1989).
2.
But, even if we were to consider the evidentiary material
designated for the first time in the reply brief, we would still
affirm summary judgment on the interception claim. That evidence,
viewed in the light most favorable to the appellants, establishes
only that the appellees (1) knew that some of the information
related to Walker at the September 22 meeting was obtained from
telephone conversations overheard by Mrs. Dulworth, and (2) failed
to investigate promptly a possible wiretap.
This notwithstanding, relying on Adickes v. S. H. Kress & Co.,
398 U.S. 144 (1970), the appellants maintain that the appellees did
not satisfy their initial burden under Rule 56 because they "failed
[to] produce evidence which would completely nullify any inference
of a conspiracy". This reliance is misplaced because, unlike the
plaintiff in Adickes, the appellants did not plead conspiracy. See
id. at 148. Therefore, the appellees, as part of their summary
judgment burden, were not required to demonstrate the absence of a
material fact issue as to conspiracy. Nevertheless, as described
above, they submitted considerable evidence negating its existence.
And, as also described earlier, this evidence was not refuted by
the appellants in a manner sufficient to satisfy Rule 56.
In light of the appellants' scant proof, a reasonable jury
could not return a verdict for them (non-movants) on the claim that
- 21 -
the appellees intentionally intercepted, endeavored to intercept,
or procured anyone to intercept, the conversations; therefore,
there was not a material fact issue on this claim.19 Accordingly,
summary judgment on the interception claim is proper.
B.
With certain exceptions, § 2511(1)(c) and (d) of the Act
prohibit the intentional disclosure or use of information obtained
through a wire intercept if the person doing so "knew or had reason
to know that the interception itself was in violation of [the
Act]". United States v. Wuliger, 981 F.2d 1497, 1501 (6th Cir.
1992).20 Liability for disclosure or use requires proof that it was
19
We note that some of that evidence is challenged by the
appellees as inadmissible hearsay or, again, as being based on
matters within the scope of the attorney-client privilege. We need
not reach those contentions; even considering the challenged
evidence, a material fact issue is lacking.
20
The Act provides in pertinent part:
(1) Except as otherwise specifically provided
in this chapter any person who --
....
(c) intentionally discloses, or
endeavors to disclose, to any other
person the contents of any wire, oral, or
electronic communication, knowing or
having reason to know that the
information was obtained through the
interception of a wire, oral, or
electronic communication in violation of
this subsection; or
(d) intentionally uses, or endeavors
to use, the contents of any wire, oral,
or electronic communication, knowing or
having reason to know that the
information was obtained through the
interception of a wire, oral, or
- 22 -
intentional, that the information was obtained from an intercepted
communication, and that the defendant knew or should have known
that the interception was illegal.21 Accordingly, "knowledge or
electronic communication in violation of
this subsection;
shall be punished ... or shall be subject to suit
....
18 U.S.C. § 2511(1)(c) and (d).
21
Liability for intercepting or procuring another to
intercept communications under subsections (a) and
(b) of § 2511(1) requires that a plaintiff prove
intentional conduct. However, liability under
subsections (c) and (d) of § 2511(1) for use and
disclosure of information obtained from the
contents of intercepted communications requires
more. The use or disclosure must still be
intentional, but in addition, a plaintiff must show
that a defendant "know[s] or ha[s] reason to know
that the information was obtained through the
interception of a wire, oral, or electronic
communication in violation of this subsection."
This language, found in each of subsections (c) and
(d), compels the conclusion that, to establish
liability under one of those sections, a plaintiff
must demonstrate a greater degree of knowledge on
the part of a defendant. The defendant must know
1) the information used or disclosed came from an
intercepted communication, and 2) sufficient facts
concerning the circumstances of the interception
such that the defendant could, with presumed
knowledge of the law, determine that the
interception was prohibited in light of [the Act].
Although a defendant may be presumed to know
the law, ... to establish use and disclosure
liability under [the Act], a defendant must be
shown to have been aware of the factual
circumstances that would violate the statute. For
example, it is not enough to show that a defendant
merely knew he was using or disclosing information
from an intercepted communication. It must also be
shown that the defendant knew, inter alia, that
neither party to the intercepted conversation had
consented to the interception.
- 23 -
reason to know of the illegality is an element of this offense".
Id.
Although there is a factual dispute as to when or whether the
appellees knew, or should have known, that the communications might
have been intercepted illegally, it is undisputed that, in
connection with conducting the preliminary internal affairs
investigation, and without investigating the legality of the
interception, the appellees (1) disclosed the contents of
intercepted communications to other law enforcement officers; and
(2) used those contents -- to the extent that the charges against
Forsyth were based on the communications.22 We assume an illegal
interception.23 Civil liability for such disclosure and use, in
such an investigation, of information derived from an illegal
interception, when the information was obtained from a third party
interceptor without wrongdoing by the officers, appears to be an
issue of first impression.
The appellees maintain that the summary judgment on the
disclosure and use claim can be affirmed on two separate bases: (1)
the interception was impliedly consented to by the appellants, each
of whom used the Brutons' telephone with awareness that it was not
Thompson v. Dulaney, 970 F.2d at 749 (emphasis in original;
citations omitted).
22
It is not clear from the record whether some, or all, of the
contents were disclosed and used. Because we view the evidence in
the light most favorable to the non-movants, we assume the latter.
23
Because of possible defenses, such as consent, see §
2511(2)(c), (d), we do not reach whether the interception by either
the Dulworths, or Barr, or Grogan was illegal. As noted, the
appellants settled with each.
- 24 -
secure; and (2) the disclosure and use was authorized by the Act,
§ 2517(1) and (2). In addition, the individual appellees (Vines,
Walker, and Rollins) claim qualified immunity, asserting that there
was no clearly established law that an internal investigation of a
police officer, based upon information presented to her superiors
that was overheard by a third party, violates the Act. And, the
City maintains that the Act does not permit municipal liability.
See 18 U.S.C. § 2520(a) (Supp. 1993). Because we hold that the
disclosure and use were permitted by § 2517(1) and (2), we need not
reach the other issues.24
1.
At the outset, we reject the appellants' contention that
illegally intercepted information cannot be used for any purpose
whatsoever. In support, they rely on § 2515, which provides:
Whenever any wire or oral communication has
been intercepted, no part of the contents of such
communication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand
jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the
24
As discussed infra, whether the Act proscribes the disclosure
and use is a difficult issue. This militates in favor of reaching
the qualified immunity claim instead. But, even if the individual
defendants/appellees were sheltered by such immunity, the liability
vel non of the City would remain; and that issue calls into play a
statutory construction question that is perhaps as difficult, if
not more so, than that for disclosure and use. See, e.g., 18
U.S.C. §§ 2510(6), 2511(1), 2520(a) (amended in 1986 to include any
"entity" as a party from which civil recovery is permitted);
Bodunde v. Parizek, 1993 WL 189941 (N.D. Ill. 1993); PBA Local No.
38 v. Woodbridge Police Department, 832 F. Supp. 808 (D.N.J. 1993);
Amati v. City of Woodstock, IL, 829 F. Supp. 998 (N.D. Ill. 1993).
For this reason, and because addressing whether disclosure and use
is statutorily permitted pertains to all of the
defendants/appellees, we address that issue.
- 25 -
United States, a State, or a political subdivision
thereof if the disclosure of that information would
be in violation of this chapter.
18 U.S.C. § 2515.25
Section 2515 is "the statutory exclusionary rule". Fleming v.
United States, 547 F.2d 872, 873 (5th Cir.), cert. denied, 434 U.S.
831 (1977); see also United States v. Wuliger, 981 F.2d at 1505
(same); United States v. Cianfrani, 573 F.2d 835, 855 (3d Cir.
1978) (same); United States v. Phillips, 540 F.2d 319, 325 (8th
Cir.) (§ 2515 "imposes an evidentiary sanction to compel compliance
with § 2511"), cert. denied, 429 U.S. 1000 (1976). It "serves not
only to protect the privacy of communications, but also to ensure
that the courts do not become partners to illegal conduct: the
evidentiary prohibition was enacted also `to protect the integrity
25
Our court has described § 2515 as "poorly drafted":
Read literally, the provision is circular; it
proscribes the reception into evidence (and thus
the disclosure) of information the disclosure of
which "would be in violation of this chapter."
"Disclosure" apparently refers to disclosure at
trial rather than disclosure among various
departments of the government at some earlier
point; otherwise, the statute would presumably
refer to information the disclosure of which "has
been" in violation of the chapter. At any rate,
the provision should not be read in an overly
literal fashion. The section's primary purpose is
apparently to exclude evidence derived from
illegal, rather than legal, wiretaps. The
section's main thrust is therefore to exclude
evidence the seizure of which was in violation of
the chapter, not evidence the disclosure of which
was or would be in violation of the chapter.
Fleming v. United States, 547 F.2d 872, 874 (5th Cir.), cert.
denied, 434 U.S. 831 (1977).
- 26 -
of court and administrative proceedings'". Gelbard, 408 U.S. at 51
(footnote omitted).
Section 2515 is not applicable. The intercepted information
was used only in the sense that it was investigated because it was
the basis for some of the charges against a police officer. The
information was not offered or introduced into evidence at any
trial, hearing, or proceeding, but was instead the subject of an
investigation. The Dallas Police Department General Orders Code of
Conduct (1988), submitted by the appellees in support of their
summary judgment motion, provides for complaint investigations to
be classified as either "formal, preliminary, or summary
(informal)". As noted, preliminary investigations, such as the one
at issue, do "not reflect on the personnel record of any member
involved unless a violation is identified, in which case a formal
complaint will be authorized by the Internal Affairs Division
Commander". The investigation was conducted through telephone and
personal interviews and written reports; there was no hearing or
other proceeding in which evidence was introduced.
We agree with the Court of Appeals for the District of
Columbia that "[t]he statutory context ... in which `proceeding'
appears in company with `trial' and `hearing,' suggests something
similarly adversarial -- not an ex parte administrative
determination of the sort here at issue [a non-responsibility
determination made by an Air Force contracting officer]". Cubic
Corp. v. Cheney, 914 F.2d 1501, 1504 (D.C. Cir. 1990). The title
of § 2515 -- "Prohibition of use as evidence of intercepted wire or
- 27 -
oral communications" (emphasis added) -- clearly supports that
interpretation. As the Cubic Corp. court noted, § 2515 also
contains "an express reference to the powers of `the judge' before
whom the `motion to suppress' is to be made .... The more sensible
reading is that the statute applies only to an adversarial
proceeding, like a trial or other hearing, before a `judge.'" Id.
at 1504. That reasoning applies with equal force here. A
preliminary internal affairs investigation is not a realistic forum
in which to move to suppress the wiretap information, because it
does not include any sort of "hearing" at which a judge presides.26
The Cubic court pointed out that the legality of the use of
intercepted information could be challenged "when a court reviews
an administrative decision on a record that allegedly contains
unlawfully intercepted wiretap information", by moving to suppress
26
The Cubic court stated:
As a practical matter, ... an ex parte
administrative determination is not a realistic
forum in which to raise a Title III claim. The
party to which the wiretap information applies
would have to be given an opportunity to make
something like a `motion to suppress' the
information before the agency could consider it, a
hearing would have to be convened, and a ... judge
brought in to preside. Meanwhile, the agency could
not make a decision, or at least not a decision
adverse to the subject of the wiretap information.
All this seems like a most improbable way of doing
business, and until the agency actually makes an
adverse decision based upon the wiretap
information, an unnecessary complication, too.
Without clearer congressional direction to that
effect, we are reluctant to conclude that [the Act]
was meant to be so disruptive a force in the
administrative process.
914 F.2d at 1504.
- 28 -
under § 2518. Id. at 1506.27 Similarly, if the internal affairs
investigation had identified a violation and a formal complaint had
been filed, resulting in an adverse determination, Forsyth and
Kirks would have been free to challenge in court the Internal
Affairs Division's reliance on information derived from the
wiretap.
Moreover, even in the context of an adversarial proceeding to
which § 2515 applies, that section does not preclude all use of
illegally intercepted information. For example, in United States
v. Caron, 474 F.2d 506, 508-10 (5th Cir. 1973), our court held that
unlawfully intercepted information may be used for impeachment.
Three other circuits also have recognized this impeachment
exception in criminal cases. United States v. Echavarria-Olarte,
904 F.2d 1391 (9th Cir. 1990); United States v. Vest, 813 F.2d 477,
484 (1st Cir. 1987) (recognizing impeachment exception, but
declining "to read into [§] 2515 an exception permitting the use of
27
The Cubic court noted:
Our decision does not preclude the Air Force
from considering untested wiretap information in
making a non-responsibility determination, without
thereby creating a right in anyone to challenge the
provenance of that information. If the agency's
decision is challenged in a subsequent judicial
proceeding, however, an aggrieved person has the
same right to move to suppress the information as
that person would have if the agency were formally
moving the admission of the information in evidence
before the court. In other words, if an agency
relies upon wiretap evidence in rendering a
reviewable decision, it must be prepared to defend
in court the legality, under [the Act], of the
wiretap that produced it.
Id. at 1506.
- 29 -
illegally-intercepted communications in perjury prosecutions");
Anthony v. United States, 667 F.2d 870 (10th Cir. 1981), cert.
denied, 457 U.S. 1133 (1982).28
Finally, § 2515 is not self-executing, but is instead
dependent upon a motion to suppress, pursuant to § 2518(10)(a) (any
aggrieved person may move to suppress the contents of any
unlawfully intercepted communication). That section "provides the
remedy for the right created by [§] 2515." S. Rep. No. 1097, 90th
Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2195; see
United States v. Cianfrani, 573 F.2d at 855; United States v.
Phillips, 540 F.2d at 325; In re Evans, 452 F.2d 1239, 1243-44
(D.C. Cir. 1971) ("the committee report which accompanied the Act
explicitly indicated the committee's expectation that § 2518(10)(a)
would be read as the remedy for, and hence limitation on the
`right' created by § 2515"), cert. denied, 408 U.S. 930 (1972).
Based on the foregoing, § 2515 cannot bear the weight
appellants assign it. A police department internal affairs
division's disclosure or use of information, furnished by a third
party, to conduct a preliminary investigation in a non-adversarial
context is not a violation of § 2515; it cannot support a civil
action under the Act. Such an action must be grounded, instead, on
28
The impeachment exception has not been extended to civil
cases. Williams v. Poulos, 11 F.3d 271, 288 (1st Cir. 1993);
United States v. Wuliger, 981 F.2d at 1506; Anthony v. United
States, 667 F.2d at 879; cf. United States v. Farese, 611 F.2d 67,
71 (5th Cir. 1980) (although § 2515 does not apply to evidence used
solely for impeachment purposes, Congress "did not intend to make
an exception for sentencing hearings, bail revocation hearings, or
any other proceeding in which evidence is being introduced
affirmatively by the government").
- 30 -
violations of §§ 2511(1)(c) (disclosure) and (d) (use).29 As noted,
in such an action, the plaintiff "must demonstrate `1) the
information used or disclosed came from an intercepted
communication, and 2) sufficient facts concerning the circumstances
of the interception such that the defendant could, with presumed
knowledge of the law, determine that the interception was
prohibited in light of [the Act]'". Williams v. Poulos, 11 F.3d at
284 (quoting Thompson v. Dulaney, 970 F.2d at 749). "This
demonstration includes a showing that any statutory exceptions
asserted by a defendant do not, in fact, apply". Id. Accordingly,
we turn to the exceptions claimed to be found in § 2517(1) and (2).
2.
Subsections 2511(1)(c) and (d) are qualified by the
introductory phrase, "Except as otherwise specifically provided in
this chapter [the Act]". 18 U.S.C. § 2511(1). In other words,
although the disclosure or use of illegally intercepted
communications by a person who knows or should know of the
illegality of the interception is usually proscribed, it may be
authorized under other provisions of the Act. And, as stated, the
district court held that, in conducting the investigation, the
appellees' disclosure (to other law enforcement officers) and use
of the intercepted information were authorized by § 2517(1) and
(2). Those subsections provide that a "law enforcement officer
29
Of course, liability may lie under § 2511(1)(a) against a
person who intercepted, or procured another to intercept, the
communications. As noted, the appellants settled with the claimed
interceptors -- the Dulworths, Barr and Grogan.
- 31 -
who, by any means authorized by this chapter [the Act], has
obtained knowledge of the contents of" intercepted communications,
may disclose or use those contents as "appropriate to the proper
performance of [his] official duties".30
These subsections provide "for limited non-public disclosure.
Disclosure by one law enforcement officer to another, and use of a
communication by a law enforcement officer in the performance of
his duty, are authorized if such disclosure or use is appropriate
to the `proper performance of the official duties of the officer'".
United States v. Cianfrani, 573 F.2d at 855 n.7. The statutory
phrase, "appropriate to the proper performance of the [officer's]
official duties" was "designed to protect the public from
unnecessarily widespread dissemination of the contents of
30
The Act states in relevant part:
(1) Any investigative or law enforcement
officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such
contents to another investigative or law
enforcement officer to the extent that such
disclosure is appropriate to the proper performance
of the official duties of the officer making or
receiving the disclosure.
(2) Any investigative or law enforcement
officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication or
evidence derived therefrom may use such contents to
the extent such use is appropriate to the proper
performance of his official duties.
18 U.S.C. § 2517(1) and (2).
- 32 -
interceptions and from the wholesale use of [such] information ...
by an officer ... for personal or illegal purposes". United States
v. Daniel, 667 F.2d 783, 784 (9th Cir. 1982) (quoting United States
v. Hall, 543 F.2d 1229, 1233 (9th Cir. 1976) (en banc), cert.
denied, 429 U.S. 1075 (1977)).
Vines, Walker, and Rollins are "law enforcement officers"
within the meaning of §§ 2517(1) and (2) and 2510(7).31 And, their
disclosure and use of information related to them by Barr and
Grogan was "appropriate to the proper performance of [their]
official duties", as required by § 2517(1) and (2); appellants do
not claim otherwise.32 Rather, the dispute centers solely on
whether the officers obtained the information by a "means
authorized by" the Act, as also required by § 2517(1) and (2). The
appellants contend that the district court created an "internal
affairs" exception not sanctioned by the Act, asserting that the
phrase "by any means authorized by this chapter" in § 2517(1) and
31
The Act defines "investigative or law enforcement officer" as:
any officer of the United States or of a State or
political subdivision thereof, who is empowered by
law to conduct investigations of or to make arrests
for offenses enumerated in this chapter, and any
attorney authorized by law to prosecute or
participate in the prosecution of such offenses.
18 U.S.C. § 2510(7). It is undisputed that Vines, Walker, and
Rollins fall within this definition.
32
The Dallas Police Department General Orders for 1988 require
the Internal Affairs Division to "[e]nsure the complete and
impartial investigation of all complaints against any employee of
the Department". Those Orders provide further that "[a]n
investigation will be conducted into all allegations of criminal
misconduct regardless of the source". (Emphasis added.)
- 33 -
(2) limits disclosure and use to only information obtained through
a judicially authorized wiretap.33
The Act ("this chapter") includes only 11 sections. The
phrase "by any means authorized by this chapter" in § 2517 is not
covered in the definitions section, § 2510. Section 2511 does
provide for lawful intercepts without a judicial order, such as
when, under certain circumstances, the interceptor is also a party
to the communication, or a party to the communication has given
prior consent. See 18 U.S.C. § 2511(2)(c) and (d). But, the Act
does not address expressly someone unlawfully intercepting a
communication, and then providing that information to law
enforcement officers.
Because the plain wording of the Act does not address the
situation at hand, we must engage in statutory construction. In so
doing, we are aware from our court's past experiences, as reflected
in part in note 25, supra, that construction of the Wiretap Act is
fraught with trip wires. See, e.g., Briggs v. American Air Filter
Co., Inc., 630 F.2d 414 (5th Cir. 1980); Fleming v. United States,
547 F.2d at 873 ("Our analysis of ... [§§ 2515 and 2517] makes us
confident of only one conclusion: the statute is not a model of
clarity"); Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert.
denied, 419 U.S. 897 (1974). As hereinafter reflected,
construction of § 2517(1) and (2) is no exception; we balance on a
33
Of course, the Act provides that information intercepted in
specified other ways does not run afoul of its general proscription
against interceptions. See, e.g., § 2511(2)(c) and (d).
- 34 -
high wire. The one clear, and most helpful, signal is the
legislative history, quoted later.
As described, § 2517(1) and (2) concern "investigative or law
enforcement officer[s] who, by any means authorized by this
chapter, [have] obtained knowledge" of communications, and provide
that they may disclose or use such contents as "appropriate to the
proper performance of the official duties of the officer [either]
making or receiving the disclosure", or using the information.
Section 2517, read as a whole, runs counter to appellants'
contention that the phrase "by any means authorized by this chapter
[the Act]" limits disclosure and use under § 2517(1) and (2) to
that information obtained either through a judicially-authorized
wiretap or otherwise in accordance with the Act.
The plain wording of § 2517(3) aids in convincing us that
disclosure and use under § 2517(1) and (2) of unlawfully
intercepted information that is otherwise conveyed lawfully to law
enforcement officers is permitted; in sum, that information
disclosed or used under those subsections need not be only that
which is intercepted "in accordance with" the Act:
Any person who has received, by any means
authorized by this chapter, any information
concerning a wire, oral, or electronic
communication, or evidence derived therefrom
intercepted in accordance with the provisions of
this chapter may disclose the contents of that
communication or such derivative evidence while
giving testimony under oath or affirmation in any
proceeding held under the authority of the United
States or of any State or political subdivision
thereof.
- 35 -
18 U.S.C. § 2517(3) (emphasis added). This subsection, while using
the phrase "by any means authorized by this chapter" also found in
§ 2517(1) and (2), uses a phrase not found there: "intercepted in
accordance with the provisions of this chapter". In other words,
anyone who lawfully receives information that was also intercepted
in compliance with the Act is allowed greater disclosure of that
information than is permitted by the more narrow boundaries of §
2517(1) and (2); that person may disclose that information through
testimony in designated proceedings. And, obviously, had Congress
wanted to likewise limit § 2517(1) and (2) disclosure and use to
only that information "intercepted in accordance with" the Act, it
knew how to say so.
Furthermore, to read § 2517(3) so that "by any means
authorized by this chapter" equates with "in accordance with the
provisions of this chapter", as appellants would have to do, would
render the latter phrase superfluous. Needless to say, a maxim of
statutory construction precludes one part being read so as to
render another superfluous. E.g., United States v. Chen, 913 F.2d
183, 190 (5th Cir. 1990) (quoting Duke v. University of Texas, 663
F.2d 522, 526 (5th Cir. 1981)) ("It is well established that a
statute should be construed so that each of its provisions is given
its full effect; interpretations which render parts of a statute
inoperative or superfluous are to be avoided.").
The use permitted under § 2517(1) and (2) for unlawfully
intercepted information that was received lawfully by an officer
also seems supported by § 2517(5), which states:
- 36 -
When an investigative or law enforcement
officer, while engaged in intercepting wire, oral,
or electronic communications in the manner
authorized herein, intercepts wire, oral, or
electronic communications relating to offenses
other than those specified in the order of
authorization or approval, the contents thereof,
and evidence derived therefrom, may be disclosed or
used as provided in subsections (1) and (2) of this
section. Such contents and any evidence derived
therefrom may be used under subsection (3) of this
section when authorized or approved by a judge of
competent jurisdiction where such judge finds on
subsequent application that the contents were
otherwise intercepted in accordance with the
provisions of this chapter. Such application shall
be made as soon as practicable.
18 U.S.C. § 2517(5) (emphasis added). Pursuant to this section,
information obtained by an officer conducting an authorized
wiretap, even though it is outside the boundaries specified in the
authorization order, may be used for the purposes of § 2517(1) and
(2), such as for an internal investigation, but may not be used for
a more extensive or public purpose (testimony in the type
proceeding specified in § 2517(3)), unless first authorized by a
judge. This, again, demonstrates the distinction between public
disclosure through testimony and disclosure or use for "the proper
performance of the official duties" of a law enforcement officer,
as in the investigation in this case. Much greater latitude is
allowed for the source of information for the latter.
It can be argued that the exception permitted under § 2517(5)
(for § 2517(1) and (2) disclosure and use of information outside
that permitted by a wiretap order) is the only exception to the
Act's proscribing the disclosure or use of information not obtained
in accordance with the Act -- that it is the exception envisioned
- 37 -
by the phrase "any means authorized by this chapter" found in §
2517(1) and (2). But, such a narrow reading of the phrase, as
urged by the appellants, would permit using only the contents of
interceptions made in accordance with the Act, such as through a
judicially-approved wiretap or by consent under certain
circumstances. This would mean that officers receiving information
about police misconduct, obtained through an illegal interception
by a third party, could not use that information to investigate,
and possibly prevent, the misconduct, no matter how serious,
imminent, or life threatening. This flies in the face of common
sense, and would require us to read § 2517(1) and (2) in a manner
that compels an absurd result.
The well established maxim against a construction that would
clothe Congress with intending such a result does not permit such
a reading in this instance. See, e.g., Public Citizen v. United
States Dep't of Justice, 491 U.S. 440, 454 (1989) (brackets,
internal quotation marks, and citation omitted) ("Frequently words
of general meaning are used in a statute, words broad enough to
include an act in question, and yet a consideration of the whole
legislation, or of the circumstances surrounding its enactment, or
of the absurd results which follow from giving such broad meaning
to the words, makes it unreasonable to believe that the legislator
intended to include the particular act."); Ecee, Inc. v. Federal
Energy Regulatory Comm'n, 611 F.2d 554, 564 (5th Cir. 1980)
(brackets, internal quotation marks, and citation omitted) ("A
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construction of a statute leading to unjust or absurd consequences
should be avoided").
Because of the lack of clarity in § 2517, we look to the Act's
legislative history. E.g., Toibb v. Radloff, ___ U.S. ___, 111 S.
Ct. 2197, 2200 (1991) (internal quotation marks omitted) ("Where
... the resolution of a question of federal law turns on a statute
and the intention of Congress, we look first to the statutory
language and then to the legislative history if the statutory
language is unclear."); Stone v. Caplan (Matter of Stone), 10 F.3d
285, 289-90 (5th Cir. 1994) (court can consider legislative history
in interpreting ambiguous statute). And, as stated earlier, that
the phrase in question cannot be read as narrowly as appellants
urge is covered expressly by that history:
Neither paragraphs (1) nor (2) [of § 2517] are
limited to evidence intercepted in accordance with
the provisions of the proposed chapter, since in
certain limited situations disclosure and use of
illegally intercepted communications would be
appropriate to the proper performance of the
officers' duties. For example, such use and
disclosure would be necessary in the investigation
and prosecution of an illegal wiretapper himself.
S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968
U.S.C.C.A.N. 2112, 2188 (emphasis added); see also United States v.
Liddy, 354 F. Supp. 217, 221 (D.C.D.C. 1973) (citing legislative
history, and rejecting contention that absolutely no disclosure is
permitted by the Act, because it would prevent persons who have
allegedly violated the Act from being prosecuted; Congress did not
intend for Act "to be self-emasculating"), aff'd, 509 F.2d 428
- 39 -
(D.C. Cir. 1974), cert. denied, 420 U.S. 911 (1975).34 No more need
be said; the facts at hand present one of the "limited situations"
forecast by the legislative history for allowing use of illegally
34
In dictum, the Second Circuit has described § 2517(1) and (2)
in a manner consistent with our reading and the legislative
history, focusing on whether the officers gained knowledge of the
contents of the intercepted communications lawfully, rather than on
whether the interception was lawful:
Subsection 1 [of § 2517] permits "any investigative
or law enforcement officer" who has lawfully
obtained knowledge of the contents of any
intercepted communication to "disclose such
contents to another investigative or law
enforcement officer to the extent that such
disclosure is appropriate" in the performance of
their official duties. Subsection 2 authorizes
investigative or law enforcement personnel who have
lawfully obtained knowledge of any intercepted
communications "to use such contents to the extent
such use is appropriate to the proper performance
of [their] official duties."
Application of Newsday, Inc., 895 F.2d 74, 76 (2d Cir.) (emphasis
added), cert. denied, 496 U.S. 931 (1990). Cf. United States v.
Vest, 813 F.2d 477 (1st Cir. 1987), discussed earlier in part
II.B.1., where the court held that, pursuant to § 2515, illegally
intercepted information was inadmissible as evidence, even though
the government played no role in the interception.
[A]n invasion of privacy is not over when an
interception occurs, but is compounded by
disclosure in court or elsewhere. The impact of
this second invasion is not lessened by the
circumstance that the disclosing party (here, the
government) is merely the innocent recipient of a
communication illegally intercepted by the guilty
interceptor.
Id. at 481. Vest is inapposite; it did not consider or address
disclosure or use authorized by § 2517(1) or (2). Instead, as
noted, it concerned § 2515 (the statutory exclusionary rule), and
involved a criminal prosecution for perjury, in which the
government sought to introduce in evidence a conversation recorded
by a third party without the defendant's knowledge. The court
"decline[d] to read into section 2515 an exception permitting the
introduction in evidence of an illegally-intercepted communication
by an innocent recipient thereof". 813 F.2d at 481.
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intercepted information.35 See also United States v. Ross, 713 F.2d
389, 392 (8th Cir. 1983) (quoting Roberts v. United States, 445
U.S. 552, 558 (1980)) ("the limitations Congress placed on the
willful disclosure of wire communications in subsection 2511(1)(c)
should not be examined in a vacuum. As the Supreme Court has
emphasized, a `deeply rooted social obligation' exists for citizens
to report felonies to the authorities").36
We hold that, under the unique facts and circumstances of this
case -- including that the appellees did not participate in or
procure the interception, and obtained knowledge of the intercepted
communications from third parties who made serious charges that an
officer was engaged in administrative and criminal misconduct --
the appellees' disclosure and use of the information from the
intercepted communications, in conducting a preliminary internal
35
But see James G. Carr, The Law of Electronic Surveillance, §
7.4(b), at 7-47 (1993) ("use of illegally obtained information
should be limited to [investigation and prosecution of persons who
violate the Act] and not expanded into other investigatory
activities or purposes, despite the suggestion in Senate Report
1097 to the contrary").
36
Cf. Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990), in which
police officers, executing a search warrant at a building, used the
owner's telephone. The owner taped all calls made on that
telephone, including an officer's to a reporter, advising about the
warrant before it was executed (a felony under Wisconsin law).
After the owner's lawyer disclosed the intercepted contents to the
police department's internal affairs division and others, the
officers sued the lawyer, and were awarded damages. The Seventh
Circuit rejected a claim to a common law privilege for statements
to police officers in the course of investigation of criminal
activity. (Needless to say, § 2517 was not in issue; the suit was
not against the police.)
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affairs investigation, was authorized by § 2517(1) and (2).37 We
caution that this holding is narrow, limited to the facts of this
case. It should not be read as undermining the salutary purpose of
the Act, or as providing a means of sidestepping it.
C.
The City's appeal had its genesis when, approximately two
years after this action was filed, Vines, who had been terminated
as Chief of Police, moved to disqualify the City Attorney as his
counsel, and requested the appointment of independent counsel, to
be paid by the City. He claimed a conflict of interest because the
City Attorney was involved in presenting charges which led to
Vines' prosecution for misdemeanor perjury in an unrelated matter.
At a hearing on the motion, Vines stated that he had presented
a claim for damages to the City, related to his discharge, and
intended to file a civil action if the matter was not resolved.
The district court granted the motion, finding that the past
relationship of Vines and the City Attorney's office, as it related
to both the perjury charge and Vines' damages claim, constituted a
sufficient basis for finding a conflict.
The City moved for reconsideration, pointing out that,
subsequent to filing his disqualification motion, Vines was
acquitted of perjury, and asserting that the order to pay
37
Our holding precludes reaching the appellants' state law
claims, which are premised on the same facts and circumstances as
their federal claims. They requested reinstatement of the state
claims only if the summary judgment on the federal claims was
reversed.
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attorney's fees exceeded the scope of the court's authority. The
court denied the reconsideration motion, stating:
The conflict arises from the City Attorney's
attempt to represent Vines in this action while
simultaneously taking an adverse position to that
of Vines in a criminal proceeding, and in Vines'
claim for damages against the City. In such a
situation, an attorney's loyalty to the client is
called into question.
We review the rulings only for abuse of discretion.38 See In
re Dresser Industries, Inc., 972 F.2d 540, 542 n.4 (5th Cir. 1992)
(citing In re Gopman, 531 F.2d 262 (5th Cir. 1976)).
The City claims first that Vines failed to establish a
conflict of interest. At the conclusion of the hearing, the court
stated that the relationships between Vines and the City "certainly
offer the greatest potential for conflict of interest that can be
imagined", and held that disqualification was necessary "in order
to ensure that Vines receives effective and impartial
representation". The court was well within its discretion.
The City asserts next that the district court should not have
reached the issue of attorney's fees. We disagree. As the
38
In July 1991, our court denied the City's petition for a writ
of mandamus concerning the disqualification order. Although the
parties have not addressed whether that order is final, we note
that a judgment determining liability for attorney's fees, but not
awarding a specified amount of fees, is interlocutory in nature.
See Echols v. Parker, 909 F.2d 795, 798 (5th Cir. 1990); Deloach v.
Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990); Hay v. City of
Irving, Tex., 893 F.2d 796, 800 (5th Cir. 1990). But here, the
City is appealing the disqualification of the City Attorney; it
apparently does not contest its paying reasonable attorney's fees
if there is a conflict of interest. In fact, it concedes that
Texas law provides a statutory basis for a municipality to employ
outside legal counsel to defend a lawsuit against an employee when
there is a conflict (or potential conflict) of interest between the
municipality and employee.
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district court noted in its order denying the reconsideration
motion, it did not order the City "to pay a certain fee to any
particular attorney, but has only ordered that the City will be
responsible for the necessary and reasonable fee". This was not an
abuse of discretion.
Finally, the City contends, in the alternative, that the
disqualification should apply only to the extent that Vines is sued
in his individual capacity, asserting that a suit against Vines in
his official capacity is a suit against the City, and that to
prohibit the City Attorney from representing Vines in that capacity
effectively denies the City its right to represent itself.
Responding to a similar contention in its order denying
reconsideration, the district court stated that "[t]he obligation
to pay the fees applies to the representation of Vines in both his
individual and official capacities". For obvious reasons, because
the court found a conflict of interest, we do not consider this
ancillary ruling an abuse of discretion.39
III.
For the foregoing reasons, the judgment and the ruling on
counsel for Vines are
AFFIRMED.
39
We note that, on appeal, and contrary to the concerns
expressed by the City, Vines adopted the City's brief on the
merits. He briefed only the separate counsel issue.
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Forsyth v. Barr
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-04-20
Citations: 19 F.3d 1527
Copy CitationsCombined Opinion