Opposition Brief — Davis v. Zirkelbach

Riteiemeal

Supreme Court, U.S.

et

Nc “-)

UEL 1 7 1998

No. 98-722

IN THE

i

Supreme Court of the United States ;.; .. -.

OctToBer TERM, 1998 bi

te

MICHAEL L. DAVIS,

Petitioner,

Va.

JOHN ZIRKELBACH; RICHARD WHITLOW; MARVIN GUEST,

SR., as Chief of Police for the City of Evansville, Indiana; THE

CITY OF EVANSVILLE, INDIANA, CHRISTIAN M. LENN;

JONATHAN J. PARKHURST; and STANLEY M. LEVCO, as

Prosecuting Attorney for Vanderburgh County, Indiana,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS JOHN

ZIRKELBACH, RICHARD WHITLOW, MARVIN GUEST, SR.,

AS CHIEF OF POLICE FOR THE CITY OF EVANSVILLE,

INDIANA AND CITY OF EVANSVILLE, INDIANA

DAVID L. JONES

Counsel of Record

JONES & WALLACE, LLP

Attorneys for Respondents John Zirkelbach,

Richard Whitlow, Marvin Guest, Sr., as

Chief of Police for the City of Evansville,

Indiana and City of Evansville, Indiana

Court Building, Suite 520

123 N. W. Fourth Street

Post Office Box 1065

Evansville, Indiana 47708

(812) 422-7878

150239 @) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

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QUESTIONS PRESENTED

Did the Circuit Court correctly hold that Petitioner’s claims

against the police officers and City are barred by the statute

of limitations under the Federal Wiretap Act, 18 U.S.C.

§ 2520(e)?

Did the Circuit Court correctly hold that the police officers

were protected by the “extraordinary circumstances”

exception to the lack of qualified immunity?

Did the Circuit Court correctly hold that Petitioner failed

to establish “deliberate indifference” exception to the

general rule against respondeat superior liability for

municipalities in 42 U.S.C. § 1983 actions?

il

TABLE OF CONTENTS

Page

Queshons Presented 352655 ve oe ee oe i

Sable of Comiente: o 5 150 eee il

Fable. of Cited Autores | 3: 7. cs <5 wae ook eee il

statement of Ge aes: a ey ea l

Reasons for Denying the Writ ...............+.0+- 5

I. The Seventh Circuit Court Of Appeals Correctly

Held That Davis’s Claims Are Barred By The

Accrual Of The Statute Of Limitations Under The

Federal Wiwemp Act: - 3465 cestnierwaseees 5

II. The Circuit Court Correctly Held That The Police

Officers Were Protected By The “Extraordinary

Circumstances” Exception To The Lack Of

Qualified imawniiy. 35 3550455 isis heeeees 7

Ill. The Circuit Court Correctly Held There Was No

Respondeat Superior Liability. ............. 10

Conciastae oo) icc vot sig ee eee 12

moe Pein FR SCE, eR nn re Wrenner,

AA A the nile he en Be

TT

TABLE OF CITED AUTHORITIES

Page

Cases:

Anderson v. Creighton, 483 U.S. 635 CREE wists Veda 8,9

Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998) ...... 7,8

Canton v. Harris, 489 U.S. 378 SOE 6 wired 6 och: 1]

Board of County Commissioners vy. Pa 520 U.S. 397

SUPE ho Pie Cavs RG did hous Che oie ee és 1]

Davis v. Scherer, 408 U.S. 183 (1984) ............. 7,8

Gomez v. Toledo, 446 U.S. 635 (1980) ............. 7

Halperin v. Kissinger, 1991 WL 120167 (D.D.C.) ... 8

Harlow v. Fitzgerald, 457 U.S. 800 4.7) eee as 7,9, 10, 12

Malley v. Briggs, 475 U.S. 535 (1986) ............. 8

Monell v. Department of Social Services, 436 U.S. 658

Soe) BEES ee i ore an rae 1]

V-1 Oil Co. v. Wyoming, 902 F.2d 482 (10 Cir. 1990)

MME aa 54 FEMA EOE ELA ors ROR kod Fives 4 hh 9

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) .. 8

iv

Cited Authorities

Page

Statutes:

BS Apa OS MONO oi onsen ee ee 6

5 SE as OD 85 ois 0 sc gS ods a Tey .

Se cae ee ee eo 1, 3,6, 7, 16, 11. 8

Other Authority:

Title III of the Omnibus Crime Control and State Streets

FRE OE SW aii vda 7 oo eek ee ee &

gE a

]

STATEMENT OF THE CASE

Prior to May 1990, neither Police Officer Richard Whitlow

(hereinafter “Officer Whitlow”) nor Police Officer John

Zirkelbach (hereinafter “Officer Zirkelbach”) had any

knowledge, relationship, or acquaintance with Michael May

(hereinafter “May”); Petitioner, Michael Davis (hereinafter

“Davis”); or Jeannette Duncan (hereinafter “Duncan”).

In the first week of May 1990, Evansville Patrol Officer

Steve Green advised Officer Whitlow (a narcotics officer with

the Evansville Police Department) that he had been approached

by a man named May, who believed one of his employees was

involved with narcotics, and that May wanted to speak to a

narcotics officer.

Officer Whitlow met with May and was told by May that

he owned a business called “Mike’s Used Cars.” May told

Officer Whitlow that he had been told by several people that

one of his employees, Davis, was a drug dealer. Some of the

things that he had observed involving Davis led him to suspect

that this information was true. May told Officer Whitlow that

he wiretapped his business telephone to make sure there wasn’t

illegal activity going on from his place of business. Other than

what May told him, Officer Whitlow had no other information

concerning the alleged wiretap, the audiotape recording of the

alleged wiretap, or the business relationship between May and

Davis. May did not give Officer Whitlow any specific

information about tapping his phone or making the audiotape.

May played the audiotape of the alleged wiretap phone

conversation between persons he identified as Davis and

Duncan for Officer Whitlow. May had taped the alleged

telephone conversation prior to contacting the Evansville Police

Department. After listening to the audiotape played by May,

Officer Whitlow asked May if he could have the audiotape,

2

and May told Officer Whitlow he wanted to keep it “to protect

himself”. Officer Whitlow then advised May that he would need

to check with his superiors about how to handle this situation.

Officer Whitlow had been previously involved with taped

telephone conversations where one of the two parties had

knowledge of the interception of the conversation, but had never

been involved in a situation where the Parties on the telephone

had no knowledge of the taping. Officer Whitlow realized from

the beginning that this was a new situation that he had not dealt

with before, and wanted to get legal advice before proceeding

further. He was not certain whether the Police Department could

-lawfully use the audiotape in any criminal investigation.

Officer Whitlow initially spoke with his fellow narcotics

officer, Officer Zirkelbach, about the situation. Officer Whitlow

then went to his immediate supervisor of the Narcotics Di vision,

Lt. Patti Dee Wazny (“Lt. Wazny”). Lt. Wazny advised Officer

Whitlow that she was not sure that the audiotape or any of the

information could be utilized by the Evansville Police

Department. Lt. Wazny was the ranking officer in the Narcotics

Division of the Evansville Police Department from June 1988

to February 1993. It was the policy and practice of the Narcotics

Division of the Evansville Police Department to follow federal

guidelines pertaining to the use of wiretaps. At no time did the

Evansville Police Department have any equipment for

wiretapping or wire interceptions. The only times that the

Evansville Police Department utilized wiretaps were in joint

investigations with either the Indiana State Police or the Federal

Drug Enforcement Administration. Lt. Wazny advised Officer

Whitlow that he should seek the legal opinion of the Prosecutors

assigned to the Drug Law Enforcement Program (“DLEP”) for

legal advice on the use of the audiotape and information

received from May. The DLEP was a special program in which

designated Deputy Prosecutors were assigned to work with the

a

3

Narcotics Division of the Evansville Police Department in the

investigation and prosecution of drug cases.

Officer Whitlow telephoned Deputy Prosecutor Christian

Lenn (“Deputy Prosecutor Lenn”), who was in the DLEP at his

office, and advised him of the circumstances of the audiotape

and what was on the audiotape, and sought his legal advice

concerning possible use of the audiotape. Deputy Prosecutor

Lenn told Officer Whitlow and Lt. Wazny that since the Police

Department had not initiated or been involved with the

telephone tap and had no prior knowledge of it, and that May

had done this on his own and had brought the information to

the Police Department, and that the Police Department was just

using information from another individual, he felt it could

lawfully be used by the police efficers. Deputy Prosecutor Lenn

then advised Lt. Wazny and Officer Whitlow that the applicable

law was such that a business Owner could intercept or record

conversation on his or her own business telephone. Deputy

Prosecutor Lenn told Officer Whitlow and Lt. Wazny that he

felt that the audiotape could be used to “flip” the female suspect,

Duncan, to become a police informant. But for the advice of

Deputy Prosecutor Lenn, Officers Zirkelbach and Whitlow

would not have undertaken any action to use the contents of

the audiotape against Davis. Officer Whitlow was uncertain as

to the legalities involved in the utilization of the audiotape,

and would not have acted but for the assurance from Deputy

Prosecutor Lenn that it was lawful te act with respect to the

said audiotape.

Officer Zirkelbach was advised by Officer Whitlow that

Deputy Prosecutor Lenn had given him legal advice that they

could proceed with the investigation of Davis based upon the

information received from the audiotape which Officer Whitlow

received from May. After receiving the legal opinion from

Deputy Prosecutor Lenn, Officer Whitlow returned to the bar

4

where May worked and asked May if he could have the

audiotape so that he could make a copy of it. Officer Whitlow

made a copy of the audiotape and took the original back to

May. Officer Whitlow gave a copy of the audiotape to Officer

Zirkelbach, after returning the original to May. Officer

Zirkelbach contacted Duncan and advised her that they

possessed an audiotape recording of a telephone conversation

between Davis and Duncan in which incriminating statements

were made. Duncan thereafter cooperated in effectuating an

arrest of Davis.

On May 11, 1990, Davis was arrested for violations of state

controlled substance statutes. After Davis was formally

arraigned and released on bond, Duncan appeared at Davis’s

place of business on May 21, 1990, and disclosed her reasons

for serving as a confidential informant. Duncan was crying,

and disclosed to Davis that she had not acted voluntarily.

Duncan then and there disclosed to Davis that an Evansville

police officer had appeared at her work place and claimed to

have an audiotape recording of a conversation between Duncan

and Davis. Duncan disclosed to Davis that the police officer

revealed that the audiotape recording was of a conversation in

which Duncan and Davis discussed possessing or otherwise

dealing five pounds of marijuana. Duncan also revealed that

the audiotape recording contained a conversation in which

Davis and Duncan discussed having sexual intercourse or a

“nooner”.

Davis acknowledged in deposition that he only had one

(1) conversation, in his life, with Duncan regarding five (5)

pounds of marijuana and any type of sexual relationship and

this conversation occurred over the telephone while Davis was

at his place of employment and Duncan was at her place of

employment.

Cia

5

On July 19, 1990, Davis registered complaints about Officer

Zirkelbach, Officer Whitlow, and other police officers to the

Evansville Police Department. Among the complaints made by

Davis to Lt. Wazny on July 19, 1990, was a specific complaint

about a telephone wiretap recording between Davis and Duncan

which was done by May.

On September 9, 1992, Davis filed his Complaint in the

United States District Court against the Respondents and others

seeking relief under the Federal Wiretap Act, and under

42 U.S.C. § 1983. Davis’s Complaint was filed more than two

(2) years after Duncan had disclosed to Davis the existence of

the audiotape recording of their only conversation regarding

drugs and sex.

REASONS FOR DENYING THE WRIT

I,

THE SEVENTH CIRCUIT COURT OF APPEALS

CORRECTLY HELD THAT DAVIS’S CLAIMS ARE

BARRED BY THE ACCRUAL OF THE STATUTE OF

LIMITATIONS UNDER THE FEDERAL WIRETAP ACT.

The Seventh Circuit’s opinion correctly held that Davis

filed his Federal Wiretap action beyond the two (2) year bar of

18 U.S.C. § 2520(e). (App. 7a-8a). More specifically, the

Seventh Circuit found that Davis had to bring his claim under

the Federal Wiretap Act within two (2) years of the time when

he had “a reasonable opportunity to discover the violation”.

18 U.S.C. § 2520(e). (App. 7a). Under Section 2520(e) of the

Federal Wiretap Act, Davis was not required to have actual

knowledge of a violation, only a “reasonable Opportunity to

discover.”

6

The Statement of the Case contained in the Petition for

Writ of Certiorari misstates certain key facts and omits other

facts which are crucial to the Seventh Circuit’s opinion. (Pet.

1). Davis specifically had reason to know that his t..lephone

conversation with Duncan had been intercepted and audiotape

recorded. Duncan appeared at Davis’s place of business on May

21, 1990 and disclosed to Davis why she had acted as a

confidential informant leading to his arrest on drug charges.

Duncan disclosed to Davis that Officer Zirkelbach had appeared

at her work place and claimed to have an audiotape recording

of the conversation between Duncan and Davis. Duncan told

Davis that Officer Zirkelbach revealed that the audiotape

recording was of a conversation in which Duncan and Davis

discussed possessing or otherwise dealing five (5) pounds of

marijuana, and also referred to a portion of conversation which

Davis and Duncan discussed having a “nooner” or sexual

intercourse. Davis testified in deposition that he only had one

(1) conversation in his life with Duncan regarding five (5)

pounds of marijuana and engaging in any type of sexual

relationship, and that single conversation occurred over the

telephone while Davis was at his place of employment and

Duncan was at her place of employment. Because Davis and

Duncan were in separate locations, this conversation could only

have been tape recorded from the telephone. Davis later

complained to Lt. Wazny of the Evansville Police Department

on July 19, 1990 about a telephone wiretap of the conversation

between himself and Duncan, which was done by May and

provided to narcotics officers.

Davis filed his Complaint in the United States District

Court against the Respondents and others seeking relief under

the Federal Wiretap Act, 18 U.S.C. § 2520 and 42 U.S.C.

§ 1983 on September 9, 1992. Davis’s Complaint was filed

more than two (2) years after Duncan had disclosed on May

21, 1990 to Davis the existence of the audiotape recording of

their only conversation regarding drugs and sex.

7

il.

THE CIRCUIT COURT CORRECTLY HELD THAT THE

POLICE OFFICERS WERE PROTECTED BY THE

“EXTRAORDINARY CIRCUMSTANCES” EXCEPTION

TO THE LACK OF QUALIFIED IMMUNITY.

The Seventh Circuit upheld the District Court’s finding

that, although Officer Zirkelbach’s and Officer Whitlow’s use

of the audiotape was a clear violation of established law, the

officers were protected by the “extraordinary circumstances”

exception to the lack of immunity that was first identified in

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). (App. 10a).

Davis places unfounded reliance on the erroneous decision

of the District of Columbia Circuit in Berry v. Funk, to the

effect that the qualified immunity doctrine applied to

constitutional torts and § 1983 actions has no application to a

Federal Wiretap claim. 146 F.3d !003, 1013 (D.C. Cir. 1998).

This Court has never adopted the reasoning in Berry v. Funk

that a qualified immunity defense is not applicable to a statutory

claim. To the contrary, the Court in Harlow v. Fitzgerald in

analyzing the scope of the defense from its prior decision in

Gomez v. Toledo, 446 U.S. 635, 640 (1990) observed that

Although Gomez presented the question in the

context of an action under 42 U.S.C. § 1983, the

Court’s analysis indicates that “immunity” must also

be pleaded as a defense and actions under the

constitution and laws of the United States.

457 U.S. 800, 815 at n.24. In Davis v. Scherer, the Court also

observed that:

For the reasons that we discuss, officials sued for

violations of rights conferred by a statute or

regulation, like officials sued for violation of

8

constitutional rights, do not forfeit their immunity

by violating some other statute or regulation. Rather,

these officials become liable for damages only to

the extent there is a clear violation of the statutory

rights that give rise to the cause of action for

damages.

408 U.S. 183, 194 at n.12 (1984). This Court has consistently

held that qualified immunity applies to claims for violation of

statutes, as well as constitutional rights without regard to the

existence of statutory defenses.

The only real conflict concerning qualified immunity lies

among decisions of the District of Columbia Circuit. The

opinion in Berry v. Funk conflicts with prior decisions in which

qualified immunity from liability for damages was granted

under Title II] of the Omnibus Crime Control and State Streets

Acts of 1968 for illegal wiretaps. See Halperin v. Kissinger,

1991 WL 120167 (D.D.C.) and Zweibon v. Mitchell, 516 F.2d

594 (D.C. Cir. 1975). Contrary to Davis’s assertion, the doctrine

of qualified immunity is not strictly a common law defense

limited to common law claims. As this Court observed in

Anderson v. Creighton:

Although it is true that we have observed that our

determinations as to the scope of official immunity

are made in the light of the “common law tradition”

(FNS) (Malley v. Briggs, 475 U.S. 335, 342 (1986)),

we have never suggested that the precise contours

of official immunity can and should be slavishly

derived from the often arcane rules of the common

law. That notion 1s plainly contradicted by Harlow,

where the Court completely reformulated qualified

immunity along principles not at all embodied in

the common law, replacing the inquiry into

subjective malice so frequently required at common

9

law with an objective inquiry in the legal

reasonableness of official action.

483 U.S. 635, 644 (1987).

The Seventh Circuit in this case upheld the District Court’s

finding that the “extraordinary circumstances” exception to the

lack of immunity that was firsi identified in Harlow, 457 U.S

at 819, applied to the facts of this case. Davis misconstrues the

Seventh Circuit’s opinion in referring to the “four factors”

mentioned in V-/ Oil Co. v. Wyoming, 902 F.2d 482 (10 Cir.

1990). “The opinion treats these four factors as the exclusive

factors for consideration in applying the exception in cases

involving reliance on legal advice.” (Pet. 11). However, as this

Court in Harlow explained:

if the official pleading the defense claims

extraordinary circumstances that can prove that he

neither knew nor should have known of the relevant

legal standard, the defense should be sustained. But

again, the defense would turn primarily on objective

factors.

457 U.S. at 819. Contrary to the assertion of Davis’s counsel,

the opinion of the Seventh Circuit neither refers to nor suggests

“exclusive factors,” but merely mentions “relevant factors,”

including

how unequivocal, and specifically tailored to the

particular facts giving rise to the controversy, the

legal advice was, whether complete information had

been provided to the advising attorney(s), the

prominence and competence of the attorney(s), and

how soon after the advice was received the disputed

action was taken.

10

(App. I la). The Seventh Circuit found that the relevant factors

enumerated supported the District Court’s decision to grant

qualified immunity to Officers Zirkelbach and Whitlow under

the facts of this case. (App. Ila). The factors supporting the

District Court’s decision to grant qualified immunity to Officers

Zirkelbach and Whitlow were applied to the following facts:

the officers went to Lenn, the Deputy Prosecutor specifically

responsible for giving advice to the narcotics division in the

police force; Lenn gave precise advice to them about the way

the audiotape recording could be used; the legal advice given

to them took into the account the circumstances of how the

audiotape recording had been made, who had been responsible

for the intercept, and how the police had received it: Lenn

imposed limits on the officers’ use of the audiotape, permitting

them to only use it to convince Duncan to cooperate, but not

directly use the audiotape; the officers followed the legal advice

strictly; they acted promptly after receiving the legal advice:

and they had no reason to believe that Lenn’s advice was

erroneous. (App. | la-12a). The factors enumerated and applied

to the situation involving Officers Zirkelbach and Whitlow

clearly fall within the extraordinary circumstances

contemplated in Harlow, 457 U.S. at 819.

Il.

THE CIRCUIT COURT CORRECTLY HELD THERE

WAS NO RESPONDEAT SUPERIOR LIABILITY.

Davis complains that the opinion of the Seventh Circuit

“briefly concludes with no significant discussion” regarding

his claim for respondeat superior liability under § 1983 against

Chief of Police Gann and the City of Evansville. (Pet. 15). The

Seventh Circuit noted in its opinion that “we can dispose quickly

of Davis’s claims against Chief of Police Gann.” (App. 9a).

The Circuit Court concluded that Davis made no showing that

1]

Chief of Police Gann had any knowledge about the particular

incident, and therefore could not show that Chief of Police Gann

intentionally violated Davis’s constitutional rights. (App. 9a).

With respect to the claims against the City of Evansville,

the Circuit Court found that Davis had failed to make any

allegation in the record which would suggest that the City of

Evansville had a policy or practice of unlawfully using

intercepted communication in violation of either the Federal

Wiretap Act or the Indiana Wiretap Act. (App. 13a). Under

this Court’s decisions in Monell v. Department of Social

Services, 436 U.S. 658 (1978) and Board of County

Commissioners v. Brown, 520 U.S. 397 (1997), the § 1983 claim

of Davis must fail.

Davis makes a desperate attempt to save the respondeat

superior claim by alleging that the ranking officer in narcotics,

Lt. Wazny, had prior knowledge of the use of the audiotape.

(Pet. 15). Davis fails to mention the fact that it was Lt. Wazny

who referred Officer Whitlow to Deputy Prosecutor Lenn to

determine whether the audiotape could be legally utilized. She

had no prior knowledge or experience concerning the legality

of the audiotape under the circumstances presented to her. These

circumstances do not constitute “deliberate indifference” which

would constitute a “policy” or “custom” for purposes of § 1983

liability. See Canton v. Harris, 489 U.S. 378, 388-90 (1989).

12

CONCLUSION

The Seventh Circuit Court of Appeals correctly held that

Davis’s claim against the police officers and the City of

Evansville under the Federal Wiretap Act was barred because

he failed to commence the action within two (2) years of the

time when he had “a reasonable opportunity to discover the

violation”. 18 U.S.C. § 2520(e). Davis’s § 1983 claim is

derivative of his wiretap act claim. The statute of limitations

applicable under Indiana law to § 1983 claims is also two (2)

years. Relevant factors analysis established that the police

officers were entitled to qualified immunity under the

“extraordinary circumstances” exception of Harlow y.

Fitzgerald. The Petitioner wholly failed to demonstrate any

basis for finding “deliberate indifference” on the part of the

Chief of Police or the City of Evansville, which would establish

a “policy” or “custom” for purposes of § 1983 liability.

This case does not merit further review, and the Petition

for Writ of Certiorari should be denied.

Respectfully submitted,

DAVID L. JONES

Counsel of Record

JONES & WALLACE, LLP

Attorneys for Respondents

John Zirkelbach, Richard Whitlow,

Marvin Guest, Sr., as Chief of Police

for the City of Evansville, Indiana

and City of Evansville, Indiana

Court Building, Suite 520

123 N. W. Fourth Street

Post Office Box 1065

Evansville, Indiana 47708

(812) 422-7878