Cheryl M. Morford v. City of Omaha , 98 F.3d 398 ( 1996 )

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No. 96-1140
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Cheryl M. Morford, *
*
Appellant, *
*
v. *
*
City of Omaha, a municipal *
corporation and political * Appeal from the United States
subdivision of the State of * District Court for the
Nebraska; James Skinner, * District of Nebraska.
individually and in his *
capacity as Chief of Police of *
the Police Department of the *
City of Omaha, Nebraska; John *
Car, individually and in his *
capacity as a police officer *
for the City of Omaha, Nebraska,*
*
Appellees. *
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Submitted: September 11, 1996
Filed: October 21, 1996
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Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
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BOWMAN, Circuit Judge.
Cheryl Morford appeals from the decision of the District Court1
denying her claims for statutory damages, attorney fees, and costs, despite
a jury verdict in her favor in her suit against the city of Omaha and
certain law enforcement officers for the unlawful interception of her
telephone conversations. We affirm.
1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska.
In the spring of 1990, a metro area task force that included, among
others, the Omaha Police Department and the Douglas County Sheriff's
Department, in a continuing investigation of the Omaha Hell's Angels
Motorcycle Club, received court authorization to install a pen register on
the telephone of Gary Apker. A pen register collects and prints out
information about calls made to or from the target telephone, although it
tells an investigator nothing about the content of the calls. By June
1990, investigators had sufficient information to apply for court
authorization for a wiretap of Apker's telephone so that they might record
his conversations. Omaha police officer John Car, who had been with the
police department's special operations squad since January 1985, was
assigned to assist in installing first the Apker pen register and then
later the Apker wiretap. Car asked the task force to advise him
approximately one week before the wiretap was expected to receive court
approval, so that he might run audio tests on the equipment, a practice he
regularly followed.2
On June 19, 20, and 21, 1990, having received notification that court
approval of the wiretap was imminent, Car tapped into Apker's telephone
line with audio equipment that he attached to the pen register that already
was operating. Car's only purpose in doing so was to check the sound
quality on the line and to be sure that the recording equipment was
operating properly. As he described his testing routine, when the
equipment indicated that the target's telephone was in use, Car would
listen for a few seconds with headphones, then put the headphones around
his neck and turn on one or more cassette tape recorders, taping the
conversations. Car would then rewind each cassette tape, listen to
2
Car testified that he did not wait for the wiretap to be
authorized because, once the warrant was signed, it was only valid
for thirty days. If something was amiss with the telephone lines
or recording equipment, investigators could lose already limited
wiretap time while the problem was identified and corrected.
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ten or fifteen seconds of the first part of the tape and a later part of
the tape, then physically destroy the tape.
On June 21, 1990, someone using Apker's telephone twice dialed the
telephone number of the Old Brass Shack, a metal polishing business owned
and operated by Morford and her husband.3 A paper tape printed out by the
pen register/wiretap showed that the first call went out at approximately
12:10 p.m. and lasted only twelve seconds, a duration that, in Car's
experience, indicated the call was not answered. (He had no recollection
of specific calls or conversations.) Approximately two minutes later,
another call made to the Old Brass Shack lasted one minute, eighteen
seconds.
Four days later, on June 25, 1990, a state district court judge
signed a warrant authorizing the wiretap on Apker's telephone. The
investigation led eventually to the arrest and prosecution of several
individuals, including Cheryl Morford. Morford entered a conditional
guilty plea in federal court. She then appealed the conviction, arguing,
inter alia, that the evidence obtained from the wiretap should be
suppressed for reasons related to the pre-warrant testing. This Court
concluded that the district court in Morford's criminal case properly
denied suppression. United States v. Lucht, 18 F.3d 541, 546 (8th Cir.),
cert. denied, 115 S. Ct. 363 (1994). When Car's testing procedures came
to light as a result of the suppression hearing, the Omaha police
department policy was changed so that no testing involving the interception
of telephone conversations would occur until a wiretap was properly
authorized.
In October 1993, Morford filed this civil lawsuit against the city
of Omaha, Car, and Omaha police chief James Skinner under
3
Morford testified that her husband was not in the shop that
day, and thus it could not have been his conversation that was
recorded, because he was in prison on drug charges at the time.
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Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. §§ 2510-2521 (1988 & Supp. II 1990) (the Act), seeking statutory
damages, punitive damages, attorney fees, and costs for the unlawful
interception of her telephone conversations. After trial, a jury found in
favor of Morford, but denied her claim for punitive damages. The District
Court thereafter denied Morford statutory damages, attorney fees, and
costs. Morford appeals.
Morford first argues that the District Court was without discretion
to deny her an award of statutory damages when the jury found in her favor
on her claim that defendants violated the Act. That argument is foreclosed
by our opinion in Reynolds v. Spears, 93 F.3d 428, 433-35 (8th Cir. 1996),
where we held that the trial court has discretion under 18 U.S.C.
§ 2520(c)(2) (1988) to decline to award statutory damages for illegal
telephone interceptions. The question remains, however, whether the
District Court abused its discretion in declining Morford's request for
statutory damages in the amount of $10,000 for each violation. We hold
that it did not.
The District Court is on the record in a ruling from the bench with
a number of reasons for denying statutory damages. The court found Morford
sustained no actual damages, and that the "privacy intrusion . . . appears
to have been relatively minor." Partial Transcript of Proceedings, Dec.
1, 1995, at 10. The court concluded that those who may have played a part
in the unlawful interceptions misunderstood the law and did not believe the
pre-warrant testing was illegal. Further, according to the court, Car
never intended to monitor for information, or to use in any way information
gleaned from any conversations that may have been intercepted in the course
of his testing of his equipment. Finally, although the testing procedure
has been changed, the court found that Morford's civil lawsuit did not
cause the change.
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To those reasons we would add that the evidence shows Morford was
recorded on only one day, two times at most, and for no more than ninety
seconds total. There is no evidence that Car disclosed to anyone the
substance of any conversation that he may have heard. Car was the officer
assigned to handle only the technical aspects of the intercept. He was not
a member of the task force investigating Apker and therefore was not privy
to the details of the ongoing investigation. Car physically destroyed each
tape by breaking it and ripping it out of the cassette as soon as he
verified, by listening to a few seconds of the tape, that the recording
equipment was operating properly. He clearly did not believe his actions
were illegal and never tried to conceal the fact of his pre-warrant
testing. Car's actions were part of an otherwise lawful investigation that
resulted in the arrest and conviction of several individuals, including
Morford, and the dissolution of a substantial conspiracy to distribute
methamphetamine in the Omaha area.
In these circumstances, we conclude that the District Court did not
abuse its discretion in denying Morford's request for statutory damages.
Finally, we come to the question of attorney fees and costs. Under
the Act, a person whose communication is unlawfully intercepted may recover
"a reasonable attorney's fee and other litigation costs reasonably
incurred." 18 U.S.C. § 2520(b)(3) (1988). Because such an award is
discretionary with the court, we will reverse only for an abuse in the
exercise of that discretion. See Reynolds, 93 F.3d 428, 436 (8th Cir.
1996). The District Court denied fees and costs "for the same reasons [the
court] found with regard to statutory damages." Partial Transcript of
Proceedings at 11. Finding no abuse of discretion, we affirm.
In addition to the reasons enumerated in support of the denial of
statutory damages, the most cogent reason for denying attorney
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fees and costs is Morford's lack of success on her claim--statutory and
punitive damages were denied. We have previously concluded that a district
court would not abuse its discretion in excluding from a fee award "time
spent in unsuccessfully seeking amended statutory damages and punitive
damages." Bess v. Bess, 929 F.2d 1332, 1335 (8th Cir. 1991). Since
statutory and punitive damages were the only relief Morford sought, and no
such damages were awarded, we cannot say that the District Court abused its
discretion in denying fees and costs.
Morford has claimed, both in her testimony before the District Court
and in her brief, that she brought suit "mainly to make the [sic] sure the
City of Omaha stopped this outrageous policy of illegally intercepting
unknown members of her community." Brief of Appellant at 29. She claims
that, "[b]ecause of this case, the City of Omaha has stopped" and that she
should be awarded fees for accomplishing this public purpose. Id. Given
the uncontroverted record in this case, that argument is unavailing.
Morford and her co-defendants were arrested in the fall of 1990. A
hearing on the motion to suppress the wiretap evidence in Morford's
criminal case because of Car's audio tests was held in October 1991. The
undisputed testimony at the trial in this civil case demonstrates that the
Omaha police department policy of performing pre-warrant audio tests by
tape recording telephone conversations had been abolished by 1992--well
before Morford's complaint was filed in October 1993. Thus, her claim that
this suit was responsible for changing Omaha's unlawful policy must be
rejected.
The judgment of the District Court is affirmed in all respects.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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