John McGee v. Jonathon Broz ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2874WM
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John Robert McGee, *
*
Appellant, * On Appeal from the United
* States District Court
v. * for the Western District
* of Missouri.
Jonathon E. Broz, *
*
Appellee. *
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Submitted: March 14, 2001
Filed: May 25, 2001
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Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and PERRY,1 District
Judge.
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RICHARD S. ARNOLD, Circuit Judge.
John Robert McGee filed suit against Jonathon E. Broz pursuant to 42 U.S.C.
§ 1983 alleging a violation of Mr. McGee's constitutional rights under the Fourth
Amendment. The District Court2 held that Mr. Broz was entitled to qualified immunity
1
The Hon. Catherine D. Perry, United States District Judge for the Eastern
District of Missouri, sitting by designation.
2
The Hon. Scott O. Wright, United States District Judge for the Western District
of Missouri.
and granted his motion for summary judgment. Mr. McGee appeals, and we affirm.
We hold that Mr. Broz, a Missouri prosecuting attorney, was in possession of facts
sufficient to justify an objectively reasonable official in believing that Mr. McGee had
committed a crime, even though this belief turned out to be wrong.
I.
In October of 1995, Debbie Hardin entered into a purchase agreement with John
McGee, the president and chief executive officer of Grand Pets, Inc. Ms. Hardin
agreed to sell, and Mr. McGee agreed to buy, eight "fully registerable" boxer puppies
for $275 each. Mr. McGee signed a check drawn on his company account in the
amount of $1,650 as payment for six of the eight puppies.3 An employee of Mr.
McGee delivered the check to Ms. Hardin in exchange for the puppies' registration
papers. After reviewing the registration papers, Mr. McGee discovered that Ms.
Hardin had check marked the registration papers for "limited registry," a fact which
significantly reduced the animals' value. Mr. McGee stopped payment on the check.
Ms. Hardin's attorney sent Mr. McGee a certified letter demanding that within
ten days of receiving the letter, Mr. McGee either pay Ms. Hardin for the puppies as
originally agreed, or return the dogs. The letter also informed Mr. McGee that failure
to comply with its terms would result in Ms. Hardin's turning the matter over to the
county prosecuting attorney for criminal prosecution. Mr. McGee received the letter
but took no action in response to it.
Jonathan Broz, an assistant prosecuting attorney and the defendant in this case,
was made aware that Mr. McGee had signed and delivered a check made payable to
Ms. Hardin in the amount of $1,650, that Mr. McGee had stopped payment on the
check, and that he had failed to take any action within ten days of receiving the demand
3
Two of the eight puppies were unsuitable for sale.
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letter. Mr. Broz signed and filed a felony complaint4 in a state court charging Mr.
McGee with "fraudulently stopping payment of an instrument" in violation of Mo. Rev.
Stat. § 570.125. Mr. McGee was arrested on a warrant and briefly incarcerated. Later,
Mr. Broz dismissed the charge.
Mr. McGee brought this 42 U.S.C. § 1983 action in the District Court requesting
compensatory damages, punitive damages, and attorneys' fees as recompense for an
alleged violation of his Fourth Amendment right against unreasonable seizure. The
District Court granted Mr. Broz's motion for summary judgment, holding that his
actions were objectively reasonable, and that he was entitled to qualified immunity.
This appeal followed.
II.
We review a district court's grant of summary judgment de novo. Anderson v.
Franklin County, Mo., 192 F.3d 1125, 1131 (8th Cir. 1999). Summary judgment is
proper only when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b). The moving party bears
the burden of making this showing. Lambert v. City of Dumas, 187 F.3d 931, 934 (8th
Cir. 1999).
On appeal Mr. McGee argues that the District Court erred in granting the
defendant's summary judgment motion because there are significant disputes of material
fact as to whether Mr. Broz acted in an objectively reasonable manner. We disagree.
Officials are afforded broad qualified immunity when seeking the issuance of
warrants. See Malley v. Briggs, 475 U.S. 335, 344-45 (1986). To decide whether an
4
If "the face amount of the check or draft is one hundred fifty dollars or more,"
the offense is a felony. Mo. Rev. Stat. § 570.125.2.
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official is entitled to qualified immunity we must first determine whether the acts
alleged by the plaintiff violated clearly established law. George v. City of St. Louis,
26 F.3d 55, 57 (8th Cir. 1994). If so, we must determine "whether there is any genuine
issue of material fact as to whether the defendant official's actions violated the law; that
is, whether those actions were objectively legally reasonable . . .." George, 26 F.3d at
57. Where the challenged action is the issuance of a warrant, "the issue is not whether
the affidavit actually establishes probable cause, but rather whether the officer had an
objectively reasonable belief that it established probable cause." Thompson v. Reuting,
968 F.2d 756, 760 (8th Cir. 1992). To preclude a grant of qualified immunity a
"warrant application [must be] so lacking in indicia of probable cause as to render
official belief in its existence unreasonable." George, 26 F.3d at 57.
Mo. Rev. Stat. § 570.125 makes it a crime fraudulently to stop payment on a
check. The statute continues:
3. It shall be prima facie evidence of a violation of this section, if a
person stops payment on a check or draft and fails to make good the
check or draft, or return or make and comply with reasonable
arrangements to return the property for which the check or draft was
given in the same or substantially the same condition as when received
within ten days after notice in writing from the payee that the check or
draft has not been paid because of a stop payment order by the issuer to
the drawee.
4. "Notice in writing" means notice deposited as certified or registered
mail in the United States mail and addressed to the issuer at his address
as it appears on the dishonored check or draft or to his last known
address. The notice shall contain a statement that failure to make good
the check or draft within ten days of receipt of the notice may subject the
issuer to criminal prosecution.
Mo. Rev. Stat. § 570.125.3 & .4.
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There was prima facie evidence of a violation of Mo. Rev. Stat. § 570.125. At
the time Mr. Broz signed and filed the complaint he reasonably believed the following:
(1) that Mr. McGee had issued and delivered a check for $1,650 to Ms. Hardin as
payment for six puppies; (2) that Mr. McGee received the puppies and stopped
payment on the check; (3) that Ms. Hardin's attorney had sent, by certified mail, a letter
demanding either payment or the return of the dogs; and (4) that Mr. McGee received
the letter but did nothing in answer to it. Thus, Mr. Broz could have reasonably
believed that probable cause existed.
Mr. McGee argues that Ms. Hardin did not comply with the statute's notice
requirements. Mr. McGee contends that the statute requires that the payee, Ms.
Hardin, send the demand letter, not her attorney. We disagree. See Wallace, Saunders,
Austin, Brown & Enochs, Chartered v. Rahm, 963 S.W.2d 419, 422 (Mo. App. 1998);
State v. Weinstein, 411 S.W.2d 267, 272 (Mo. App. 1967) (an attorney's acts "are
those of his client[] and are regarded as having been done by, and binding on, the
client[ ]"). No reported case exists in which a Missouri court has interpreted § 570.125
as excluding notice sent by someone's lawyer, and we conclude, therefore, that the
defendant here was reasonable in accepting the lawyer's letter as the equivalent of a
letter from the client.
The plaintiff also argues that he in fact had attempted to return the dogs. These
events (assuming, as we must for present purposes, that they occurred in accordance
with the plaintiff's testimony) had already occurred before the letter was sent. More
importantly, the defendant prosecutor had no knowledge of any such events, nor any
reason to suspect that they had occurred.
III.
For the foregoing reasons, we hold that Mr. Broz was entitled to qualified
immunity and the District Court did not err in granting summary judgment.
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The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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