Zarnow v. City of Wichita Falls, Texas

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

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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

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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

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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

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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.

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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.

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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

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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.

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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

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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

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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

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Coughlin, and REVERSE the district court’s denial of qualified

immunity as to Officers Kendall, Dilbeck, and Keethler.

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