Opinion
No. 4:03CV00841 JLH.
October 8, 2004
OPINION AND ORDER
Jerry Best and his wife, Linda Best, brought this action under 42 U.S.C. § 1983, alleging that the Defendants unlawfully seized their bank records in violation of the Fourth Amendment. Defendants have moved for summary judgment, arguing that the Bests cannot make a prima facie showing that their actions violated the Fourth Amendment, that Chief Johnson cannot be held liable under § 1983 in his individual capacity, and that Chief Johnson and Detective Johnston are entitled to qualified immunity.
In any motion for summary judgment, a court asks whether "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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (quoting Fed.R.Civ.P. 56(c)). When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001).
Mr. Best worked as a police officer in the K-9 unit of the Little Rock Police Department ("Police Department") from 1982 until he retired on February 27, 2004. In 2003, the Internal Affairs office of the Police Department opened an official investigation of allegations against Mr. Best by a fellow K-9 officer, David Goodson. In a letter delivered to Chief Johnson, Officer Goodson alleged that Mr. Best had used the K-9 program for his personal benefit and possible monetary gain, specifically that he (1) trained dogs from other police departments for profit while on duty with the Police Department, (2) sold "dual-purpose" dogs to the Police Department when the dogs were not in fact dual-purpose, (3) sold defective dogs to the Police Department, and (4) used veterinary services for his own dogs and charged them to the City of Little Rock. These allegations, if proven true, could have constituted violations of the Police Department's General Orders and Rules and Regulations. During the course of the investigation, Mr. Best's case file was assigned to Detective Johnston who interviewed individuals with information relevant to the investigation. Detective Johnston states that, based on these interviews and the case file review, she determined that there was reasonable suspicion to believe that Mr. Best was involved in corruption and had violated the Police Department's General Orders and Rules and Regulations. Mr. Best admitted in Plaintiffs' Statement in Response to Statement of Undisputed Material Facts that he received veterinary services for more than one dog and these services were charged to the City. Mr. Best also admitted in his deposition that the investigation revealed evidence that made it appear that, while he kept one dog owned by the Department, he was charging the Police Department to feed more than one dog.
General Order 211 of the Police Department sets forth the Department's policies for conducting internal investigations. Paragraph VI.G of General Order 211 provides:
At the discretion of the Chief of Police, the employee may be required to submit or participate in the following specific processes (at the agency's expense) to further aid the investigation:
1. Medical/Laboratory examinations;
2. Financial disclosure statements;
3. Physical lineup;
4. Polygraphs.
Mr. Best received the general orders and understood that compliance with them was a condition of employment.
In view of the evidence she had gathered, Detective Johnston determined that it was necessary to review Mr. Best's bank records to conduct a complete investigation. On July 10, 2003, Detective Johnston called Mr. Best to the Internal Affairs office and informed him that he needed to sign an "Authorization to Release Information." Mr. Best met with Detective Johnston, Lieutenant Whitten, and Sergeant Russell King that same day and signed the authorization. The testimony is in dispute regarding whether Mr. Best was requested to sign the authorization, or, as Mr. Best contends, he was ordered to do so. For purposes of ruling on the motion for summary judgment, the Court assumes, as Mr. Best contends, that he was ordered to sign the release.
After securing Mr. Best's signature on the authorization, the Internal Affairs office obtained bank records from Metropolitan National Bank and Chart Bank of Perry County. The records pertained to joint bank accounts in Mr. and Mrs. Best's names. The Internal Affairs office did not obtain any other records pursuant to this authorization nor has it disclosed the information it obtained to any other person or entity prior to this lawsuit. The City of Little Rock takes the position that Mr. Best's file is regarded as confidential and is not subject to disclosure pursuant to the Arkansas Freedom of Information Act. On May 26, 2004, United States District Judge Susan Webber Wright entered an agreed protective order to that effect.
The Bests filed their complaint under 42 U.S.C. § 1983, "to enforce rights secured to the Plaintiffs by the Fourth and Fourteenth Amendments to the Constitution of the United States." They seek an injunction from the Court requiring the Defendants to return and destroy all of the records and prohibiting the Police Department from using any information it obtained in the records. In addition to injunctive relief, the Bests ask for compensatory damages against the City, Chief Johnson, and Detective Johnston; punitive damages against Chief Johnson and Detective Johnston; and costs and attorneys' fees.
From reading the complaint as a whole, it appears that the reference to the Fourteenth Amendment was made solely for the purpose of recognizing incorporation of the Fourth Amendment into the Fourteenth so that it is made applicable to the states. See Wolf v. Colorado, 338 U.S. 25, 27-28 (1949) ( overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961)). It does not appear that the Bests are attempting to allege some other violation of the Fourteenth Amendment because their allegations sound only in terms of unlawful seizure of property under the Fourth Amendment.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., amend. IV. The Bests have not alleged that the Defendants' actions constituted a search; they allege only an unlawful seizure. The determination of entitlement to Fourth Amendment protection, then, turns on the question of whether the Defendants' actions constituted a "seizure" within the meaning of the Fourth Amendment. United States v. Demoss, 279 F.3d 632, 637 (8th Cir. 2002). See also Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia, J., concurring) (stating that the determination of whether a seizure has occurred is a threshold question to Fourth Amendment analysis). A seizure occurs when "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). The plaintiff must first have a legitimate expectation of privacy in the items seized. United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). If there is no reasonable expectation of privacy, then there can be no Fourth Amendment violation. Id.
Because the Bests' case rests entirely on their Fourth Amendment claim, the Defendants argue that the holding in United States v. Miller, 425 U.S. 435 (1976), disposes of this case. In Miller, a criminal defendant moved to suppress copies of bank records that the government had obtained by means of subpoenas duces tecum. The Court found no legitimate expectation of privacy in the contents of the bank records. In so finding, the Court stated:
All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they `have a high degree of usefulness in criminal tax, and regulatory investigations and proceedings.' 12 U.S.C. § 1829b(a)(1).Id. at 442-43 (citation omitted). The Court also found that the defendant owned no possessory interest in the records themselves. The defendant in Miller could assert "neither ownership nor possession," as the papers were the "business records of the banks." Id. at 440.
The Bests argue that Miller no longer controls the outcome of the present case because Congress has since enacted the Right to Financial Privacy Act, 12 U.S.C. § 3401, et seq., in response to Miller. It is true that Congress passed the Right to Financial Privacy Act in response to that case and thereby provided statutory protection against unrestricted access to financial records where no such protection had been afforded by federal law. See McDonough v. Widnall, 891 F. Supp 1439, 1447 (D. Colo. 1995). The Right to Financial Privacy Act "protect[s] the customers of financial institutions from unwarranted intrusion into their records while at the same time permitting legitimate law enforcement activity." Id. (quoting H.R. Rep. No. 95-1383 at 33, reprinted in 1978 U.S.C.C.A.N. 9305). However, the Right to Financial Privacy Act does not nor could it create a constitutional expectation of privacy for purposes of the Fourth Amendment. Congress lacks the authority to create or expand constitutional rights. United States v. Kingston, 801 F.2d 733, 737 (5th Cir. 1986). In Kingston, the appellees claimed that the government's failure to comply with the requirements of the Right to Financial Privacy Act constituted a Fourth Amendment violation. Id. The Fifth Circuit rejected this argument, stating:
While it is evident that Congress has expanded individuals' right to privacy in bank records of their accounts, appellees are mistaken in their contention that the expansion is of constitutional dimensions. The rights created by Congress are statutory, not constitutional.
Thus, we must look to the Right to Financial Privacy Act itself to assess appellee's contentions.Id. In an analogous case, the Eighth Circuit followed similar reasoning, stating that "[w]hile it is clear to this court that Congress intended to create a statutory expectation of privacy in e-mail files, it is less clear that an analogous expectation of privacy derives from the Constitution." United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002).
The Eighth Circuit has continued to follow Miller long after the enactment of the Right to Financial Privacy Act. In United States v. Wilson, 806 F.2d 171 (8th Cir. 1986) ( reheard in part by United States v. Wilson, 15 F.2d 52 (8th Cir. 1987)), the court found that a defendant who requested suppression of subpoenaed bank records lacked standing to make this challenge on Fourth Amendment grounds. Citing Miller, the court stated that the materials were bank records, not the defendant's private papers, so any challenge to their production could only be made by the bank. Id. at 175. As the Defendants in the present case obtained only bank records, not personal or private property of the Bests, the Bests's claims are foreclosed by the holding in Wilson and Miller.
The Bests cite two cases in support of their argument that the Fourth Amendment protects a privacy interest in financial records. In the first, Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 115 (3rd Cir. 1987), the court stated that "[o]ther Courts have held that financial information such as that sought . . . is covered by the right to privacy." In the second, Denius v. Dunlap, 209 F.3d 944, 957 (7th Cir. 2000), the court stated, "[s]even of our sister circuits have found that the constitutional right of privacy in confidential information covers some financial disclosures." Neither case involved an investigation in which the agency had reason to believe that the government employee under investigation had gained financial benefits, to which he was not entitled, at government expense. Neither opinion addressed the Fourth Amendment. Both addressed the protection of financial disclosures in terms of a constitutional "right to privacy," which is "founded in the Fourteenth Amendment's concept of personal liberty. . . ." Whalen v. Roe, 429 U.S. 589, 600, n. 23 (1977). The Supreme Court in Whalen rejected the notion that a broad constitutional right of privacy emanates from the Fourth Amendment. Id. at 604, n. 32. As the Defendants point out in their brief, the Bests' have alleged only a violation of the Fourth Amendment.
Moreover, neither Fraternal Order of Police Lodge No. 5 nor Denius supports the Bests. In Fraternal Order of Police Lodge No. 5, the issue was whether the Philadelphia Police Department could require financial disclosures as a condition for employment in the Special Investigations Unit ("SIU"). The Third Circuit held that the Philadelphia Police Department could do so:
We conclude that the strong public interest in avoiding corruption among officers assigned to a unit designed to perform investigations in areas traditionally susceptible to corruption outweighs police officers' limited privacy expectations in the financial information sought by the SIU questionnaire.Fraternal Order of Police Lodge No. 5, 812 F.2d at 116. Here, even if it were open to the Court, after Miller and Wilson, to find a Fourth Amendment right to privacy in bank records, that right would be outweighed in this case by the strong public interest in avoiding corruption among police officers.
Denius held that a teacher's right to privacy was violated when a school teacher was required, as a condition of employment, to release a virtually limitless range of confidential financial information for no reason that the defendant could identify and under circumstances in which there was no guarantee that the information would be kept confidential and used only for legitimate governmental purposes. Denius, 209 F.3d at 958. Here, the Little Rock Police Department had a legitimate reason to order Mr. Best to authorize release of specified financial records, and the Department has a policy of not disclosing documents obtained in internal investigations. Moreover, the Arkansas Freedom of Information Act provides statutory protection of the records:
Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.
Ark. Code. Ann. § 25-19-105(c)(1). The bank records obtained in the course of the investigation are part of Mr. Best's job performance records. They did not provide a basis for suspension or termination of Mr. Best. If they had, the records could be inspected by the public only if a compelling public interest exists. The policy of the Little Rock Police Department and Ark. Code Ann. § 25-19-105(c)(1) constitute a sufficient guarantee that the confidentiality of the bank records will be maintained in the future. Hence, the rationale of Denius does not extend to this case.
Moreover, Denius held that the defendant was entitled to qualified immunity, despite violating the plaintiff's constitutional right to privacy in confidential information, because "we do not find that the law in this area was so clearly defined that a government official can be charged with its knowledge." Id. Here, the Court holds, first, that the Defendants did not violate any constitutional rights of the Bests and, secondly, that the Defendants' conduct did not violate clearly established constitutional rights of which a reasonable person would have known. Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir. 2004). Absent a constitutional violation, the Bests are entitled to no relief. Had a constitutional violation occurred, the Bests would be entitled only to injunctive relief because the Defendants, in their individual capacities, are entitled to qualified immunity.
For the reasons stated above, there is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law. Defendants' Motion for Summary Judgment (docket #29) is GRANTED.
IT IS SO ORDERED.