Petition for Writ of Certiorari — Forsyth v. Vines

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Su- “°me Court, U.S.

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Im Th@FFICE OF THE CLERK

Supreme Court of the United States

October Term, 1994

JAN FORSYTH, RICHARD KIRKS,

CHARLES BRUTON, and SUSAN BRUTON,

Petitioners,

MACH VINES, DWIGHT WALKER,

WILLARD ROLLINS, and CITY OF DALLAS TEXAS,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Douctas R. LARSON

State Bar. No. 11958000

410 West Main, Suite 101

Mesquite, Texas 75149

(214) 329-0160

‘Attorney for Petitioners

Jan Forsyth and Richard Kirks

Epwarp B. CLouTtMaAN, III

State Bar No. 04411000

CLOUTMAN, ALBRIGHT & BOWER

3301 Elm Street

Dallas, Texas 75226-1637

(214) 939-9222

Attorney for Petitioners

Charles and Susan Bruton

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the knowing use and disclosure by law

aaa

enforcement officers of communications intercepted by

private citizens from an illegal wiretap violates the Fed-

eral Wiretapping Act, 18 U.S.C. §§ 2511(1)(c) and

2511(1)(d).

2. Whether §§ 2517(1) and (2) of Title 18 of the

Federal Wiretapping Act statutorily authorize law

i enforcement officers to knowingly use and disclose inter-

cepted communications obtained by private citizens from

an illegal wiretap.

LIST OF INTERESTED PARTIES

The four Petitioners herein, Plaintiffs/ Appellants

below, are Jan Forsyth, Richard Kirks, Charles Bruton,

and Susan Bruton.

The Four Respondents herein, Defendants/ Appellees

below, are Mack Vines, Dwight Walker, Willard

Rollins, and the City of Dallas, Texas.

lil

TABLE OF CONTENTS

Page

8) 1) @ OB 1. 5 S| 9 Ba i

LIST OF INTERESIED PARTIES ...............00-: ii

pe Bee nner ill

EE REDE IE 6 oS 6 cv eke ec ee ceceseusssecues iv

LG Er eee eee eT eR TREE 1

STATEMENT OF JURISDICTION................... 2

FEDERAL STATUTES INVOLVED.................. 2

PRR UIOUUEEE GE BORE CARE oc cece rec ces cess +

REASONS FOR GRANTING THE WRIT ...........

I. BY HOLDING THAT POLICE OFFICERS ARE

STATUTORILY AUTHORIZED TO USE AND

DISCLOSE INFORMATION GLEANED BY PRI-

VATE CITIZENS FROM AN ILLEGAL WIRE-

TAP, THE COURT OF APPEALS DECISION

CONFLICTS WITH THE PRECEDENTS OF

THIS COURT AS WELL AS WITH THE STAT-

GNI Se Sr ere ere Tee

Il. THE FIFTH CIRCUIT’S DECISION CREATES A

CONFLICT AMONG THE CIRCUITS REGARD-

ING THE INTERPRETATION OF THE FED-

RRs |) i as ee ree

Ill. PUBLIC POLICY DICTATES THAT THE WRIT

Ne oe ag a 6 GN 0.4.8 NN 44s WACR OwA OS

Ter TT eee ee TERE LL

TABLE OF CITATIONS

Page

CASES

Elkins v. United States, 364 U.S. 206 (1960)............ 7

Fultz v. Gilliam, 942 F.2d 396 (1991) ............... 8, 14

Gelbard v. United States, 408 U.S. 41 (1972) ......... 7, 8

Rogers v. Wood, 910 F.2d 444 (1990). .....----.---5- 7, 12

United States v. Giordano, 416 U.S. 505 (1974)......... 7

United States v. Jones, 542 F.2d 661 (1976).......... 8, 14

Untied States v. Vest, 813 F.2d 477 (1987) .......... : Pe

STATUTORY PROVISIONS

18 U.S.C. §§ 2511 (1) (c) and (d)............-.-6-- » 22

16 US.C. §§ 2517 (1) and (2) ..............3,3, 1,

6 UGA. BRED 6 as ninety cavinwasayeasseeed acres: 2

LEGISLATIVE History PROVISIONS

1968 U.S. Code Cong. & Admin. News 2112........ 15

TREATISES

James G. Carr, The Law of Electronic Surveillance,

Clifford S. Fishman, Wiretapping and Eavesdrop-

ping, § 25 (1978). ... 2... cece eee cece eee e eee e eee 15

a ee ae:

No.

In The

Supreme Court of the United States

October Term, 1994

JAN FORSYTH, RICHARD KIRKS,

CHARLES BRUTON, and SUSAN BRUTON,

Petitioners,

MACK VINES, DWIGHT WALKER,

WILLARD ROLLINS, and CITY OF DALLAS, TEXAS,

Respondents.

— >

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners hereby petition for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, la

-~ 45a) is reported at 19 F.3d 1527 (5th Cir. 1994). The

decision of the district court was not reported but is

reprinted herein (App. B, infra, 46a — 55a).

- 4

The judgment of the court of appeals was entered on

April 20, 1994. Petitioners did not seek a rehearing of the

decision. This court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATEMENT OF JURISDICTION

FEDERAL STATUTES INVOLVED

Sections 2511(1)(c) and 2511(1){d) of Title 18 of the

Federal Wiretapping Act provide:

§ 2511.

Interception and disclosure of wire,

oral, or electronic communications

prohibited

(1) Except as otherwise specifically

provided in this chapter any person

who -

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 elec-

tronic 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 infor-

mation was obtained through the

interception of a wire, oral, or elec-

tronic communication in violation of

this subsection:

Sections

Wiretapping

§ 2517.

shall be punished . . . or shall be sub-

ject to suit.

2517(1) and (2) of Title 18 of the Federal

Act provide:

Authorization for disclosure and use

of intercepted wire, © rol or electronic

communications

(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 communi-

cation, or evidence derived therefrom,

may disclose such contents to another

investigative or law enforcement offi-

cer to the extent that such disclosure is

appropriate to the proper performance

of the official duties of the officer mak-

ing 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 communi-

cation or evidence derived therefrom

may use such contents to the extent

such use is appropriate to the proper

performance of his official duties.

STATEMENT OF THE CASE

Petitioners Jan Forsyth and Richard Kirks were at all

times relevant herein, employed as police officers for

Respondent City of Dallas, Texas. In December, 1987, Forsyth

and Kirks began an investigation of numerous T.O.P. crimi-

nals in conjunction with the Drug Enforcement Administra-

tion and the Federal Bureau of Investigation.

Respondent Willard Rollins, Captain of the Intel-

ligence Division of the City of Dallas Police Department,

supervised the T.O.P. sting operation. To facilitate the

investigation, Forsyth and Kirks assumed false identities

and held themselves out to the drug underworld as

dealers of illegal narcotics. Forsyth and Kirks acted in

concert with Petitioners Charles and Susan Bruton, paid

government informants. The Dallas Police Department,

the Drug Enforcement Administration, and the Federal

Bureau of Investigation conducted much of their under-

cover operation at the Bruton home located at 3737 Mid-

diefield Ree# in Dallas, Texas.

In March, 1988, while the undercover operation was still

ongoing, John Barr,? a Dallas attorney, telephoned Forsyth at

her residence. Barr had served as a peace officer and as a

volunteer with the Dallas Police Department’s Narcotics

Division. In the course of his work with the Dallas Police

Department, Barr learned that Forsyth and Kirks were

1 T.O.P. stands for “Top Offender Program”. This federally

funded program targeted serious criminals for investigation.

2 John Barr, George Grogan, Homer Dulworth, Gary Dul-

worth, and Joyce Dulworth were originally named as Defen-

dants in this litigation but settled out of court with petitioners.

asec amcma maaan

working in an undercover capacity with Charles Bruton, and

obtained Forsyth’s urlisted home telephone number.

te na

Barr called Forsyth at her home to discuss an unre-

lated civil case involving informant Charles Bruton, and

Barr’s client, George Grogan. Grogan had hired Charles

Bruton to illegally dispose of numerous barrels of toxic

chemicals. Charles Bruton had reported the illegal dis-

posal to authorities and a local television station, causing

the Texas Water Commission to initiate an investigation

of Grogan. Barr sought Forsyth’s assistance in getting

| Charles Bruton to recant his allegations regarding

Grogan. Forsyth refused to get involved in the matter.

In June, 1988, Barr and Grogan contacted Homer Dul-

worth, Joyce Dulworth, and Gary Dulworth, the Brutons’

neighbors.3 Barr and Grogan asked the Dulworths to assist

them in either discrediting Charles Bruton, Jan Forsyth, and

Richard Kirks or finding a way to force Charles Bruton into

recanting his allegations of illegal disposal.

) The Dulworths held a grudge against Charles Bruton

because he had testified in a criminal trial against their

son, Gary Dulworth. Consequently, the Dulworths

assisted Barr and Grogan. Petitioners believe that the

Dulworths arranged to route the Bruton telephone line

into a previously dormant telephone line at the Dul-

worth’s home. The telephone lines were wired together

so that whenever the Brutons used their telephone, the

Dulworths could surreptitiously monitor the Petitioners’

conversations on a telephone extension in the Dulworth

home. Barr, Grogan, and the Dulworths monitored and

tape recorded the Petitioners’ telephone calls.

3 Grogan also owned property adjacent to the Bruton home.

crane

Barr decided to use the illegally intercepted and tape

recorded telephone conversations to punish Forsyth for

not cooperating with him in his effort to get Charles

Bruton to alter his expected testimony. On September 22,

1988, Barr went to the Internal Affairs Division of the

Dallas Police Department. He presented allegations to

Respondents Dwight Walker, Mack Vines, and Willard

Rollins, that Jan Forsyth had engaged in criminal and

administrative misconduct in her dealings with Charles

Bruton.

Respondents Walker, Vines, and Rollins knew that

Barr based his allegations on the telephone conversations

which the Dulworths had illegally intercepted. Respon-

dents failed, however, to instruct Barr, Grogan, or the

Dulworths to cease monitoring the Bruton telephone.

Instead, Respondents utilized the illegally intercepted

telephone conversations in an Internal Affairs investiga-

tion of Forsyth. Because Kirks was Forsyth’s partner, his

actions were called into question as well, even though a

formal charge against him was not made.

Against the advice of the Dallas Police Department's

Legal Liaison Division, Respondents Walker, \’ines, and

Rollins continued receiving intercepted communications

from the Bruton telephone. On September 23, 1988, in a

meeting with Rollins, Forsyth became suspicious that the

Brutons’ telephone line was “unsecured”. Rollins told

Forsyth not to discuss police business over the Bruton

telephone, and not to tell anyone, including the DEA, the

4 When Barr presented his allegations, Walker was the Cap-

tain in charge of the Internal Affairs Division, and Vines was the

Dallas Police Chief.

FBI or Charles Bruton, of Rollins’ order. For the next two

weeks, Forsyth and Kirks worked on the undercover

operation at 3737 Middlefield Road while their conversa-

tions were intercepted over the Bruton telephone. For

approximately ten days, Forsyth and Kirks’ “cover” was

blown and the two police officers were unknowingly

exposed to the drug underworld.

On October 4, 1988, an employee of Southwestern

Bell Telephone Company discovered and removed an ille-

gal telephone device that connected the Bruton and Dul-

worth telephone lines together. It was this device that

allowed the Dulworths to monitor the Bruton telephone.

REASONS FOR GRANTING THE WRIT

The decision of the Fifth Circuit renders ineffectual

the broad statutory prohibition on the use and disclosure

of information obtained from an illegal wiretap. 18 U.S.C.

§§ 2511(1)(c) and (d). It is inconsistent with the decisions

of this Court in Gelbard v. United States, 408 U.S. 41, and

United States v. Giordano, 416 U.S. 505, which narrowly

limit the permissible scope of unauthorized interceptions.

Moreover, the decision is inconsistent with this Court’s

decision in Elkins v. United States, 364 U.S. 206, because

the Fifth Circuit’s opinion constructively resurrects the

silver platter doctrine. Finally, the case is in direct conflict

with the Seventh Circuit’s decision in Rogers v. Wood, 910

F.2d 444 (1990), and conflicts in principle with the First

Circuit’s decision in United States v. Vest, 813 F.2d 477

(1987). The decision likewise conflicts in principle with

the Sixth Circuit’s decisions in Fultz v. Gilliam, 942 F.2d

396 (1991) and United States v. Jones, 542 F.2d 661 (1976).

I. BY HOLDING THAT POLICE OFFICERS ARE

STATUTORILY AUTHORIZED TO USE AND DIS-

CLOSE INFORMATION GLEANED BY PRIVATE

CITIZENS FROM AN ILLEGAL WIRETAP, THE

COURT OF APPEALS DECISION CONFLICTS

WITH THE PRECEDENTS OF THIS COURT AS

WELL AS WITH THE STATUTE ITSELF.

A. The Fifth Circuit’s Decision Fails To Accord

Sufficient Weight To T! » Underlying Purposes

Of The Federal Wiretapping Act.

The statutes at issue herein are found in Title III of

the Omnibus Crime Control and Safe Streets Act of 1968,

codified at 18 U.S.C. §§ 2510-2521 (1988). The Act is

commonly known as the Federal Wiretapping Act, and

the underlying purposes and prohibitions of the Act have

been delineated by this Court. “The purpose of the legis-

lation .. . was effectively to prohibit . . . all interceptions

of oral and wire communications, except those specified

in the Act... . ” United States v. Giordano, 416 U.S. 505,

514. “Except as expressly authorized in Title IIL, . . . all

interceptions of wire and oral communications are flatly

prohibited.” Gelbard v. United States, 408 U.S. 41, 46.

“Hence, although Title III authorizes invasions of privacy

under certain circumstances, the protection of privacy

was an overriding congressional concern.” Id.

The Fifth Circuit however went outside the scope of

the statutory language itself, and failed to rely on this

Court’s interpretation of that language. Not only was

a |

resorting to legislative history error, but the Fifth Cir-

cuit’s statutory interpretation strains to justify the excep-

tion upon which the opinion relies.

B. The Fifth Circuit Erred In Its Statutory Inter-

pretation of 18 U.S.C. § 2517.

The Fifth Circuit held that a police officer’s use and

disclosure of information gleaned by a private citizen

from an illegal wiretap is statutorily authorized under 18

U.S.C. §§ 2517(1) and (2).° The court's reasoning was that

the police did not participate in the installation of the

wiretap, that police officers have an official duty to inves-

tigate internal charges against fellow officers, and that

not permitting an exception in this circumstance pursuant

to §§ 2517(1) and (2) would work an absurdity on the

statute

Petitioners contend that this reading of §§ 2517(1)

and (2) is erroneous and misconstrues the plain language

of the statute. The plain wording of the statute at issue in

§§ 2517(1) and (2) merely allow police officers to use and

disclose information obtained from legal wiretaps. The

legislative history is clear and contrary to the Fifth Cir-

cuit’s interpretation.

First, the legislative history of Title III sets forth the

only three exceptions to the general prohibition of all

> See App. A at 42a.

a ee

wiretapping absent judicial authorization. None of the

exceptions listed permit private citizens to turn over ille-

gally intercepted conversations to police officers and then

permit the police to statutorily use such information.

Second, the legislative history states that § 2517 must be

6 See 1968 U.S. Code Cong. & Admin. News 2112, 2153-54,

which provides:

To assure the privacy of oral and wire communica-

tions, title III prohibits all wiretapping and electronic

surveillance by persons other than duly authorized

law enforcement officers engaged in the investigation

or prevention of specified types of serious crimes,

and only after authorization of a court order obtained

after a showing and finding of probable cause. The

only exceptions to the above prohibition are: (1) the

power of the President to obtain information by such

means as he may deem necessary to protect the

Nation from attack or hostile acts of foreign power, to

obtain intelligence information essential to the

Nation’s security, and to protect the internal security

of the United States from those who advocate its over-

throw by force or other unlawful means; (2)

employees of the Federal Communications Commis-

sion may, in the normal course of employment, inter-

cept and disclose wire communications in the

discharge of the monitoring responsibilities dis-

charged by the Commission in the enforcement of

chapter 5 of title 47 of the United States Code; and (3)

employees of a communication common carrier may

intercept and disclose wire communications in the

normal course of their employment while engaged in

any activity necessary to the rendition of service, or

protection of the rights of property of the carrier of

such communication.

—

read in light of § 2518.7 Section 2518 is that part of the

Federal Wiretapping Act which delineates how police

officers obtain judicially approved wiretaps.

C. The Fifth Circuit’s Decision Constructively Res-

urrects The Silver Platter Doctrine.

The decision of the Fifth Circuit allows police officers

to investigate the validity of criminal complaints made by

private citizens who obtain their information from a wire-

tap that violates 18 U.S.C. § 2511. Such a policy resurrects

the silver platter doctrine rejected by this court in Elkins

v. United States, 364 U.S. 206.

Under the “silver platter” doctrine, evidence of a federal

crime seized by state police in the course of an illegal search

while investigating a state crime could be turned over to

federal authorities and used in a federal prosecution so long

as federal agents had not participated in the illegal search

but had simply received the evidence on a “silver platter.”

This doctrine was soundly rejected by this Court in Elkins.

7 See 1968 U.S. Code Cong. & Admin. News at 2188:

Section 2517 of the new chapter authorizes the

use and disclosure of intercepted wire or oral commu-

nication in specified circumstances. Section 2517

must, of course, be read in light of Section 2518.

* + *

The proposed provision envisions close Federal,

State, and local cooperation in the administration of

justice. The utilization of an information-sharing sys-

tem within the law-enforcement community circum-

scribed by suitable safeguards for privacy is within

the intent of the proposed legislation.

The Fifth Circuit is clearly using the silver platter

doctrine in the decision below: although the police cannot

wiretap a private citizen to investigate criminal activity

absent judicial authorization, if a private citizen violates

the act, the Fifth Circuit permits the police to use and

disclose the contents of illegally intercepted conversa-

tions to investigate crime. In essence, the private citizen

is handing illegally intercepted conversations over to the

police for investigation on a silver platter. Such a policy

as that articulated by the Fifth Circuit clearly violates the

clear dictates of Elkins.

ll. THE FIFTH CIRCUIT’S DECISION CREATES A

CONFLICT AMONG THE CIRCUITS REGARDING

THE INTERPRETATION OF THE FEDERAL WIRE-

TAPPING ACT.

A. The Fifth Circuit’s Decision Conflicts With The

Seventh Circuit’s Decision In Rogers v. Wood.

In Rogers v. Wood, 910 F.2d 444 (1990), the Sixth

Circuit refused to recognize a common law privilege pro-

tecting statements made to police officers in furtherance

of investigating criminal activity as an exception to the

Federal Wiretapping Act. Id. at 447.°

8 The Seventh Circuit noted that

“[t]he very nature of the Act is to impose limita-

tions on the effectiveness of law enforcement agents

in the interests of protecting the privacy of citizens.

* * ao

“The Act represents Congress’s careful balancing

between the interests of the enforcement of criminal

laws and the assurance of privacy in oral and wire

bi seeeeeereneeeneneetememmmmmmateal

ee me co ee ce em eee

The Seventh Circuit’s reasoning directly conflicts

with that of the Fifth Circuit. The Fifth Circuit reasons

that not allowing the police to use illegally obtained

information to investigate potential criminal conduct

“flies in the face of common sense, and would require [a

reading of] § 2517(1) and (2) in a manner that compels an

absurd result.” App: A at 38a. Although the Seventh

Circuit did not specifically address § 2517(1) and (2), their

underlying reasoning still conflicts with that of the Fifth

Circuit.

B. The Fifth Circuit’s Decision Conflicts In Princi-

ple With The First Circuit’s Decision in United

States v. Vest.

Critical to the Fifth Circuit’s decision is that the

police officers who used and disclosed the illegally inter-

cepted communications had no involvement in physically

wiretapping the petitioners. Rather, the police were

approached and given information by private citizens.

This is important, reasons the Fifth Circuit, because it

gives the police clean hands insofar as the actual wiretap

itself. The First Circuit in United States v. Vest, 813 F.2d

477 (1987) rejected this reasoning. The First Circuit noted:

[a]n invasion of privacy is not over when an

interception occurs, but is compounded by dis-

closure in court or elsewhere. The impact of this

second invasion is not lessened by the circum-

stance that the disclosing party (here, the gov-

ernment) is merely the innocent recipient of a

communications. To recognize a common law privi-

lege ... would upset that balance”. Id. at 447.

communication illegally intercepted by the

guilty interceptor. .. . Id. at 481.

Importantly, and in contrast to the Fifth Circuit, the Vest

court noted that their job in construing the Wiretapping

Act was limited to interpretation rather than modifica-

tion. See id. The Fifth Circuit’s ruling modifies rather than

interprets the Federal Wiretapping Act.

C. The Fifth Circuit’s Decision Conflicts In Princi-

ple With The Sixth Circuit Decisions in Fultz v.

Gilliam and United States v. Jones.

The Sixth Circuit’s decisions in Fultz v. Gilliam, 942

F.2d 396 (1991) and United States v. Jones, 542 F.2d 661

(1976) both found the Wiretapping Act clear and unam-

biguous with respect to prohibiting the use and dis-

closure of all illegal wiretaps. Gilliam at 400-401; Jones at

666-67. Neither opinion finds the statutory language on

this issue either arbitrary or confusing. Id. The Fifth Cir-

cuit however, to reach its ultimate conclusion, found the

statute so ambiguous and unclear that resort to legislative

history and statutory construction was required. App. A

at 34a. Petitioners urge the Court to find that the deci-

sions in Gilliam and Jones are correct because the Wiretap-

ping Act is clear and unambiguous. Therefore, resort to

statutory construction by the Fifth Circuit was error.

Absent resorting to statutory interpretation, the Fifth Cir-

cuit’s decision cannot stand.

Ill. PUBLIC POLICY DICTATES THAT THE WRIT BE

GRANTED.

The Fifth Circuit’s decision opens the flood gates to

the possible unlimited use of information by the police

obtained by private citizens in violation of the Federal

Wiretapping Act. Such an open ended road flies in the

face of the dual purposes Congress had in mind when it

enacted Title III:

Title III has as its dual purpose (1) protect-

ing the privacy of wire and oral communica-

tions, and (2) delineating on a uniform basis the

circumstances and conditions under which the

interception of wire and oral communications

may be authorized. Sen. Rep. No. 1097, 90th

Cong. 2nd Sess., reprinted in 1968 U.S. CODE

CONG. & ADMIN. NEWS 2112, 2153.

Moreover, the two leading wiretap law commentators

are at odds over where the line should be drawn regard-

ing this important issue. Cf. James G. Carr, The Law of

Electronic Surveillance, § 7.4(b), at 7-47 (1993) (noting that

such use by the police violates the Act) with Clifford 5.

Fishman, Wiretapping and Eavesdropping, § 25 at 41 (1978)

(noting that police should be able to use such informa-

tion.) Petitioners urge that the Court should take up these

important questions to determine the scope of permiss-

ible police conduct regarding the use and disclosure of

information obtained from illegal wiretaps.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Douctas R. LARSON

State Bar No. 11958000

410 West Main, Suite 101

Mesquite, Texas 75149

(214) 329-0160

Attorney for Petitioners

Jan Forsyth and Richard Kirks

Epwarp B. CLoutTMan, III

State Bar No. 04411000

CLOUTMAN, ALBRIGHT & BOWER

3301 Elm Street

Dallas, Texas 75226-1637

(214) 939-9222

Attorney for Petitioners

Charles and Susan Bruton

APPENDIX A

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.

Appeal from the United States District Court

for the Northern District of Texas

(Filed April 20, 1994)

Before WISDOM, BARKSDALE, and EMILIO M. GARZA,

Circuit Judges. BARKSDALE, Circuit Judge:

At issue is a summary judgment awarded the appel-

lees (City of Dailas 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 con-

veyed 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 inter-

cepted 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.

Dallas police officers Forsyth and Kirks, two of the

four appellants, were assigned to the Intelligence Divi-

sion. In December 1987, under the supervision of appel-

lee 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,! about an unrelated civil case

involving appellant Charles Bruton (the informant) and

Barr’s client, George Grogan.? The appellants alleged in

their complaint that Grogan had hired Bruton to illegaly

dispose of toxic chemicals; that he had reported the ille-

gal disposal, causing state environmental authorities to

initiate an investigation of Grogan; that Barr sought For-

syth’s assistance in having Bruton recant his illegal dis-

posal charges; and that Forsyth refused to become

involved.

1 Barr, who described himself as a “cop groupie”, occa-

sionally 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.

The appellants further alleged in their complaint

that, in June 1988, Barr and Grogan contacted the Dul-

worths, neighbors of both Grogan and the Brutons,* 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 Dul-

worths could listen to the Brutons’ telephone conversa-

tions; 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 admin-

istrative misconduct during the undercover investiga-

tion.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

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 inter-

cepted conversations to punish Forsyth and Kirks for not coop-

erating with him regarding Charles Bruton and Grogan’s toxic

waste disposal.

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.

At the meeting, Barr made very serious charges

against Forsyth and the Brutons.* 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

5 On September 22, Barr submitted an affidavit summariz-

ing 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 For-

syth 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 burglar-

ize 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.

obtained by Barr, his law partner, and Grogan from

sources other than the intercepted conversations. Walker

assumed that information about a personal trip by For-

syth 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.

Walker decided to conduct a preliminary internal

affairs investigation of the charges. Such investigations

are conducted to ensure the integrity of the police depart-

ment. 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 Sep-

tember 22 or 23, Rollins informed Lieutenant Lybrand

‘one of Forsyth and Kirks’ supervisors) about the

charges. Lybrand advised Rollins that the police depart-

ment should investigate whether a wiretap was in place;

Rollins responded that any investigation should be per-

formed by the FBI.

With Lybrand present, Rollins met on September 23

with Kirks and Forsyth, informed Forsyth that a com-

plaint 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 conversa-

tions on the line after September 23.° Rollins assumed

that business was the extent of the relationship between

the Brutons and Kirks and Forsyth,” and did not antici-

pate 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 investiga-

tion.

On September 26, Walker gave his notes from the

September 22 meeting to Detective Jennings of the Inter-

nal Affairs Division, and described that meeting and the

charges against Forsyth. In conducting the preliminary

investigation, the appellees used the information received

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

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 tor 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 professio-

nal”.

on September 22 from Grogan, Barr, and his partner,

including the information obtained from intercepted con-

versations and that obtained from other sources.

Jennings interviewed Barr on October 3, regarding

the condition of the Dulworths’ telephone and the

charges. 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 Dul-

worths’ 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.? 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 For-

syth being classified as “unfounded”.

Forsyth and Kirks filed suit against Barr, Grogan, the

Dulworths, the City, Vines, Rollins, and Walker in Febru-

ary 1989. They alleged that the Dulworths “entered into

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 conver-

sations. Forsyth stated by affidavit that, on September 25, 1988,

Woods told Bruton about the eavesdropping.

an illegal agreement with BARR and GROGAN to ille-

gally intercept and/or record and/or illegally use infor-

mation from telephone conversations” between 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.!9

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 set-

tled their claims against Barr, Grogan, and the Dulworths;

those claims were dismissed in November 1992.

I].

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 inter-

ception 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.

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.

10a

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, 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. “Sum-

mary 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).

is y

lla

As the basis for civil recovery, the appellants claimed

violations of Title III] of the Omnibus Crime Control and

Safe 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 intercep-

tion, disclosure, and use of wire communications.!! (The

Act frequently makes reference to “this chapter”; for pur-

poses 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 appel-

lees had intercepted the conversations; and (2) the appel-

lees 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,

il Section 2520, which authorizes civil recovery for viola-

tions of the Act, states in pertinent part:

{A]ny person whose wire, oral, or electronic commu-

nication 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).

i2 The district court did not base its ruling on the individ-

ual 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.

12a

“(The Act] has as its dual purpose (1) protecting the

privacy of wire and oral communications, and (2) delin-

eating on a uniform basis the circumstances and condi-

tions under which the interception 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 spec-

ified serious crimes and receive prior judicial

approval, an approval that may not be given

except upon compliance with stringent condi-

tions. . . . 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 pro-

vides 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 pro-

tection of privacy was an overriding congressional con-

cern”. 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).

13a

Except as authorized, the Act prohibits the inten-

tional interception of wire communications.'> “A tele-

ohone conversation is a wire communication.” Briggs v.

American Air Filer Co., Inc., 630 F.2d 414, 417 (5th Cir.

1980).!4 “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).1° An “intercep-

tion” “require[s] participation by the one charged with an

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 other person to inter-

cept 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 pri-

vacy”. 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 sus-

picious 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

l4a

‘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 appel-

lees did not install any device or listen to any conversa-

tions; 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,

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.

Similarly, in United States v. Campagnuolo, 592 F.2d 852 (Sth

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 chal-

lenged activity: “Even if we assume that these actions constitu-

ted 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 conver-

sations without proving the contents of specific conversations

allegedly intercepted”. Walker v. Darby, 911 F.2d 1573, 1578 (11th

Cir. 1990).

l5a

Grogan, and appellee Walker, the appellees had any

knowledge that the Dulworths were able to do so. Nev-

ertheless, the appellants assert that the appellees are lia-

ble 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 inves-

tigated. 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 Dul-

worth’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 appel-

lants’ interception claims, including Forsyth’s, Kirks’, and

Susan Bruton’s deposition testimony, which reflects only

conclusory, unsubstantiated claims that the appellees

l6a

arranged to receive additional information after the Sep-

tember 22 meeting,!7 and Kirks’ and Forsyth’s interroga-

tory answers. When asked what actions by Vines, Rollins,

17 Forsyth testified:

Q: Do you have any knowledge, either first-

hand or hearsay knowledge, that the police depart-

ment 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?

A: By leaving the telephone tap in place, which

allowed the Dulf[ Jworths to continue to monitor con-

versations 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 tele-

phone, 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 Dull

}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. Ithink 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

17a

and Walker violated the Act, they responded that each

“illegally used information obtained from an illegal tele-

phone interception”; illegal interception by the appellecs

was not claimed. (Emphasis added.) Another interroga-

tory asked the appellants to state the factual basis for

their assertion that Walker, Rollins, and Vines prear-

ranged to receive illegally intercepted information. In

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[ Ji

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.

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 sup-

posed 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.

18a

essence, they responded that the appellees, after being

made aware on September 22 of the interception, contin-

ued to receive information from intercepted conversa-

tions, and failed to take steps to have the tap removed

until! October 4.'*

18 Forsyth and Kirks responded to the interrogatory as fol-

lows:

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 con-

versatiors to be illegally intercepted by a known tar-

get 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 ille-

gally 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 aforemen-

tioned 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. Jen-

nings and John James indicated that these defendants

had knowledge and did nothing to correct the situation.

19a

With their response to the summary judgment

motion, the appellants filed two volumes of evidentiary

material, tabbed “A” through “VV”, but referred speci-

fically 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’ inter-

rogatory answers regarding the basis for their good faith

defenses. These specific references were cited in opposi-

tion 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,’ desig-

nate ‘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 pre-

senting evidence sufficient to demonstrate the existence

of a material fact issue on whether the appellees inten-

tionally intercepted their conversations. See, e.g., Anderson

v. Liberty Lobby, Inc., 477 U.S. at 257. To satisfy this bur-

den, they were required to identify specific evidence in

the record, and to articulate the “precise manner” in

20a

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 mate-

rials . . . demonstrate circumstantial evidence of a con-

spiracy and/or joint action on the part of Vines, Walker,

Rollins, and the City”; that “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 accom-

plish and cause an{] illegal wiretap to remain in place and

thereafter use information obtained from an illegal wire-

tap 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 appel-

lants’ 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 opposi-

tion 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 Dul-

worths. But, contrary to Fed. R. App. P. 28(a)(5), they

furnished no record cites to such evidence. In their reply

2la

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. 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).

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 intercep-

tion claim. That evidence, viewed in the light most favor-

able 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 tele-

phone 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. Nev-

ertheless, as described above, they submitted consider-

able 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.

22a

In light of the appellants’ scant proof, a reasonable

jury could not return a verdict for them (non-movants) on

the claim that 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.!9 Accordingly, summary judgment on

the interception claim is proper.

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).29 Liability for disclosure or use

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 chal-

lenged 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 -—

close, to any other person the contents of any wire,

oral, or electronic communication, knowing or hav-

ing reason to know that the information was

obtained through the interception of a wire, oral, or

electronic communication in violation of this subsec-

tion; or

(d) intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic communica-

tion, knowing or having reason to know that the

23a

requires proof that it was intentional, that the information

was obtained from an intercepted communication, and that

the defendant knew or should have known that the intercep-

tion was illegal.?! Accordingly, “knowledge or reason to

information was obtained through the interception

of a wire, oral, or electronic communication in viola-

tion 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

24a

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 ille-

gally, it is undisputed that, in connection with conducting

the preliminary internal affairs investigation, and without

investigating the legality of the interception, the appel-

lees (1) disclosed the contents of intercepted communica-

tions to other law enforcement officers; and (2) used

those contents — to the extent that the charges against

Forsyth were based on the communications.?2 We assume

an illegal interception.” 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 wrongdo-

ing by the officers, appears to be an issue of first impres-

sion.

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.

Thompson v. Dulaney, 970 F.2d at 749 (emphasis in original;

citations omitted).

22 It is not clear from the record whether some, OF all, of the

contents were disclosed and used. Because we view the evi-

dence 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.

lll

25a

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 con-

sented to by the appellants, each of whom used the

Brutons’ telephone with awareness that it was not 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 over-

heard 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.74

24 As discussed infra, whether the Act proscribes the dis-

closure 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 immu-

nity, 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.

26a

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 United States, a State,

or a political subdivision thereof if the dis-

closure of that information would be in viola-

tion of this chapter.

18 U.S.C. § 2515.75

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 pre-

sumably 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 fash-

ion. 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 viola-

tion of the chapter, not evidence the disclosure of

which was or would be in violation of the chapter.

Fleming ?. United States, 547 F.2d 872, 874 (Sth Cir.), cert. denied,

434 U.S. 831 (1977).

ls /

27a

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 of court and administrative proceedings’ ”. Gel-

bard, 408 U.S. at 51 (footnote omitted).

Section 2515 is not applicable. The intercepted infor-

mation was used only in the sense that it was investi-

gated 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 pro-

ceeding, 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, prelimi-

nary, 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 Com-

mander”. The investigation was conducted through tele-

phone and personal interviews and written reports; there

was no hearing or other proceeding in which evidence

was introduced.

28a

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 ‘hear-

ing,’ 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. 0. Cheney, 914 F.2d

1501, 1504 (D.C. Cir. 1990). The title of § 2515 - “Prohibi-

tion of use as evidence of intercepted wire or oral commu-

nications” (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 reason-

ing 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 stated:

As a practical matter, ... an ex parte administra-

tive 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 oppor-

tunity 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,

29a

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 under

§ 2518. Id. at 1506.27 Similarly, if the internal affairs inves-

tigation 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 informa-

tion derived from the wiretap.

and until the agency actually makes an adverse deci-

sion based upon the wiretap information, an unneces-

sary 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.

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 deci-

sion is challenged in a subsequent judicial proceed-

ing, 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 wire-

tap 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.

30a

Moreover, even in the context of an adversarial pro-

ceeding 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 Vv. Echavarria-Olarte, 904

F.2d 1391 (9th Cir. 1990); United States v. Vest, 813 F.2d

477, 484 (1st Cir. 1987) (recognizing impeachment excep-

tion, but declining “to read into [§] 2515 an exception

permitting the use of illegally-intercepted communica-

tions in perjury prosecutions); Anthony v. United States,

667 F.2d 870 (10th Cir. 1981), cert. denied, 457 U.S. 1133

(1982).7°

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 sup-

press the contents of any unlawfully intercepted commu-

nication). 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

28 The impeachment exception has not been extended to

civil cases. Williams v. Poulos, 11 F.3d 271, 288 (ist 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

(Sth 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”).

3la

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 violations of §§ 2511(1) (c) (disclosure)

and (d) (use).22 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).

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.

32a

Subsections 2511(1) (c) and (d) are qualified by the

introductory phrase, “Except as otherwise specifically pro-

vided 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 investi-

gation, the appellees, disclosure (to other law enforcement

officers) and use of the intercepted information were autho-

rized by § 2517(1) and (2). Those subsections provide that a

“Jaw enforcement officer who, by any means authorized by

this chapter [the Act], has obtained knowledge of the con-

tents of” intercepted communications, may disclose or use

those contents as “appropriate to the proper performance of

[his] official duties” .*°

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 per-

formance 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).

33a

These subsections provide “for limited non-public

disclosure. Disclosure by one law enforcement officer to

another, and use of a communication by a law enforce-

ment officer in the performance of his duty, are autho-

rized 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 statu-

tory 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 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 offi-

cers” within the meaning of §§ 2517(1) and (2) and

2510(7).3!1 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

31 The Act defines “investigative or law enforcement offi-

cer” as:

any officer of the United States or of a State or politi-

cal 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.

34a

otherwise.22 Rather, the dispute centers solely on whether

the officers obtained the information by a “means autho-

rized 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 (2) limits disclosure and use

to only information obtained through a judicially autho-

rized wiretap.”

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, suchas 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 US.C. § 2511(2) (¢) and (d). But, the Act does not

address expressly someone unlawfully intercepting 4

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 statu-

tory construction. In so doing, we are aware from our

32 The Dallas Police Department General Orders for 1983

require the Internal Affairs Division to “{eJnsure 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 Of course, the Act provides that information intercepted

in specified other ways does not run afoul of its general pro-

scription against interceptions. See, €.g., § 2511(2)(c) and (d).

35a

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 (Sth

Cir.), cert. denied, 419 U.S. 897 (1974). As hereinafter

reflected, construction of § 2517(1) and (2) is no excep-

tion; we balance on a 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 autho-

rized by this chapter, [have] obtained knowledge” of

communications, and provide that they may disclose or

use such contents as “appropriate to the proper perfor-

mance 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 con-

veyed 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:

36a

Any person who has received, by any means

authorized by this chapter, any information con-

cerning a wire, oral, or electronic communica-

tion, or evidence derived therefrom intercepted

in accordance with the provisions of this chapter

may disclose the contents of that communica-

tion or such derivative evidence while giving

testimony under oath or affirmation in any pro-

ceeding held under the authority of the United

States or of any State or political subdivision

thereof.

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 provi-

sions of this chapter”. In other words, anyone who law-

fully 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 pro-

ceedings. And, obviously, had Congress wanted to like-

wise 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 pre-

cludes one part being read so as to render another super-

fluous. E.g., United States v. Chen,. 913 F.2d 183, 190 (Sth

Cir. 1990) (quoting Duke v. University of Texas, 663 F.2d

Oe a

37a

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:

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 elec-

tronic communications relating to offenses other

than those specified in the order of authoriza-

tion or approval, the contents thereof, and evi-

dence 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 subsec-

tion (3) of this section when authorized or

approved by a judge of competent jurisdiction

where such judge finds on subsequent applica-

tion 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 bound-

aries 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

38a

or public purpose (testimony in the type proceeding spec-

ified 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 infor-

mation for the latter.

It can be argued that the exception permitted under

§ 2517(5) (for § 2517(1) and (2) disclosure and use of

‘nformation 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 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 wire-

tap or by consent under certain circumstances. This

would mean that officers receiving information about

police misconduct, obtained through an illegal intercep-

tion 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 Dept of Justice, 491 U.S. 440,

39a

454 (1989) (brackets, internal quotation marks, and cita-

tion 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 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 Con-

gress, 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 his-

tory 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 cer-

tain limited situations disclosure and use of ille-

gally intercepted communications would be

40a

appropriate to the proper performance of the offi-

cers’ duties. For example, such use and dis-

closure 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 (D.C.

Cir. 1974), cert. denied, 420 U.S. 911 (1975).34 No more

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 enforce-

sent officer to the extent that such disclosure is appro-

priate” in the performance of their official duties.

Subsection 2 authorizes investigative or law enforcement

personnel who have lawfully obtained knowledge of any inter-

cepted 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 inter-

cepted information was inadmissible as evidence, even though

the government played no role in the interception.

4la

need be said; the facts at hand present one of the “limited

situations” forecast by the legislative history for allowing

use of illegally intercepted information.* 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”).

{A]n invasion of privacy is not over when an intercep-

tion 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 gov-

ernment sought to introduce in evidence a conversation

recorded by a third party without the defendant’s knowledge.

I court “decline{d] to read into section 2515 an exception

ermitting the introduction in evidence of an illegally-inter-

oted communication by an innocent recipient thereof”. 813

# 2d at 481.

> But see James G. Carr, The Law of Electronic Surveillance,

5 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

atta, |

42a

We hold that, under the unique facts and circum-

stances 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 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 under-

mining the salutary purpose of the Act, or as providing a

means of sidestepping it.

The City’s appeal had its genesis when, approx-

imately two years after this action was filed, Vines, who

had been terminated as Chief of Police, moved to disqual-

ify the City Attorney as his counsel, and requested the

——

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 con-

tents to the police department’: sternal affairs division and

others, the officers sued the lawyer, and were awarded dam-

ages. The Seventh Circuit rejected a claim to a common law

privilege for statements to police officers in the course of inves-

tigation of criminal activity. (Needless to say, § 2517 was not in

issue; the suit was not against the police.)

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.

43a

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 unre-

lated 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 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.**

See In re Dresser Industries, Inc., 972 F.2d 540, 542 n.4 (5th

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

44a

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 disqualifica-

tion 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 district court noted in its order denying the recon-

sideration 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

final, we note that a judgment determining liability for attor-

ney’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 (Sth 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 inter-

est between the municipality and employee.

45a

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 dis-

trict court stated that “[t]he obligation to pay the fees

applies to the representation of Vines in both his individ-

ual 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.*”

IIl.

For the foregoing reasons, the judgment and the rul-

ing 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.

46a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAN FORSYTH, et al.,

Plaintiffs, CA 3-89-0447-T

JOHN BARR, et al.,

Defendants.

ORDER GRANTING DEFENDANTS CITY OF

DALLAS, MACK VINES, DWIGHT WALKER

AND WILLARD ROLLINS’ MOTION

FOR SUMMARY JUDGMENT

(Filed Nov. 18, 1991)

This matter is before the court on the April 1, 1991,

Motion for Summary Judgment filed by Defendants City

of Dallas, Mack Vines, Dwight Walker and Willard

Rollins. Plaintiffs filed a response on May 21st.

This action arises out of an alleged illegal wiretap

placed on the telephone of Plaintiffs Charles and Susan

Bruton during a period in which they acted as confiden-

tial informants for the Dallas Police Department, speci-

fically for Officers Jan Forsyth and Richard Kirks.

Plaintiffs allege that the actions of Defendants violated 18

U.S.C. § 2510, et seq. by the interception, disclosure and

the intentional use of wire, oral or electronic communica-

tions. Plaintiffs also allege common and state law claims

for invasion of privacy.

47a

Before and during the time of the alleged wire:ap-

ping, Defendant George Grogan employed Co-Defendant

John Holman Barr to represent him in connection with

charges directed against Grogan by Charles Bruton and

the government on the illegal disposal of toxic wastes. In

their complaint, Plaintiffs assert that Barr, in the course of

his activity with the Dallas Police Department, learned

that Plaintiffs Forsyth and Kirks were working in an

undercover capacity with Bruton. Later, Barr contacted

Forsyth and requested, unsuccessfully, that she encour-

age Bruton to recant his allegations with respect to the

toxic waste charges leveled against Grogan.

Plaintiffs assert that Grogan and Barr sought the aid

of Co-Defendants Homer Dulworth, Joyce Dulworth and

Gary Dulworth! to discredit Bruton, and then arranged to

have the telephone lines to the Dulworths’ home and to

the Brutons’ home wired in such a way that when the

telephone in the Brutons’ home was used, a previously

disconnected telephone at the Dulworths’ home could be

used to listen and record the conversations on the

Brutons’ telephone. The Dulworths listened to several of

the Brutons’ telephone conversations, including conver-

sations with Forsyth and Kirks, and apparently passed

the information gained from the calls to Grogan who then

informed Barr. Plaintiffs allege that later, on September

22, 1988, Barr and Grogan used information obtained

1 The Dulworths and Brutons live at 4141 Middlefield Road

and 3737 Middlefield Road, Dallas, Texas, respectively. Grogan

owns a house located at 3729 Middlefield Road. The Bruton

property is adjacent to the Grogan property and across the street

from the Dulworth property.

48a

from the illegal interception to place unfounded and fab-

ricated charges against Forsyth and Kirks with the Dallas

Police Department Internal Affairs Division. Barr filed an

affidavit with the Dallas Police Department asserting that

he believed Forsyth engaged in conduct which violates

state statues [sic] and violates the Code of Conduct of the

Dallas Police Department.

In their complaint, Plaintiffs assert that Defendants

Mack Vines, Chief of Police for the City of Dallas, Dwight

Walker, Captain in charge of the Internal Affairs Division

of the Dallas Police Department, and Willard Rollins,

Captain in charge of the Intelligence Division, received

information from Defendants Barr and Grogan on behalf

of the City of Dallas which included knowledge that the

source of the information was partially from the illegal

interception of the telephone conversations between

Plaintiffs. Plaintiffs contend that these Defendants acted

outside the law when they failed to instruct Barr and

Grogan to cease the interception of telephone conversa-

tions on the Brutons’ telephone, and when they continued

to receive the intercepted information. As a result of the

information received, an internal affairs investigation was

conducted.

Defendants move the court to grant summary judg-

ment in their favor with respect to Plaintiffs’ claims.

Defendants contend that their actions do not constitute a

violation of the wiretap statute, and that Plaintiffs have

failed to state a claim upon which relief can be granted in

2 The court notes that these Defendants occupied these

positions during the relevant time periods.

49a

light of their defense of qualified immunity and munici-

pal liability, and that Plaintiffs’ supplemental state claims

should be dismissed.

Summary Judgment Standard

This action is before the Court on a motion for sum-

mary judgment. Pursuant to Fed. R. Civ. P. 56(c), sum-

mary judgment is appropriate only if there is no genuine

issue as to any material fact and the moving party is

entitled to a judgment as a matter of law. Anderson v.

Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed.2d 202

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.

2548, 91 L. Ed.2d 265 (1986). The burden of showing

entitlement to summary judgment falls squarely and with

great weight upon the moving party. Pitts v. Shell Oil

Company, 463 F.2d 331 (5th Cir. 1972). For summary judg-

ment to enter, the pleadings, depositions, admissions, and

affidavits, must be considered in the light most favorable

to the nonmoving party. Galindo v. Precision American

Corp., 754 F.2d 1212 (5th Cir.), reh’g denied, 762 F.2d 1004

(1985).

Discussion

The Federal Wiretap Act, 18 U.S.C. § 2510 ef seq.,

provides for civil damages against those who violate its

provisions. Section 2520 provides 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

50a

entity which engaged in that violation such

relief as may be appropriate.

To recover under § 2520, Plaintiffs must show that

Defendants violated § 2511 which prohibits the intercep-

tion, disclosure or use of any wire, oral or electronic

communication. A person violates § 2511 if he -

(a) intentionally intercepts, endeavors to inter-

cept, or procures any other person to intercept

or endeavor to intercept, any wire, oral, or elec-

tronic communication;

(b) intentionally uses, endeavors to use, OF

procures any other person to use any electronic,

mechanical, or other device to intercept any oral

communication ... . ;

close, to any other person the contents of any

wire, oral, or electronics communication, know-

ing or having reason to know that the informa-

tion was obtained through the interception of a

wire, oral, or electronic communication in viola-

tion of this subsection; or

(d) intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic commu-

nication, knowing or having reason to know

that the information was obtained through the

interception of a wire, oral, or electronic com-

munication in violation of this subsection. .

Plaintiffs allege that “Defendants and including the

City of Dallas, Texas, acting through its Police Chief,

Assistant Chief and a Police Captain, acted outside the

law and without the authorization of law and each one of

them violated 18 U.S.C. § 2510 et seq., and 18 U.S.C. § 2520

5la

by the interception, disclosure and the intentional use of

wire, oral or electronic communications.”

Interception of Communication

Title III the 1968 ‘Omnibus Crime Control and

Safe Streets Act,’ codified at 18 U.S.C.

§§ 2510-2520, proscribes generally the intercep-

tion or disclosure of wire or oral communica-

tions, and provides a procedure through which

law enforcement officials can be authorized to

intercept such communications in certain lim-

ited circumstances.

United States v. Turk, 526 F.2d 654 (5th Cir. 1976). An

“interception” is defined in 18 U.S.C. § 2510(4) as follows:

‘{I]ntercept’ means the aural acquisition of the

contents of any wire or oral communication

through the use of any electronic, mechanical, or

other device.

The phrase “acquisition . . . through the use of any

_.. device” suggests that the central concern is with the

activity engaged in at the time of the oral communication

which causes such communication to be overheard by

uninvited listeners. Turk, 526 at 658. An “interception”

requires, at the least, involvement in the initial use of the

device contemporaneous with the communication to

transmit or preserve the communication. Id. at 658. A

telephone conversation is a wire communication, see

Briggs v. American Air Filter Co., Inc., 630 F.2d 414, 417 (5th

Cir. 1980), and therefore, covered by the wiretap statute.

Upon review of the motion, the evidence submitted

in support of the motion and relevant authority, the court

is of the opinion that Defendants are entitled to summary

52a

judgment in their favor with respect to Plaintiffs’ claims

pursuant to § 2511(a) and (b). Assuming that the informa-

tion was unlawfully gained, Plaintiffs have not asserted

or offered summary judgment evidence sufficient to raise

a question of material fact that Defendants Vines, Walker

and Rollins participated in the switching of telephone

lines and connections which made the interception of the

Brutons’ telephone conversations possible, that they

directly listened to the conversations, or that they solic-

ited any other person to intercept, listen to, or endeavor

to intercept the communications. Plaintiffs have not sub-

mitted evidence indicating that Defendants used the Dul-

worths’ telephone or procured anyone else to use it.

Plaintiffs have failed to submit evidence that Defendants

monitored the phone or had any agreement with the

Dulworths or anyone else regarding future conversations.

Plaintiffs have not shown that the conversations were

overheard as a result of suggestions of police direction,

coercion, or assistance. There is no evidence that Defen-

dants Vines, Walker or Rollins acquired knowledge of the

contents of the conversations other than through the ini-

tiative of Barr and Grogan to come forward with the

information to the Dallas Police Department.

Moreover, Plaintiffs have not provided evidence that

Vines, Walker and Rollins listened in on illegally inter-

cepted telephone conversations after Barr and Grogan

reported the information to them. Plaintiffs have merely

asserted that Defendants failed to remove the allegedly

illegal wiretap device and continued to use the informa-

tion obtained from the device for an internal investiga-

tion. The court finds that such conduct in the

circumstances of this case, even if true, does not violate

53a

the statute. The court finds that there is no evidence that

Vines, Walker and Rollins intercepted Plaintiffs’ phone

conversations, procured any other person to intercept, or

used any device or procured any other person to use a

device to intercept Plaintiffs’ conversations within the

meaning of the statute. The court concludes that Defen-

dants are entitled to judgment as a matter of law with

respect to claims asserted under § 2511(a) and (b).

Disclosure and Use of Communication

Plaintiffs have failed to establish that the law pro-

hibits Defendants’ disclosure and use of the contents of

the telephone conversations for an internal investigation

under § 2511 (c) and (d) of the wiretap statute. Plaintiffs

have failed to establish that Defendants’ use of the infor-

mation to launch an internal investigation into the possi-

ble corruption of its police officers is prohibited by the

wiretap statute, or that it does not fall with the autho-

rized disclosure and use provision of § 2517(1). Section

2517(1) provides:

(1) Any investigative or law enforcement offi-

cer who, by any means authorized by this chap-

ter, 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 enforce-

ment officer to the extent such disclosure is

appropriate to the proper performance of the

official duties of the officer making or receiving

the disclosure.

As previously discussed, Plaintiffs have failed to show

that Vines, Walker and Rollins obtained knowledge of the

54a

contents of the telephone conversations by methods vio-

lative of the wiretap statute. It is undisputed that Vines,

Walker and Rollins used information from Plaintiffs’ tele-

phone conversations to form part of the basis of an inter-

nal affairs investigation. However, the Internal Affairs

Division of the Dallas Police Department is charged with

the official duty of ensuring the complete and impartial

investigation of all complaints against any employee of

the department. Plaintiffs have failed to show that the

disclosure and use was for an improper purpose and not

authorized by this section as appropriate to the proper

performance of the official duties of Vines, Walker and

Rollins. Accordingly, Defendants Vines, Walker and

Rollins are entitled to summary judgment as a matter of

law.

As Plaintiffs have alleged that the City of Dallas

violated the wiretap statute because of the actions of its

police chief, Vines, assistant chief, Walker, and police

captain, Rollins, and since Vines, Walker and Rollins are

entitled to summary judgment, there is no basis for

asserting liability against the City of Dallas. Accordingly,

the City of Dallas is also entitled to summary judgment.

Supplemental State Claims

Plaintiffs claim that Defendants’ actions constitute an

invasion of privacy under the statutory and common law.

Intrusion upon Plaintiffs’ seclusion, or solitude, or into

their private affairs requires that there be an intentional

intrusion that is highly offensive to a reasonable person.

Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App. - Fort Worth

55a

1982). This type of invasion of privacy is generally associ-

ated with either a physical invasion of a person’s prop-

erty or by the eavesdropping on another’s conversation

with the aid of wiretaps, microphones or spying. Id. at

224. Defendants contend that since summary judgment is

appropriate on the federal claims, this court should dis-

miss Plaintiffs’ supplemental state claims. The court,

however, finds that since Plaintiffs have failed to point

out a material fact dispute enabling them to withstand

Defendants’ motion for summary judgment with respect

to the federal claims and that as liability under Plaintiffs’

invasion of privacy claim is premised upon the same

factual circumstances as their federal claims, Plaintiffs’

state law claims are subject to dismissal.

It is therefore ORDERED that the motion for sum-

mary judgment filed by Defendants the City of Dallas,

Vines, Walker and Rollins is granted, and Plaintiffs’ fed-

eral claims and supplemental state claims against these

Defendants are dismissed.

Signed this 17th day of November 1991.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

OPPOSITION

BRIEF

| oo et a

RILED 1

fy [ AUG 2 2 1994

No. 94-124 DFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

JAN FORSYTH, RICHARD KIRKS,

CHARLES BRUTON, and SUSAN BRUTON,

Petitioners,

MACK VINES, DWIGHT WALKER,

WILLARD ROLLINS, and THE CITY

OF DALLAS, TEXAS,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

CraiG Hopkins

Counsel of Record

Assistant City Attorney

Fritz J. Avcprine, Il

Assistant City Attorney

Office of the City Attorney

City of Dallas, Texas

1500 Marilla Street

7B North City Hall

Dallas, Texas 75201

(214) 670-3510

Counsel for Respondents

COCKLE LAW B6RIEF PRINTING CO., (600)

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the contents of telephonic communications over-

heard by private citizens can be used by law enforcement

officers in an internal administrative investigation in

accord with the Federal Wiretapping Act, 18 U.S.C.

§ 2517(1) and (2).

TABLE OF CONTENTS

Page

CPU a MAIO WEDS 5 cc nev cvccscevabatwacniane i

Bes GP CONN E sho voc ccc ccceceascavesnenens ii

SPR CH RUT IRI ooo vcccccccsncsevsbeccace iii

FEDERAL STATUTES INVOLVED.................. 1

SIATEMENT OF THE CAGE... .......ccscccccecces: 2

SUMMARY OF THE ARGUMENT ................. 5

ARGUMENT SUPPORTING DENIAL OF THE

WE GKS6cu dnb haneN peed euye cus a eee eee 6

iii

TABLE OF AUTHORITIES

Page

CASES

Application of Newsday, Inc., 895 F.2d 75 (2d Cir.

1990), cert. denied, 496 U.S. 931 (1990)............. 13

Cubic Corp. v. Cheney, 914 F.2d 1501 (D.C. Cir.

RT OE ee 8

Elkins v. United States, 364 U.S. 206 (1960)....... 7, 8,9

Forsyth, et al. v. Barr, et al., 19 F.3d 1527 (5th Cir.

EE eee passim

Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991)...... 14, 15

Gelbard v. United States, 408 U.S. 41 (1972) ......... 6, 7

Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990)........ 10

United States v. Giordano, 416 U.S. 505 (1974)....... 6, 7

United States v. Jones, 542 F.2d 661 (6th Cir. 1976)...14, 15

United States v. Vest, 813 F.2d 477 (1st Cir. 1987)

EE SE LEE ti, 12, 15

STATUTES

ES |

eis evn se dudscscesssenceweseos i, @

ED passim

EE 16

LEGISLATIVE History PROvIsIONS

S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in

ae aes 17

FEDERAL STATUTES INVOLVED

Section 2511 of Title 18 of the Federal Wiretapping

Act provides, in pertinent part:

§ 2511.

Interception and disclosure of wire, oral, or

electronic communications prohibited

(1) Except as otherwise specifically pro-

vided in this chapter any person who -

(a) intentionally intercepts, endeavors to inter-

cept, or procures any other person to intercept

or endeavor to intercept, any wire, oral or elec-

tronic communication;

(b) intentionally uses, endeavors to use, or

procures any other person to use any electronic,

mechanical, or other device to intercept any oral

communication... ;

close, to any other person the contents of any

wire, oral, or electronics communication, know-

ing or having reason to know that the informa-

tion was obtained through the interception of a

wire, oral, or electronic communication in viola-

tion of this subsection; or

(d) intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic commu-

nication, knowing or having reason to know

that the information was obtained through the

interception of a wire, oral, or electronic com-

munication in violation of this subsection... .

Section 2517(1) and (2) of Title 18 of the Federal

Wiretapping Act provide:

§ 2517. Authorization for disclosure and use of inter-

cepted wire, oral, or electronic communications

(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 dis-

closure 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 extentsuch use is appropriate to

the proper performance of his official duties.

STATEMENT OF THE CASE

Petitioners Forsyth ard Kirks, employed as police

officers for Respondent City of Dallas, were involved in

an undercover drug investigation during the relevant

time period. Forsyth and Kirks were members of the

Intelligence Division of tie Dallas Police Department

(“DPD”). The investigationwas facilitated by the involve-

ment of Petitioners Charles and Susan Bruton, paid gov-

ernment informants. Forsyth and Kirks’ investigation was

conducted, in part, from tie Brutons’ home.

During the investigatim John Barr, a Dallas attorney,

filed a complaint with the DPD concerning Forsyth. Barr

met with Respondent Walker who was in charge of the

Internal Affairs Division (“IAD”) to discuss the com-

plaint. At the meeting, Barr made serious allegations that

Forsyth had engaged in sexual, criminal, and administra-

tive misconduct throughout the course of the undercover

investigation. Barr informed Walker that neighbors of the

Brutons, Homer and Joyce Dulworth, had overheard con-

versations between Charles Bruton and Forsyth over one

of her telephone lines. Ms. Dulworth conveyed the infor-

mation from the intercepted conversations to another

neighbor, George Grogan. Grogan, in turn, passed_the

information concerning Forsyth to his attorney, John Barr.

Barr further informed Walker that Ms. Dulworth

thought the telephone had been disconnected, that it had

suddenly become operable, and that she believed her

telephone had become crossed with that of the Brutons.

Walker was told by Barr that a wiretap was not involved,

and Walker believed that the telephone had accidentally

become a party line. Petitioners have conceded that the

Respondents did not install any device or listen to any

conversations; nor is there any evidence that Respon-

dents participated in causing the lines to be crossed so

that the Dulworths could listen to conversations between

Forsyth and Bruton.

Due to the egregious nature of the allegations,

Walker initiated a preliminary internal investigation of

Forsyth’s activities. Preliminary investigations are con-

ducted to ensure the integrity of the police department

and are not reflected in the personnel record of the

emp oyee being investigated unless a violation is identi-

fied. Walker informed Respondent Rollins, as commander

of the Intelligence Division, of the preliminary investiga-

tion of Forsyth. Respondent Vines, as Chief of Police,

became apprised of the situation after meeting with

Grogan, City Manager Richard Knight, and the IAD chain

of command. Concerned about the integrity of the DPD

and the safety of the officers involved, Rollins ordered

Forsyth and Kirks: (1) not to discuss business over the

Bruton telephone, and (2) not to inform anyone that they

were given this order. Rollins also told the officers not to

use that telephone for their contact with their informant.

Forsyth and Kirks, however, continued to use the Bruton

telephone. In the course of the investigation, an internal

affairs investigator contacted Southwestern Bell Tele-

phone Company to check the Dulworths’ telephone line.

In response, a Southwestern Bell employee examined the

telephone line and located a spliced wire connecting the

Dulworth and Bruton telephone lines. The spliced wire

was subsequently disconnected.

In February of 1989, Forsyth, Kirks, and the Brutons

filed suit alleging that Vines, Rollins, and Walker, on

behalf of the City, “knowingly accepted and used infor-

mation illegally intercepted from [such] telephone con-

versations,” in violation of the Federal Wiretapping Act

(the “Act”). Respondents moved for summary judgment

which was granted by the district court on November 18,

1991. Forsyth, Kirks, and the Brutons appealed. The Fifth

Circuit affirmed in a published opinion. Forsyth, et al. v.

Barr, et al., 19 F.3d 1527 (5th Cir. 1994).

SUMMARY OF THE ARGUMENT

The Fifth Circuit’s decision in the present case does

not warrant review because the appeals court decision

correctly applies this Court’s precedent and applicable

law, and there is no conflict among the circuits. The Fifth

Circuit held that, “in light of the appellants’ scant proof, a

reasonable jury could not return a verdict for [Petitioners]

on the claim that the [Respondents] intentionally inter-

cepted, endeavored to intercept, or procured anyone to

intercept, the conversations . . . ” Forsyth, 19 F.3d at 1538.

Addressing the allegation of DPD’s disclosure or use of

information derived from an illegal wiretap, the court

correctly stated that Petitioners must demonstrate (1) that

the information used or disclosed came from an inter-

cepted communication, (2) that sufficient facts concerning

the circumstances of the interception show that the defen-

dant could have determined that the interception was

prohibited in light of the Act, and (3) that the statutory

exceptions, enunciated in § 2517(1) and (2), do not apply.

Forsyth, 19 F.3d at 1541. Upon application of § 2517(1) and

(2) to the unique facts of this case, the Fifth Circuit

properly held that Vines, Walker, and Rollins were “law

enforcement officers” within the meaning of § 2517(1)

and (2), and their internal use of the information pro-

vided to them by Barr was “appropriate to the proper

performance of [their] official duties”, as authorized by

§ 2517(1) and (2). Forsyth, 19 F.3d at 1542.

ARGUMENT SUPPORTING DENIAL OF THE WRIT

Throughout Petitioners’ brief they assume the exis-

tence of an illegal interception, and cite a number of cases

addressing what persons may or may not do with infor-

mation illegally intercepted. Petitioners attempt to

obscure from the Court’s view the fact that no illegal

interception was found in this case by the Fifth Circuit

nor by the district court. Forsyth, 19 F.3d at 1534, 1537.

This fact distinguishes each of the cases cited by Peti-

tioners, and renders their arguments infirm.

Citing United States v. Giordano, 416 U.S. 505 (1974)

and Gelbard v. United States, 408 U.S. 41 (1972), Petitioners

argue that the Fifth Circuit went outside the scope of

statutory language and failed to rely on this Court’s

interpretation of the Act. Petitioners rely on the holding

of both cases that, “Except as expressly authorized by the

Act, all interceptions of oral and wire communications

are flatly prohibited.” Gelbard, 408 U.S. at 46; See also

Giordano, 416 U.S. at 514. Petitioners ignore the fact, how-

ever, that no evidence of an illegal interception was sub-

mitted, nor was the issue addressed by the Fifth Circuit.

Forsyth, 19 F.3d 1537, 1539 n. 23. Assuming an illegal

interception, the Fifth Circuit nevertheless affirmed the

decision of the district court in favor of Respondents.

Forsyth, 19 F.3d 1527.

In Gelbard, this Court recognized that the Act autho-

rized the interception, disclesure and use of information

under certain circumstances. Gelbard, 408 U.S. at 46. The

protection of privacy, however, remained the overriding

concern. Gelbard, 408 U.S. at 48; Giordano, 416 U.S. 515.

The Fifth Circuit, upon a review of the facts and an

interpretation of the Act, held that Respondents’ use and

disclosure of the information was authorized by the Act

even in the event that the information was intercepted

illegally. Forsyth, 19 F.3d 1527. This authorization was

expressed in § 2517(1) and (2), discussed infra. Petitioners

fail to consider the Act in its entirety, but choose to apply

its bare statutory language on a piece-meal basis without

an enlightened application of the facts. The Fifth Circuit’s

holding in this case acknowledged thie maxims handed

down in Gelbard and Giordano, and conformed to those

concerns by allowing the use and disclosure of informa-

tion only in strict adherence to those situations autho-

rized by the Act.

Petitioners contend that the Fifth Circuit’s decision in

this case constructively resurrects the silver piatter doc-

trine rejected by this Court in Elkins v. United States, 364

U.S. 206 (1960). Under the silver platter doctrine, evi-

dence obtained by state agents in an unreasonable search

and seizure was admissible in a federal criminal trial,

where no federal agent participated in the search and

seizure and the state officers did not act solely on behalf

of the United States. Elkins, 364 U.S. 206. While peti-

tioners have correctly restated the silver platter doctrine

in their petition, their reliance upon Elkins in this case is

misplaced because of two material distinctions.

First, in Elkins there was an illegal seizure of evi-

dence by a law enforcement officer. The Court ruled that

evidence obtained by state officers during a search which,

if conducted by federal agents, would have violated a

defendant's right to be free from unreasonable searches

and seizures under the Fourth Amendment is inadmiss-

ible in a federal criminal trial. Elkins, 364 U.S. at 223. The

Court determined that the victim was not concerned with

whether evidence against him was illegally obtained by a

federal agent or by a state officer. Elkins, 364 U.S. at 215.

It was the actual illegal seizure of evidence by any law

enforcement official that brought about the rejection of

the silver platter doctrine in Elkins and not the passing of

evidence to an agent with “clean hands”. Elkins.

Petitioners conceded at oral argument in the Fifth

Circuit that none of the Respondents installed any device

or listened to any of the telephonic communications inter-

cepted by the Dulworths. Forsyth, 19 F.3d at 1535. The

facts also indicate that no police officer was present dur-

ing the time the communications were intercepted. (R.,

Vol. 8, pp. 436, 483, 502, 577). The Elkins decision dealt

solely with the illegal seizure of evidence by law enforce-

ment authorities and not with the reception of informa-

tion by private citizens. Elkins. Petitioners ignore the

obvious distinction that the protections championed in

Elkins safeguard citizens from only the obtrusive acts of

governmental authorities and not those of other private

citizens.

Second, Elkins focused on the admissibility of evi-

dence in criminal trials. Elkins. Petitioners are attempting

to advance their Title III claim by applying the Elkins

exclusionary rule to information simply being used in an

internal administrative investigation. Citing Cubic Corp. v.

Cheney, 914 F.2d 1501, 1504 (D.C. Cir. 1990), the Fifth

Circuit correctly held that “an ex parte administrative

‘determination is not a realistic forum in which to raise a

Title III claim,” because it would suffocate the intent and

purpose of such preliminary actions. Forsyth, 19 F.3d at

1540. The Fifth Circuit went on to state that had the

preliminary investigation identified a violation by For-

syth and/or Kirks and a formal complaint had been filed

resulting in an adverse determination, they would have

been free to challenge in court the reliance on information

derived from a wiretap. Forsyth, 19 F.3d at 1540-41. Peti-

tioners’ reasoning attempts to show that the principles

espoused in Elkins apply to the instant case. Petitioners

fail, however, to consider the present facts and their lack

of analogous traits to those in Elkins.

Petitioners assert that the Fifth Circuit’s holding in this

case conflicts with the Seventh Circuit’s refusal, in Rodgers v.

Wood, 910 F.2d 444 (7th Cir. 1990), to recognize a common

law privilege protecting statements made to police officers in

furtherance of investigating criminal activity as an exception

to the Act. The Wood case involved police officers executing a

search warrant on the property of a suspected receiver of

stolen goods. During the search, the officers discovered

goods believed to be stolen and the suspect was arrested.

The officers then used the suspect’s telephone to trace the

goods and to contact an investigative news reporter. Unbe-

knownst to the officers, the suspect had taped their conver-

sations. From the tapes it was apparent that, in violation of

Wisconsin law, the police had previously notified the repor-

ter of the planned search prior to the execution of the

warrant.

During the suspect’s ensuing criminal prosecution,

his attorney disclosed the contents of the intercepted

conversations to the internal affairs division of the offi-

cers’ department. Subsequently, the officers filed suit

claiming that the attorney’s disclosure of the communica-

tions violated the Act. On appeal of the grant of summary

judgment in favor of the officers, the Seventh Circuit

refused to recognize the common law privilege asserted

by the attorney. Wood, 910 F.2d at 447. Petitioners assert

that the holding in Wood conflicts with that of the Fifth

Circuit, but they have ignored the factual distinctions

between the case that renders the decisions consistent.

In Wood, the defendant was the attorney for the inter-

ceptor of the information and the actual deliverer of

taped communications to the police. Here, Respondents

are the recipients of such information as was the internal

affairs division in Wood. Wood makes no mention of the

plaintiff police officers bringing suit against the internal

affairs officers or the police department in general for

receiving the taped conversations. In the present case,

Petitioners actually brought suit against the deliverers of

information, as well as the receivers. Barr and Grogan

were sued for alleged violations of the Act as was the

attorney in Wood. The attorney in Wood lost on summary

judgment and on appeal, whereas Barr and Grogan set-

tled out of court with Petitioners. (Pet. for Writ, p. 4 n.2).

Therefore, the holding in Wood merely establishes the

potential liability of Barr and Grogan, not Respondents.

The liability of Barr and Grogan, however, was never

reached by the courts. Forsyth, F.5d at 1539 n.23.

Petitioners’ claim that Wood creates a conflict with

the Fifth Circuit’s holding in this case is perplexing for

yet another reason. In their Petition for Writ, Petitioners

state:

The Seventh Circuit’s reasoning directly con-

flicts with that of the Fifth Circuit. The Fifth

Circuit reasons that not allowing the police to

use illegally obtained information to investigate

potential criminal conduct “flies in the face of

common sense, and would require [a reading of]

§ 2517(1) and (2) in a manner that compels an

absurd result.”. . . . Although the Seventh Cir-

cuit did not specifically address § 2517(1) and

(2), their underlying reasoning still conflicts

with that of the Fifth Circuit.

(Pet. for Writ, p. 13). Wood makes no mention of § 2517(1)

and (2) as the interpretation of this section would have

been irrelevant to the application of the Act to the facts of

the case. Had the individual officers in Wood brought suit

against their department for receiving and using the

information as did the Petitioners here, the court’s anal-

ysis would have likely involved an application of

§ 2517(1) and (2). Petitioners admit that the Seventh Cir-

cuit did not address this situation, yet they make the

conclusory allegation that the Seventh Circuit’s reasoning

would compel a result that conflicts with that of the Fifth

Circuit. Thus, Wood does not aid the Court in the resolu-

tion of this case and certainly creates no conflict among

the circuits concerning the issues herein.

Petitioners claim that critical to the Fifth Circuit’s

decision is the fact that the Respondents had no involve-

ment in the procurement of the communications, but

were merely innocent recipients thereof. It is Petitioners’

contention that this holding is in conflict with that of the

First Circuit in United States v. Vest, 813 F.2d 477 (1st Cir.

1987). In Vest, the court held that illegally intercepted

information was inadmissible as evidence, even though

the government played no role in the interception. Vest,

813 F.2d at 481. It is clear that upon an analysis of the

reasoning of both circuits, the decisions are not antithetic.

Critical to the decisions of both the Fifth and First

Circuits was the intended use of the information inno-

cently received. The Vest decision focused upon the fact

that the information was to be admitted into evidence in

a criminal prosecution in violation of § 2515 of the Act

(the statutory exclusionary- rule). Vest, 813 F.2d at 481.

Addressing the innocence of the recipient, the Vest Court

merely refused to create an exception under § 2515 for the

introduction into evidence of illegally intercepted com-

munications by an innocent recipient. Vest, 813 F.3d at

480-481. The court in Vest did not consider or address the

disclosure or use of the communications under § 2517(1)

and (2), which require an inquiry into the innocent or

knowing status of the recipient, as such an analysis

would be irrelevant under a § 2515 determination.

Addressing the § 2515 issue and the present case, the

Fifth Circuit held that § 2515 was not applicable under

the present facts because the information was not offered

or introduced into evidence at any trial, hearing, or pro-

ceeding. Forsyth, 19 F.3d at 1540-41. Moreover, the court

held that § 2515 is dependent upon a motion to suppress,

further illustrating its applicability to evidentiary situa-

tions only. Forsyth, 19 F.3d at 1541.

Petitioners have misconstrued the Fifth Circuit’s

opinion in this case by inferring that the court focused

solely upon the “clean hands” of the Respondents in

determining that they did not violate the Act. The use

and disclosure of the information is inherent in the anal-

ysis of § 2517(1) and (2), and was not disregarded by the

court. The court merely clarified that beyond an initial

determination of the specific use and disclosure existing

in a specific case, proper application of § 2517(1) and (2)

requires the court to focus upon whether the officers

gained knowledge of intercepted communications law-

fully, rather than on whether the interception was ini-

tially lawful. Forsyth, 19 F.3d at 1545 n.34. Like the First

Circuit in Vest, the Fifth Circuit in the instant case cor-

rectly focused on the use of the procured information, but

was further required to ascertain the level of Respon-

dents’ knowledge. Because § 2515 did not apply in a

situation involving a preliminary administrative investi-

gation, the Fifth Circuit was required to view the dis-

closure and use of the information in the context of

§ 2517(1) and (2).

Section 2517 provides that if a law enforcement offi-

cer has lawfully obtained knowledge of the contents of

any intercepted communication, the officers are allowed

to (1) disclose such contents to another investigative or

law enforcement officer, and (2) use such contents to the

extent such use and disclosure is appropriate to the

proper performance of [their] official duties. Forsyth, 19

F.3d at 1545, citing Application of Newsday, Inc. 895 F.2d 75,

76 (2d Cir. 1990) (emphasis added), cert. denied, 496 U.S.

931 (1990). Here, the information was to be used in con-

ducting a preliminary internal affairs investigation,

referred to by the court as an “ex parte administrative

determination,” and not in an evidentiary setting. Forsyth,

19 F.3d at 1540. The Fifth Circuit correctly held that such

disclosure and use was authorized by § 2517(1) and (2).

The district court dia not inquire into the legality of

the interception. Forsyth, 19 F.3d at 1538. Illegality was

assumed by the Fifth Circuit for the purpose of interpret-

ing the Act as applied to an issue of first impression.

Forsyth, 19 F.3d at 1539. No evidence was submitted by

Petitioners to support their claim of an illegal intercep-

tion, much less an illegal wiretap. Forsyth, 19 F.3d at 1537.

Because Petitioners’ theory supporting a grant of cer-

tiorari is dependent upon the existence of an illegal wire-

tap and an illegal interception, they have chosen to ignore

any examination of § 2517(1) and (2). This is fatal to their

argument because the Fifth Circuit’s decision in this case

is based upon a thorough and precise analysis of the

evidence presented by Petitioners and upon a careful

analysis of the intent of § 2517(1) and (2). The court did

not create a new exception to the Act. The Fifth Circuit

was careful to limit its decision to “such use and dis-

closure” that was present in this case. Forsyth, 19 F.3d at

1539.

Petitioners attempt to obscure or misrepresent the

facts to create an illusory conflict between the Fifth Cir-

cuit’s decision and those of the Sixth Circuit in Fultz v.

Gilliam, 942 F.2d 396 (1991) and United States v. Jones, 542

F.2d 661 (1976). Gilliam and Jones each concerned a hus-

band’s interception of communications of his wife

accused of having an extra-marital affair. Holding that

the interception violated the Act, the court found the

language of the Act to be straightforward and compre-

hensive in prohibiting all electronic surveillance not spec-

ifically authorized by the Act. Gilliam at 400; Jones at 666.

Petitioners state that in Gilliam and Jones, the Sixth Circuit

made it equally clear that the Act prohibits the use and

disclosure of all illegal wiretaps. While Respondents

agree that the Act prohibits interception of communica-

tions not authorized by the Act, it does not prohibit the

use and disclosure of information derived from illegal

wiretaps in all situations. Gilliam and Jones involved the

interspousal interception of communications in violation

of § 2511(1)(c) and (d) wherein the defendant husband

claimed interspousal immunity in disclosing the informa-

tion. Petitioners ignore the plain language in Gilliam,

where the Sixth Circuit refused to recognize interspousal

immunity under the Act by holding:

Nothing in the language of these subsections

[2511(1)(c) and (d)] indicates to us that Congress

intended a more narrow scope in prohibiting

disclosure and use of wrongfully intercepted

material than it did in prohibiting the intercep-

tions themselves.

Gilliam, 942 F.2d at 400. The Sixth Circuit was correct in

limiting its holdings in Gilliam and Jones to the interpreta-

tion of 2511(1)(c) and (d) because no exceptions of the

Act, namely § 2517(1) and (2), applied to those sets of

facts.

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 and use of illegally

intercepted communications by a person who knows or

should have known of the illegality of the interception is

usually prohibited, it may be authorized under other

subsections of the Act. The Fifth Circuit properly held

that the Respondents’ disclosure and use of the informa-

tion in conducting the investigation were authorized by

§ 2517(1) and (2). Forsyth, 19 F.3d at 1545. Section

§ 2517(1i) and (2) are qualified by the introductory phrase,

“Any investigative or law enforcement officer who, by

any means authorized by this chapter, has obtained

knowledge of tne contents of any wire, oral, or electronic

communication. ...” 18 U.S.C. § 2517(1) and (2). These

subsections contain no language limiting a law enforce-

ment officer’s use or disclosure of information to that

legally intercepted. To further evidence this fact, the Fifth

Circuit engaged in statutory construction showing that

§ 2517(3) allows the introduction inte evidence of infor-

mation “intercepted in accordance with the provisions of

this chapter [the Act].” 18 U.S.C. § 2517(3). Congress

chose not to limit § 2517(1) and (2) in the same manner as

§ 2517(3) in order to promote the proper performance of a

law enforcement authority. The Fifth Circuit went a step

further to reject Petitioners’ contention that all use and

disclosure of information from illegal wiretaps is prohib-

ited by examining the Act’s legislative history which

states:

Neither paragraphs (1) nor (2) [of § 2517] are

limited to evidence intercepted in accordance with

the provisions of the proposed chapter, since in cer-

tain limited situations disclosure and use of ille-

gally intercepted communications would be

appropriate to the proper performance of the offi-

cers’ duties.

S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968

U.S.C.C.A.N. 2112, 2188 (emphasis added). The decisions

in Gilliam and Jones are not in conflict with that of the

Fifth Circuit in the present case. They simply involve

different facts which require the a__.ication of different

subsections of the Act. Recognizing that § 2517(1) and (2)

applied to the facts of this case, the Fifth Circuit correctly

engaged in statutory construction and employed legisla-

tive history to demonstrate that Petitioners had once

again misconstrued the facts and misinterpreted the Act.

CONCLUSION

No conflict exists among the circuits as the Fifth

Circuit correctly held that there was no evidence of an

illegal interception, and assuming an illegal interception,

the court accurately interpreted the Act in finding no

violation on behalf of Respondents. Therefore, the Peti-

tion for Writ of Certiorari should be denied.

Respectfully submitted,

CraiGc Hopkins

Counse! of Record

Assistant City Attorney

Fritz J. Avprine, Il

Assistant City Attorney

Office of the City Attorney

City of Dallas. Texas

1500 Marilla Street

7B North City Hall

Dallas, Texas 75201

(214) 670-3510

Counsel for Respondents

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