Alire v. Bell ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 11/5/96
FOR THE TENTH CIRCUIT
WILLIE ALIRE, LARRY DIAZ,
Plaintiffs-Appellants,
v. No. 96-2021
(D.C. No. CIV-94-622-JP)
STEVE BELL, (D. N.M.)
Defendant-Appellee,
and
GENE JOHNSON; JOHN DOE, I
THROUGH X; JANE DOE, I
THROUGH X,
Defendants.
ORDER AND JUDGMENT *
Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiffs Willie Alire and Larry Diaz appeal from a district court order
granting summary judgment to defendant Steve Bell. In 1992, Bell, a police
officer, facilitated the recording of several telephone conversations between
Alire, who was using a cordless telephone, and Diaz, who was using a standard
land-line telephone. Bell passed these recordings on to another defendant.
Plaintiffs contend that in so doing Bell violated 18 U.S.C. § 2511 (prohibiting the
unauthorized intentional interception of certain communications), 47 U.S.C. § 605(prohibiting the unauthorized divulgence of intercepted communications), and
their Fourth Amendment right to privacy. 1 The district court held that plaintiffs
failed to establish that Bell violated clearly established law, and thus granted his
motion for summary judgment on the ground of qualified immunity. We affirm.
We review de novo the grant of summary judgment; however, our approach
differs from that in other summary judgment rulings because of the qualified
immunity defense. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). Once a
1
In the district court plaintiffs also claimed that Bell’s actions violated state
law, but did not argue on appeal that the district court erred in ruling against them
on that issue.
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defendant raises a qualified immunity defense, the plaintiff must demonstrate that
the defendant violated a constitutional or statutory right that was clearly estab-
lished at the time of the challenged conduct. Albright v. Rodriguez, 51 F.3d
1531, 1534 (10th Cir. 1995). To satisfy this burden “the plaintiff must do more
than identify in the abstract a clearly established right and allege that the defen-
dant has violated it.” Romero, 45 F.3d at 1475.
The plaintiff must demonstrate a substantial correspondence between
the conduct in question and prior law allegedly establishing that the
defendant’s actions were clearly prohibited. The “contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523(1987). While Anderson makes clear that there is no requirement
that the specific action [sic] in question have previously been held
unlawful, the plaintiff must show that the unlawfulness of the con-
duct in question is “apparent” in light of preexisting law. Id.Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990). If the plaintiff
fails to satisfy this burden, the defendant prevails, and we need not consider
whether the defendant established the absence of material issues of fact. See
Romero, 45 F.3d at 1475.
In this case, we agree with the district court’s conclusion that plaintiffs
failed to show clearly established law that an officer, intercepting cordless
telephone transmissions, could be liable to any party to the intercepted conversa-
tion who might be using a conventional land-line telephone. Accordingly, we
affirm. See McKamey v. Roach, 55 F.3d 1236 (6th Cir. 1995) (affirming the
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dismissal of an action for damages under 18 U.S.C. §§ 2510-2521, arising out of
the interception of cordless telephone transmissions in 1992 [before 1994 amend-
ments to Title III], when one of the plaintiffs used a standard land-line telephone
during the intercepted conversations); In re Askin, 47 F.3d 100 (4th Cir.) (reject-
ing arguments under both 18 U.S.C. § 2511 and the Fourth Amendment and
affirming a contempt citation arising out of a witness’ refusal to answer questions
derived from cordless telephone transmissions which were intercepted in 1993,
when the witness used either a conventional land-line telephone or a cellular car
telephone during the intercepted conversations), cert. denied, 116 S. Ct. 382(1995).
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
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