V-1 Oil Company, a Wyoming Corporation v. State of Wyoming, Department of Environmental Quality Steven P. Gerber

EBEL, Circuit Judge,

dissenting.

Although I agree with the majority opinion’s conclusion that the warrantless search was unconstitutional, I cannot agree with its analysis of the “extraordinary circumstances” basis for qualified immunity. Therefore, I respectfully dissent from the majority’s holding that Gerber was protected from suit by qualified immunity. I have four concerns with the majority opinion’s reliance on the extraordinary circumstances test in this case.

1. Attorney’s advice, without more, is insufficient as a matter of law to establish qualified immunity.

My first concern with the majority’s treatment of qualified immunity is that it advances nothing beyond receipt of an attorney’s advice to establish the extraordinary circumstances necessary to bestow qualified immunity. As the majority observed, few things in government are more common than the receipt of legal advice. If the Supreme Court intended legal advice, without more, to be sufficient, it surely would have said so in Harlow, or it would have used some words other than “extraordinary” circumstances.

Although the Supreme Court has not defined what it meant by extraordinary circumstances, the term itself suggests things such as (1) extreme urgency, (2) an extraordinarily important public interest which justifies precipitous action without careful exploration of the legal underpinnings, or (3) actions by the plaintiff which somehow mislead the defendant or invited the unconstitutional conduct of the defendant. These extraordinary circumstances share a common characteristic, which is not present in mere reliance on attorney’s advice, in that they are all somewhat beyond the control of the defendant and may be objectively measured. Reliance upon attorney’s advice is solely within the control of defendants and, if that is all that were required, is vulnerable to manipulation by defendants in order to broaden their qualified immunity far beyond the parameters anticipated by the Supreme Court.

This is not to say that attorney’s advice is an irrelevant consideration. I agree with the proposition, found in many of the cases cited by the majority, that attorney’s advice is one, but only one, factor to be considered. I would consider it in evaluating the second prong of the extraordinary circumstances test: i.e. whether the defen *1491 dant can prove that “he neither knew nor should have known of the relevant legal standard.” If he received erroneous, but good faith, legal advice that his conduct was permissible, that would tend to show that he neither knew nor should have known that he was violating the clear legal standards, provided that there existed extraordinary circumstances which enhanced the reasonableness of his reliance upon the erroneous legal advice.

Four of the cases cited in the majority opinion purport to discuss receipt of legal advice in the extraordinary circumstances framework. Watertown Equipment Co. v. Norwest Bank Watertown, 830 F.2d 1487 , 1495 (8th Cir.1987), appeal dismissed and cert. denied, 486 U.S. 1001 , 108 S.Ct. 1723 , 100 L.Ed.2d 188 (1988); Green v. Brantley, 719 F.Supp. 1570, 1583-84 (N.D.Georgia 1989), appeal dismissed, 895 F.2d 1387 (11th Cir.1990); Ortega v. City of Kansas City, Kan., 659 F.Supp. 1201, 1211 (D.Kan.1987), rev’d on other grounds, 875 F.2d 1497 (10th Cir.1989); and Burk v. Unified School District, 646 F.Supp. 1557, 1568 (D.Kan.1986). Cf. Moore v. Marketplace, 754 F.2d 1336, 1348 (7th Cir.1985) (receipt of advice from supervisor created extraordinary circumstances).

Watertown Equipment and Green expressly state that reliance on attorney advice is only one of several factors to be considered in examining qualified immunity. Similarly, in Ortega, the court, while not finding the defendants immune under the facts of that case, stated that “reliance on the advice of counsel in certain circumstances rises to the level of extraordinary circumstances.” Ortega, 659 F.Supp. at 1211 (emphasis added). That language suggests that the advice of counsel by itself does not create extraordinary circumstances but that extraordinary circumstances requires reliance on counsel plus something more. This appears consistent with the two part nature of the extraordinary circumstances test as articulated by Harlow. Only the court in Burk states unequivocally that legal advice constitutes extraordinary circumstances. However, in Burk , the law was found to be unclear and reliance on the extraordinary circumstances test merely provided an alternative ground for relief. Thus, at most, we are dealing with dicta in that case.

The other cases cited in the majority opinion that discuss reliance on legal advice are not cases involving the extraordinary circumstances defense. Rather, the majority of them merely refer to the attorney’s advice as evidence going to whether the law was unclear or not violated. See Arnsberg v. United States, 757 F.2d 971 (9th Cir.1985) (defendant did not violate clearly established law), cert. denied, 475 U.S. 1010 , 106 S.Ct. 1183 , 89 L.Ed.2d 300 (1086); Wells v. Dallas Independent School Dist., 576 F.Supp. 497, 508-09 (N.D.Tex.1983) (law unclear); Alexander v. Alexander, 573 F.Supp. 373, 376 (M.D.Tenn.1983) (Attorney advice was used by the court to show that defendant did not violate clearly established law. However, the court notes in footnote 4 that the facts could equally show that defendant neither knew nor should have known the law.), aff'd, 751 F.2d 384 (6th Cir.1984). Therefore, those cases address the basic Harlow test, which we have agreed was satisfied in this case.

2. The legal advice received here cannot constitute extraordinary circumstances.

Second, even assuming that receipt of attorney’s advice without more could occasionally rise to the level of extraordinary circumstances, I do not believe the facts of this case justify invocation of the extraordinary circumstances test. The majority opinion makes clear that the plaintiff has satisfied the first Harlow test by showing that the defendant has violated a clearly established constitutional right of which a reasonable person would have known. Notwithstanding that fact, the extraordinary circumstance proposed in the opinion that overrides this knowledge is nothing more than legal advice that the requested search was authorized by Wyoming statute. Neither the appellate briefs nor the record suggests that the defendant sought or received legal advice that the search would be constitutional under the Fourth Amendment of the United States Constitu *1492 tion. Thus, against the acknowledged backdrop that a reasonable person should have known that this search was unconstitutional, the defendant should at least be required to seek and obtain a specific opinion from counsel as to the constitutionality of the search before he can rebut the constructive knowledge of unconstitutionality that is imputed to him by virtue of the plaintiff’s satisfaction of the first Harlow test.

The qualified immunity cases cited in the majority opinion do not stand for the proposition that legal advice is a generic term and that one size fits all needs. In several of the cases cited there is nothing in the opinion to suggest that the attorney’s advice was not directed specifically to the constitutional question at issue. See, e.g., Arnsberg, 757 F.2d at 981 (whether execution of a warrant violated 4th Amendment); Alexander, 573 F.Supp. at 378 (whether revocation of commutation of sentence deprived plaintiff of liberty interest without due process).

The Ninth Circuit in Johnston v. Koppes, 850 F.2d 594 (9th Cir.1988), found that whether legal advice specifically addressed the constitutionality of the alleged action is one factor to consider in determining whether reliance on that advice gives rise to qualified immunity. See 850 F.2d at 596 . In Watertown Equipment, the Eighth Circuit found that reliance on legal advice did not establish qualified immunity, in part, because the advice “did not unequivocally assure [defendant] of the constitutionality of the [state statute].” Watertown Equipment, 830 F.2d at 1495.

The district court in Ortega similarly found that the defendants were not entitled to qualified immunity because the legal advice relied upon was not sufficiently tailored to the particular acts at issue. Ortega was a § 1983 suit based on the violation of a state extradition statute. In Ortega, the defendants failed to ask the attorneys the specific factual question of whether mailing notices to out-of-state suspects was proper.

In this case, Gerber failed to ask the specific legal question of whether the search was constitutional but rather he sought, and received, advice directed only to whether such a search was authorized under Wyoming law. Gerber was the Northwest District Supervisor for the Wyoming Department of Environmental Quality, Water Quality Division and his duties included investigating discharges of pollution into groundwater. As a district supervisor with a duty to conduct investigations, he reasonably should have known of the constitutional implications of a warrantless search and should have made sufficient inquiry to have known the clearly established legal test under Burger for administrative searches. The record does not establish that Gerber made the necessary inquiry.

3. The majority’s holding is contrary to the Tenth Circuit case of Melton v. City of Oklahoma City.

Third, I believe that the majority opinion is contrary to Tenth Circuit law. The Tenth Circuit authority contrary to the majority’s holding is Melton v. City of Oklahoma City, 879 F.2d 706, 730-31 (10th Cir.), reh’g en banc granted on other grounds, 888 F.2d 724 (10th Cir.1989). 1 In Melton , the court held that attorney’s advice cannot bestow immunity when conduct violates a clearly established right (such as we have found to exist in this case). The court explained:

[The defendant] argues that he relied in good faith on the advice of municipal counsel in sending his letter to [plaintiff], and, therefore, he should be absolved of any personal liability for the consequences of his actions. While superficially attractive, this argument proves too much. Adopting the proffered posi *1493 tion would immunize officials from liability via the simple expedient of consulting counsel. In Harlow, the Supreme Court sought to protect officials in the good faith exercise of discretion in areas of the law which are not clearly charted. However, where the law is clearly established, there is no justification for excusing individuals from liability for their actions. In sum, officials are presumed to know and abide by clearly established law. When their actions are otherwise, their claims of qualified immunity will fail.

Melton, 879 F.2d at 730-31 . I do not believe that Melton should be read so strictly that an individual can never be excused from liability if he acts contrary to clearly established law. See Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39. However, I do not believe that it can be read so broadly that it would permit finding Gerber immune from suit solely upon reliance on attorney advice.

4- The extraordinary circumstances defense was not raised below.

Fourth, I believe that it is inappropriate to affirm on the basis of extraordinary circumstances when that theory was not clearly advanced or argued on appeal or, apparently, below. We can affirm on a ground not raised below provided the record is sufficiently clear to permit us to do so and provided that both parties had an adequate opportunity to develop the record on the issue that we choose to rely upon. See Seibert v. University of Oklahoma, 867 F.2d 591, 597 (10th Cir.1989). Here, I do not believe that the appellant has had a full and fair opportunity to develop in the record the lack of extraordinary circumstances such as urgency or compelling state interest. I also do not believe that appellant has had an adequate opportunity to establish that the legal advice sought and given may have dealt only with the procedural compliance with Wyoming law rather than constitutional issues.

As stated in the majority's opinion, one of the factors in deciding whether counsel’s advice can be relied upon is how specific and unequivocal the advice is. Unless we know all of the circumstances of what the defendant sought from counsel and what the counsel advised, I fear we are deciding this case on an incomplete record and in a way that is unfair to the appellant since we are springing this defense upon it on appeal.

For the reasons stated above, I respectfully dissent from the majority opinion’s holding that Gerber was immune from suit.

. The other Tenth Circuit cases cited by the majority are inapplicable because none of them deal with a situation where a defendant is seeking to rely on attorney's advice for immunity when his conduct violates clearly established law. See Powell v. Mickulecky, 891 F.2d 1454 (10th Cir.1989); England v. Hendricks, 880 F.2d 281, 284 (10th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 1130 , 107 L.Ed.2d 1036 (1990), and Lavicky v. Burnett, 758 F.2d 468, 476 (10th Cir.1985), ce rt. denied, 474 U.S. 1101 , 106 S.Ct. 882 , 88 L.Ed.2d 917 (1986).