Opinion
Cause No. SA-97-CA-1473-OG.
March 31, 1999.
ORDER ACCEPTING IN PART AND REJECTING IN PART RECOMMENDATIONS OF MAGISTRATE JUDGE
On this date came on to be considered ten Memoranda and Recommendations ("recommendations") of United States Magistrate Judge John W. Primomo and the objections to the recommendations. The recommendations all concern FED. R. Civ. P. 12(b)(6) motions to dismiss filed by various defendants. Plaintiffs, Alan Brown and Lois Brown, have objected to the recommendations that defendants' motions to dismiss be granted. When a party objects to a memorandum and recommendation, the Court is required to make a de novo determination of those portions of the report or proposed findings or recommendations to which objection is made.Kreimerman v. Casa Veerkamp, 22 F.3d 634, 646 (5th Cir. 1994), cert. denied, 513 U.S. 1016 (1994); 28 U.S.C. § 636(b)(1)(C); FED. R. Civ. P. 72(b). When, on the other hand, no one has objected to the magistrate judge's recommendations, the Court need not conduct a de novo review of the entire record. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the recommendation and determine whether it is either clearly erroneous or contrary to law.United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989).
The memoranda and recommendations (MR), the corresponding motions to dismiss, and objections, by docket number, and the defendants who filed the motions to dismiss are:
Motion to Defendant(s) who filed motion to Objections to MR dismiss dismiss MR
739 689 Russell Wilson 753, 765
740 688 Joseph Cicherski, Dr. Wayne R. Deason, 753, 763, 766 and Deason Animal Hospital
741 690 Sheriff Joe D. Tackitt, Deputy Jason 753, 761, 763 Price and Deputy Christopher Ayala
748 696 Dr. Catherine Tull 776
750 684 Tracy Frank, John Helton, and Southern 756 and Animal Rescue Association, Inc. (SARA)
755 706 Ray Massey, Patricia Massey, and Hill 777 Country Greyhound Adoption, Inc.
758 676, 677 Wilson County News and Hearst Corporation 786 d/b/a San Antonio Express-News
769 681 UTV of San Antonio, Inc., d/b/a KMOL-TV 790
770 678 Chesapeake Television, Inc., d/b/a KABB-TV 790
771 673 Post-Newsweek Stations, San Antonio, Inc., 790 KSAT-TV
The Court has conducted an independent review of the record, a de novo review of the matters raised by the objections, and has reviewed the applicable law. In cases where no objections were lodged, the Court has reviewed the recommendation to determine whether it is clearly erroneous or contrary to law.
Motions to dismiss for failure to state a claim are viewed with disfavor, and a court will only rarely encounter circumstances that justify granting such a motion. Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 926 (5th Cir. 1988). The Court will accept the well-pleaded allegations in the compliant as true, construe those allegations in the light most favorable to the plaintiffs, and draw all inferences in their favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The facts discussed in this order will be as alleged by the Browns in their Third Amended Complaint (Doc. 656) in light of the standard mandated by Rule 12(b)(6). A claim will not be dismissed on a 12(b)(6) motion unless it appears to a certainty (1) that no relief can be granted under any set of facts provable in support of its allegations, or (2) that the allegations, accepted as true, do not present a claim upon which relief legally can be obtained. Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
Many of the Browns' claims apply to several defendants and cut across several recommendations. Rather than taking the recommendations one by one, it will be easier to group the defendants and the claims against them. The easiest way to do this is to organize the defendants into three groups: the official defendants, the individual defendants, and the media defendants.
I. Official Defendants
The official defendants are Wilson County Attorney Russell Wilson, former Wilson County Animal Control Officer Joseph Cicherski, Wilson County Sheriff Joe D. Tackitt, Deputy Sheriff Jason Price, Deputy Sheriff Christopher Ayala, and Dr. Catherine Tull, a licensed veterinarian and Texas Department of Health Officer.
All official defendants were sued in their individual capacities, and all except for Dr. Tull were sued in their official capacities. Since Wilson County remains a defendant in this case, the magistrate judge recommended that all official-capacity claims against these defendants be dismissed. Those recommendations are unobjected to and will be ACCEPTED. The magistrate judge also concluded that Wilson is not entitled to prosecutorial immunity. The Court agrees and will ACCEPT that recommendation.
A. Individual-capacity claims .
The official defendants assert that the Browns' individual-capacity claims under § 1983 and state-law claims are barred by qualified immunity and official immunity, respectively. Qualified immunity shields certain public officials performing discretionary functions from civil damage liability if their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). In Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793-94 (1991), the Supreme Court established a two-step analysis for qualified immunity cases. The first question is whether the plaintiff alleged the violation of a clearly-established constitutional right under currently applicable law. Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998); Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). If the plaintiff clears this hurdle, the court then determines whether the defendant's conduct was objectively reasonable in light of clearly established law as it existed at the time of the conduct in question. Petta 143 F.3d at 899-900; Rankin, 5 F.3d at 105. "Even if a defendant's conduct actually violates a plaintiff's constitutional right, the defendant is entitled to qualified immunity if the conduct was objectively reasonable." Duckett v. City of Cedar Park, 950 F.2d 272, 280 (5th Cir. 1992).
The analogous defense to state-law claims against individual defendants is official immunity. Official immunity is an affirmative defense that protects government employees from personal liability. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Government employees are entitled to official immunity from suit arising from the performance of (1) their discretionary duties (2) in good faith, so long as (3) they are acting within the scope of their authority. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). The test employed under state law is essentially the same as the § 1983 standard. City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994). However, state law has no threshold requirement that a right be clearly established.Id. at 657. Rather, official immunity hinges on whether the official's activities were undertaken in "good faith," that is, whether any reasonably prudent official could have believed that the conduct was consistent with the plaintiff's rights. Id. at 656-67; Cantu v. Rocha, 77 F.3d 795, 808-09 (5th Cir. 1996).
It is well settled that a public official enjoys qualified immunity not merely from liability, but from suit. Salas v. Carpenter, 980 F.2d 299, 301 (5th Cir. 1992). A plaintiff must plead specific facts that, if proved, would overcome the defendant's immunity defense; complaints containing conclusory allegations, absent reference to material facts, will not survive a motion to dismiss. Jackson v. City of Beaumont Police Dep't. 958 F.2d 616, 620 (5th Cir. 1992).
1. Procurement and scope of warrants . The Browns raise numerous complaints concerning the procurement and scope of the warrants. They allege that Wilson knew the affidavits failed to establish probable cause, that he knew the affidavits contained false statements or were recklessly prepared, and that he provided false information that led to the execution of the warrants. They allege that Sheriff Tackitt planned and supervised the participation of the animal activists and media defendants in the raid, and that he applied for the warrant for seizure of "100 + dogs" based on Cicherski's December 30 affidavit, which he knew or should have known lacked probable cause. They allege that Cicherski conducted an illegal, warrantless search of the Browns' property prior to the raid and that he neglected to disclose this Fourth Amendment violation in any of his affidavits. They allege that Dr. Tull provided advice to the activists and Cicherski concerning how to put the Browns out of business and how many animals to seize. They allege that Dr. Tull advised seizure of all the animals without having seen them and without regard to whether the animals had been mistreated.
An officer is not entitled to qualified immunity in applying for a warrant if a reasonably well-trained officer would have known that the affidavit supporting the warrant failed to establish probable cause and that he should not have applied for the warrant. Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098 (1986). When the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, qualified immunity will not shield the requesting officer. Id. at 344-45, 106 S.Ct. at 1098.
The magistrate judge found that the Browns' allegations are too conclusory and fail to provide sufficient detail to determine whether the affidavits are based on personal knowledge or provide a substantial basis for crediting hearsay statements in the affidavit. The Magistrate Judge, however, was focusing on the January 2 affidavits, concerning which the complaint presents far fewer details. The Browns have clearly alleged that the December 30 affidavit could not have supported the January 2 warrants because Justice of the Peace Flores who signed the January 2 warrants was not at the courthouse when the two January 2 affidavits were prepared by Wilson for Cicherski. Rather, the warrants were in the possession of either Cicherski or one of the Deputies at or near the front of the convoy that proceeded to the Browns' property for the raid. ¶ 72. The Browns alleged specifically that the January 2 warrants were either based on the December 30 affidavit or on no affidavit at all, and that their Fourth Amendment rights were violated by obtaining warrants based on the December 30 affidavit. Id. The Browns further alleged at least three reasons the December 30 affidavit lacked probable cause: it was "facially void", it did not contain information to show it was based on personal knowledge or on information related to the affiant by any other source, and it contained only conclusory allegations. ¶ 62. The Browns have specifically alleged a § 1983 claim against Wilson for his procurement of the warrants.
References to "¶" are to paragraphs in plaintiffs' Third Amended Complaint.
The magistrate judge concluded that the Browns had not alleged that the December 30 affidavit was a "bare bones" affidavit. An affidavit is "bare bones" if it so deficient in demonstrating probable cause that it renders an officer's belief in its existence completely unreasonable.United States v. Satterwhite, 980 F.2d 317, 320-21 (5th Cir. 1992). An affidavit that contains only conclusions and "lack[s] the facts and circumstances from which a magistrate can independently determine probable cause" is considered "bare bones" and cannot be the basis of an objectively reasonable good-faith reliance by an officer. Id. at 321. The Browns alleged that the December 30 affidavit was "facially void." ¶¶ 62, 73. For this and the other two reasons listed by the Browns, the affidavit qualifies as a bare bones affidavit.
Rather, the affiant stated merely, "I have reason to believe and do believe that on or about December 26, 1996. . . ." "Bare bones" affidavits contain wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause. See United States v. Brown, 941 F.2d 1300, 1303 n. 1 (5th Cir.) (per curiam) (giving as an example, an affidavit that states the affiant "`has cause to suspect and does believes'" that contraband is located on the premises (quoting Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933))), cert. denied, 502 U.S. 1008 (1991).
The Court agrees that the failure to describe the specific animals to be seized by number, breed, or location does not mean the affidavit lacked probable cause. Nor is there any allegation that Wilson knew that Cicherski went beyond the area of the Browns' consent in Cicherski's December 22 visit to the Browns' property.
The Browns also claim that Wilson provided false information concern his re-drafting of the supporting affidavits on January 2, but the Browns clearly allege that those affidavits were provided after the execution of the seizure warrants. ¶ 74. Wilson's actions after the issuance of the warrants cannot have led to the issuance of the warrants.
The Browns do not allege that the Sheriff or the Deputies saw a copy of the "expert report" that put the recipients on notice that the activists were conspiring to turn the raid into a media event with the purpose of seizing all the animals and publicizing the seizure to obtain sympathy and financial contributions. They allege that Sheriff Tackitt somehow acquired this knowledge (¶ 60), but do not indicate that the knowledge was acquired before his application for a warrant. Therefore, it cannot be said that the Sheriff applied for the December 30 warrant with the knowledge of the impending "media event."
The Browns also allege that Sheriff Tackitt applied for the December 30 warrant based on Cicherski's December 30 affidavit without ever having spoken to Cicherski, and that the Sheriff "knew or reasonably should have known from the face of Cicherski's December 30 affidavit that it was inadequate to support the existence of probable cause for the issuance of a warrant, contained false or misleading statements, and/or that Cicherski was reckless in preparing his affidavit." ¶ 64. Sheriff Tackitt applied for a warrant based on Cicherski's December 30 affidavit. Id. Cicherski signed his two January 2 affidavits after Justice of the Peace Flores had already issued a search warrant based on the December 30 affidavit. ¶ 71. It is therefore apparent that the warrant Sheriff Tackitt applied for was the one signed by Justice of the Peace Flores prior to January 2. Two additional warrants were executed on January 2 by Justice of the Peace Flores. ¶ 72. Flores was not at the courthouse when the January 2 affidavits were created, therefore those affidavits could not have been the basis for the January 2 warrants. ¶¶ 72, 74. Those warrants were based on either the December 30 affidavit or were issued without supporting affidavits. ¶ 72. The complaint is unclear which warrants were actually used to enter the Browns' property, but because the complaint speaks of warrants in the plural, it may be inferred that the January 2 warrants were used. ¶¶ 72, 74, 78. This inference is supported by the fact that the warrant Sheriff Tackitt applied for based on the December 30 affidavit was to seize "in excess of 100 dogs," (¶ 64) while one January 2 warrant was for dogs and the other for cats (¶ 72). Considering the Browns' complaint as a whole, it is clear that the December 30 warrant was not used in the search. Therefore, the December 30 warrant will not support a claim against Sheriff Tackitt.
The Browns allege that Cicherski failed to disclose in his affidavits that he obtained some of the information contained in his affidavits during an earlier search that violated the Browns' Fourth Amendment rights. As the magistrate judge pointed out, these allegations defeat Cicherski's qualified immunity defense.
According to the Browns, the warrants are overly broad because they provided for seizure of all their animals without regard to whether they had been mistreated. The Browns attribute this to the advice Dr. Tull provided to Cicherski. ¶¶ 53-54. They also allege that in providing this advice to Cicherski, Dr. Tull assumed a duty to the Browns to act with reasonable care, and that by virtue of her training, Dr. Tull should be held to a higher standard of care. ¶¶ 131-32. The magistrate judge concluded that Dr. Tull was entitled to qualified immunity because the Browns did not allege that Dr. Tull provided false information that led to the issuance of the warrant or that she had any control over Cicherski, and that the allegations fail to establish the warrant was over-broad simply because it called for the seizure of "100+ dogs." Clearly, Texas law provides that only animals that have been "cruelly treated" are subject to seizure. TEX. HEALTH SAFETY CODE ANN. § 821.022 (Vernon 1992). It would be objectively unreasonable for the state to seize healthy and well-treated animals pursuant to this statute, yet the Browns allege that Dr. Tull advised Cicherski to seize all the Browns' animals even though she had not seen them, that this advice was given with intentional indifference to and reckless disregard for the actual condition of the specific animals to be seized, and in spite of Dr. Tull's familiarity with the Health and Safety Code provisions. It bears repeating that Dr. Tull is a licensed veterinarian employed by the Texas Department of Health, ¶ 52, and she is presumably familiar with the Health and Safety Code provisions for the seizure of mistreated animals.
Dr. Tull had never seen the animals, let alone examined them. Yet she provided the impetus to Cicherski, who relied on her advice, for the seizure of all the Browns' animals. Apparently very few animals had actually been mistreated because the Deputies instructed all but eight of the animals to be retuned to the Browns that morning. ¶¶ 86, 88. "A government official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the warrant." Hart v. O'Brien, 127 F.3d 424, 448-49 (5th Cir. 1997). Dr. Tull, as a state official, was reckless in advising Cicherski to request a warrant for the seizure of all the Browns' dogs without having first ascertained that those dogs had been "cruelly treated." Further, it was objectively unreasonable for a state official in Dr. Tull's position to provide this advice for use in an affidavit in support of a search warrant for mistreated animals. She is therefore not entitled to qualified immunity.
2. Failure to dissuade . The Browns allege that Wilson, Sheriff Tackitt, and Dr. Tull never attempted to protect the Browns' constitutional rights or to dissuade Cicherski from proceeding with the mass trespass despite their knowledge of the planned media event. ¶ 60. First, the Browns have not alleged that Dr. Tull, a state officer, exercised any authority or control over Cicherski, a Wilson County official, that could stop him from conducting the seizure. Second, they have pointed to no authority that established a constitutional duty on the part of Wilson and Sheriff Tackitt (or Dr. Tull for that matter) to suddenly exhibit a change of heart and attempt to discourage Cicherski from going ahead with the raid. See Hart, 127 F.3d at 450. These claims will be dismissed.
3. Missing dogs . The Browns allege that the activists removed their animals at the direction of the Deputies, but that 12 of their dogs were never returned. The magistrate judge recommended dismissal of this claim because there was no allegation that the seizure of the dogs exceeded the scope of the warrants. Further, the magistrate judge found there is no due process violation because the Browns have a meaningful post-deprivation remedy in the Texas tort of conversion. The Fourth Amendment, however, requires that all searches be reasonable, and that the manner of the warrant's execution must be objectively reasonable. The Browns allege that the Deputies and other Wilson County officials failed to supervise the animals' removal, failed to keep track of which animals were removed from which pens, which animals were removed from the property, who was removing the animals, where the animals were being taken, or even who was on the Browns' property. ¶¶ 86-88. The Browns have stated a § 1983 claim against the Deputies for the missing dogs. 4. Good-faith exception . The magistrate judge found that the Sheriff and Deputies were protected by the good-faith exception to the exclusionary rule. An officer may rely in good faith on the validity of a warrant so long as the warrant is supported by more than a "bare bones affidavit." United States v. Pofahl, 990 F.2d 1456, 1474 (5th Cir. 1993). As indicated already, the complaint can be fairly read as alleging that the December 30 affidavit, which was the only one that could have supported the January 2 warrants, was a bare-bones affidavit. Therefore, the Sheriff cannot rely on the good-faith exception. The Browns raise no similar allegations regarding the Deputies, and they are entitled to qualified immunity based on the good-faith exception.
The Browns have not alleged that Sheriff Tackitt was present during the raid. Supervisory officials are not liable under § 1983 for the actions of subordinates on any theory of vicarious liability, and the doctrine of respondeat superior does not apply to such actions. Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). Generally, a supervisor may be held liable only if there exists either (1) his personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Id. The Browns do not allege that the Sheriff was personally involved in the removal of the animals or in the supervision of the persons involved in the raid, nor is there any causal connection alleged between the Sheriff's actions and the constitutional violation.
5. Participation of third parties in execution of the warrants . A large number of persons described as animal-rights activists helped plan and took part in the raid in addition to reporters from two local newspapers and reporters and camera crews from four local television stations. Wilson, Cicherski, Sheriff Tackitt, and Dr. Tull knew that the activists were conspiring with the television defendants to participate in the raid with the express intent to seize all the Browns' animals, including their valuable breeding stock, whether the animals were mistreated or not, in order to put the Browns out of business and to serve as a warning to other animal breeders. ¶¶ 44, 56-58, 60. The activists enlisted participation by the media so that the publicity generated by the raid would garner the activists sympathy and financial contributions for their causes. Id. These were obviously not legitimate law-enforcement purposes, and Wilson, Cicherski, Sheriff Tackitt, and Dr. Tull were on notice that the activists were there for reasons other than to simply assist the law-enforcement authorities seize and carry away the animals. By the morning of the raid, the Deputies assisted the activists and the media defendants in entering the Browns' property, and in seizing the animals. ¶¶ 78-80. The Deputies failed to properly supervise the persons involved in the raid, and made no attempt to control the hordes of activists and media representatives. ¶¶ 80-81. In addition, neither the activists nor the media were listed as participants on the warrants.
There were approximately 100 persons altogether who descended on the Browns' property including 75 animal-rights activists and journalists.
The magistrate judge found that officials do not violate the Fourth Amendment by using the services of a third party unless that party is present to conduct an independent search. See Buonocore v. Harris, 65 F.3d 347, 356 (4th Cir. 1995). Therefore, the magistrate judge reasoned, absent allegations that the official defendants knew or should have known the activists and the reporters would exceed the scope of the warrant by conducting their own search, they are entitled to qualified immunity. The official defendants, however, knew precisely that the activists and reporters were there in pursuit of their own agendas. The official defendants knew first that none of the activists or reporters were mentioned in the affidavits or the warrants. They also knew that the activists were motivated by their desire to confiscate all the Browns' animals, to put them out of business, and to obtain by way of the media coverage sympathy for their cause and financial contributions for their organizations. The official defendants knew the media were there searching for a story to increase their circulations and viewers, and ultimately to increase their revenues.
The issue then is whether clearly established law prohibited law-enforcement officials from bringing along on a search conducted on private property persons not named in the warrant who were there to further their own ends rather than to assist with the search, and, if so, whether it was objectively reasonable for the officials to believe that their actions did not violate clearly established law as it existed at the time of the search.
a. Clearly established law . For the legal rules to be considered clearly established, the contours of the right alleged to have been violated "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 (1987). The inquiry ends if from an examination of Supreme Court and Fifth Circuit precedent it may be determined that a legal principle is clearly established. Brady v. Fort Bend County, 58 F.3d 173, 175-76 (5th Cir. 1995); Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir. 1993). In the present case, no such precedent exists, but that does not end the inquiry. In order to preclude qualified immunity, it is not necessary that "the very action in question has previously been held unlawful, . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.
"The paucity of similar factual scenarios that have found their way into published legal opinions may be attributable to law officers acting in a more responsible and professional manner than [the police officer] acted on this occasion. Or in those instances where similar abuses took place, perhaps the victims either were without the resources to call the officer's hand or chose to avoid further involvement with a justice system so lacking in common sense and reasonableness." Atwater v. City of Lago Vista, 165 F.3d 380, 384 (5th Cir. 1999).
The Fourth Amendment, applicable to the states by virtue of the Fourteenth Amendment, provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The Supreme Court and the Fifth Circuit have repeatedly emphasized that the principal object of the Fourth Amendment is to restrain government intrusions into the private lives and homes of individual citizens. See Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379 (1980) ( Fourth Amendment's principles apply to all government invasions of the sanctity of one's home and the privacies of life); United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134 (1972) (physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed); Silverman v. United States 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961) ("at the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."); Boyd v. United States, 116 U.S. 616, 626-27 (1886) (purpose of the Fourth Amendment is to prevent arbitrary government intrusion into the home); Atwater v. City of Lago Vista, 165 F.3d 380, 389 (5th Cir. 1999) ("the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials. . . ." (quoting United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975))).
Such concepts did not, of course, originate with the Fourth Amendment, but are deeply rooted in the common law. The Browns have an absolute right, as old as the common law, to keep all strangers out of their home and property who are not privileged to be there. In Semayne's Case, 77 Eng. Rep. 194 (K.B. 1604), the King's Bench resolved that "the house of every one is to him as his castle and fortress" id. at 195, and prohibited the government from forcibly entering a home at the behest of a private party, id. at 198. William Pitt elaborated upon the sanctity of the home in his impassioned defense of private homeowners against discretionary government searches before Parliament in 1766.
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!Payton, 445 U.S. at 601 n. 54, 100 S.Ct. at 1388 n. 54. The Supreme Court expressed "no doubt that Pitt's address . . . echoed and re-echoed throughout the Colonies. . . ." Id.
As a general rule, law enforcement may only intrude on private property with a search warrant issued by a neutral magistrate based on probable cause, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369 (1948), or under a specific exception to the warrant requirement,Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2046 (1971). The primary reason for the warrant requirement is to interpose a "neutral and detached magistrate" between the citizen and "the officer engaged in the often competitive enterprise of ferreting out crime."Johnson, 333 U.S. at 14, 68 S.Ct. at 369.
It has long been clearly established that there is a constitutional right to be free from unreasonable searches and seizures. U.S. CONST. amend. IV; New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985); Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those that are unreasonable." Florida v. Jimeno, 500 U.S. 248, 259 (1991) (citing Illinois v. Rodriguez 497 U.S. 177 (1990)). It is further settled that the Fourth Amendment's protections against arbitrary searches and seizures are presumptively applicable not only in an individual's home, but also in any commercial premises he or she may own or use. United States v. Blocker, 104 F.3d 720, 726 (5th Cir. 1997). "The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967).
A search is permissible in its scope, and therefore reasonable, when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive. T.L.O., 469 U.S. at 342, 105 S.Ct. at 743; Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11 (1976). Officers, in conducting a search, must limit themselves to actions for which the warrant clearly provides, see e.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394 n. 7, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (the Fourth Amendment strictly confines an officer executing a search warrant to the limits set by the warrant), or that the warrant implicitly authorizes because they are necessary to its execution, see e.g., Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595 (1981) (warrant to search for contraband implicitly provides limited authority for detaining occupants during the search) and United States v. Fortenberry, 860 F.2d 628, 636 (5th Cir. 1988) (evidence "not described in a search warrant may be seized if it is "reasonably related to the offense which formed the basis for the search warrant").
Reasonableness depends on how a search is carried out. Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699 (1985). The question is "whether the totality of the circumstances justified a particular sort of search or seizure." Id. at 8-9, 105 S.Ct. at 1700. In determining the reasonableness of the scope of the search, the "nature and quality of the intrusion" is balanced against "the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642 (1983).
The search in this case was unreasonable, and therefore violated the Fourth Amendment, for at least three reasons: persons accompanied the officials who (1) were not named in the warrants (or in the supporting affidavits), (2) were not performing legitimate law-enforcement functions, and (3) were there in pursuit of their own private objectives, which were not law-enforcement objectives.
Inviting persons to participate in a search and seizure who are not named in the warrant or mentioned in the supporting affidavit is unreasonable unless their presence is reasonably necessary to accomplish the purposes of the search. Swate v. Taylor, 12 F. Supp.2d 591, 595 (S.D. Tex. 1998). Texas law permits a officer to obtain assistance in the execution of a warrant from citizens "bound to aid in the execution of the same." See e.g., United States v. Clouston, 623 F.2d 485, 486-87 (6th Cir. 1980) (telephone company employees' role was limited to aiding the officers authorized to conduct a search for electronic equipment by identifying property of their employer); United States v. Schwimmer, 692 F. Supp. 119, 126-27 (E.D. N.Y. 1988) (a private computer expert was authorized by the search warrant to locate computer files). To come within the scope of the statute, therefore, a person who is not authorized by the warrant to search must be there to aid the authorized officer in the execution of the warrant. That is, the third person's participation must be designed to advance the specific purpose that justified the intrusion in the first place. Otherwise, they are not "bound to aid in the execution of the [warrant.]"
"In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same." TEX. CODE CRIM. PROC. ANN. art. 18.08 (Vernon 1977). Cf. 18 U.S.C. § 3105 (1994) (allowing unauthorized persons to attend execution of warrant when providing aid to the officer, at the officer's request, and in the officer's presence).
According to the Model Rules for Law Enforcement Officers, a 1974 publication prepared by the Texas Criminal Justice Council, civilian participation in the execution of a warrant was prohibited unless absolutely necessary:
No persons other than peace officers, police legal advisors, and members of the district attorney's office shall be permitted to accompany officers in the execution of the warrant, unless absolutely necessary.
TEXAS CRIMINAL JUSTICE COUNCIL, MODEL RULES FOR LAW ENFORCEMENT OFFICERS: A MANUAL ON POLICE DISCRETION § 4.02 (1974). The comment to this section provided: "Section 4.02 prohibits non-police personnel, such as press and media representatives from accompanying officers." Id. at 257. The comment further adds that "technical experts," such as a locksmith, "have a legitimate reason to go along." Id. at 258.
A search is also unreasonable when persons accompanying the officers are engaged in a mission distinct from that of the proper and lawful execution of the warrant. Here, the activists were on the Browns' property to put them out of business, to confiscate their animals, and to obtain publicity, sympathy, and contributions. The media were there to furnish publicity to the activists and to obtain stories to increase their readership and viewership. These motivations were known by the official defendants. As already indicated, it has been established in the common law at least since 1604 that "[e]ven a duly authorized officer could not execute a warrant to further the purposes of a private individual." Buonocore, 65 F.3d at 354 (citing Semayne's Case, 77 Eng. Rep. 194 (K.B.1604); Burdett v. Abbott, 104 Eng. Rep. 501, 560-61 (K.B.1811)).
Thus, the law was clearly established when the search occurred in January 1997 that the Fourth Amendment prohibits government agents from allowing a search warrant to be used to facilitate the invasion of the home and privacy of another for purposes unrelated to those specified in the warrant by third persons not authorized by the warrant to be there, not serving any legitimate law-enforcement purpose in being there, and, on the contrary, who were there in pursuit of their own selfish purposes. Swate, 12 F. Supp.2d at 595. This unlawfulness is apparent in light of pre-existing Fourth Amendment law; no case involving these particular facts is necessary to establish that unlawfulness. "Clearly established" includes not only specifically adjudicated rights but those manifestly included within more general applications of the core constitutional principles invoked. Here the core Fourth Amendment principles, recognized in innumerable cases by the Supreme Court and the Fifth Circuit include privacy, the sanctity of the home, and the requirement that searches must be reasonable. b. Objective reasonableness . It might be argued that the activists and reporters could have assisted (and some probably did) the relatively few law-enforcement officials present to remove the large number of animals. But this misses the point. If more hands were needed to accomplish the physical labor required to execute the present warrants, the responsible officials should have explained this to the officer issuing the warrant, and the latter officer should have identified the persons accompanying the officers in the warrant itself. Further, if additional help was needed to remove the animals, why bring along a mob of people with a vendetta against the Browns? The responsible officials should instead have obtained the necessary assistance from other law-enforcement officers, or, failing that, they should have at the very least recruited citizens — identified in the affidavits and warrants — who harbored no evil designs against the Browns and their business. Therefore, if it was reasonable for the officials to obtain assistance, it was unreasonable to obtain this assistance.
See e.g., Creamer v. Porter, 754 F.2d 1311, 1317-18 (5th Cir. 1985) (few cases have dealt with searches that exceed the permissible scope of a warrant where items are unambiguously identified because the Fourth Amendment clearly proscribes such excesses).
"It is familiar history that indiscriminate searches and seizures conducted under the authority of `general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment."Payton, 445 U.S. at 583, 100 S.Ct. at 1378. Early in our history James Otis remonstrated against general warrants, in part because they were not directed solely at authorized officers acting on behalf of the government but could be executed at the request of anyone, and because they constituted an improper invasion of a person's cherished right to privacy, particularly in his own home. Writing for the Court in Stanford v. Texas, 379 U.S. 476, 481-82, 85 S.Ct. 506, 510 (1965), Justice Stewart explained:
Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,' said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'" Boyd v. United States, 116 U.S. 616, 625 [ 6 S.Ct. 524, 530 (1886)].See also Swate, 12 F. Supp.2d at 593-94 (discussion of writs of assistance).
The video and sound recordings made by the media were likewise unnecessary to the purposes of the search. If they were necessary, the fact that sounds and images would be recorded should have been mentioned in the affidavits and warrants, and the executing officers should have brought their own cameras and tape recorders rather than bringing in members of the independent news media, unsupervised by the officers, to record the sounds and images for them. Having the press, as opposed to the officers, record the sounds and images intensifies the privacy invasion with no corresponding gain in advancing a law-enforcement purpose.
The official defendants knew the activists and reporters were not identified or mentioned in the warrants. They knew the activists were there to put the Browns out of business and to generate publicity (and contributions) for their cause. They knew the media were not brought on the Browns' property to serve purposes related to the execution of the warrant; rather, they were engaged in an entirely different search — a search for anything dramatic or entertaining that might make a good news story. All were there acting independently and in furtherance of their own motives. None were there to aid the officers in the actual execution of the warrant, except insofar as that execution actually aided the activists in their purpose of putting the Browns out of business by confiscating their animals, including their valuable breeding stock. If such a spectacle can be justified after the fact by arguing that the third persons were only there to help, the carefully limited scope of a warrant becomes meaningless in the face of an officer's (or a court's!) post-hoc speculation that some amorphous law-enforcement purpose was served by the presence of the third parties. If this is the law, there are no limits to the unnamed multitudes who may accompany an officer in the execution of a warrant for their own purposes; it opens the doors of every home and business in this country to invasion by hordes of one's enemies, all of which may be reported and filmed by the media for display to the world.
The officers could as easily justify bringing anyone and everyone along on the search — a business person's competitors, the suspect's neighbors, a high-school civics class, or any passerby — all to be recorded and reported by the media.
The resulting tyranny if warrants could issue at the behest of and be executed by private citizens was vividly described by James Otis in his attack on writs of assistance in Lechmere's Case:
What a scene does this open! Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood.Buonocore, 65 F.3d at 355 (emphasis deleted) (quoting 2 Legal Papers of John Adams at 134-44).
The official defendants knew full well that the activists and reporters served no legitimate law-enforcement purpose. Nothing in the circumstances of the search plausibly required a reasonable, responsible officer to bring private third parties onto the Browns' property and into their home who were there only to exploit the warrants for their own purposes. Swate, 12 F. Supp.2d at 596. No reasonable official could have thought otherwise.
In fact, the presence of the activists and the media on the Browns' property was nothing less than state-supported trespass and invasion of privacy. The Browns did not consent to their presence (¶ 38) and these people could not have entered their property without that consent. They did just that, however, when they accompanied the officers onto the Browns' property and into their home. The Fourth Amendment was designed to limit just such abuses of government power.
No objectively reasonable law-enforcement officer could have believed that allowing participation by a horde of activists intent on pursuing their own private political and financial agendas would comport with the Fourth Amendment. No objectively reasonable law-enforcement officer could have believed that permitting the invasion of the Browns' privacy to be reported and filmed for later distribution to the world solely for the profit of the media organizations involved would comport with the Fourth Amendment. No objectively reasonable law-enforcement officer could have concluded that inviting any third party to participate in a search and seizure who was not named in the warrant and who was not aiding in the execution of the warrant accorded with Fourth Amendment requirements.
The contours of the Browns' rights were sufficiently clear that a reasonable official in defendants' position would have understood that what they were doing violated those rights. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. The purpose of the Amendment and the decisions of the Supreme Court and Fifth Circuit implementing its original intention have been to restrain government conduct and limit its intrusiveness, not to authorize unlimited and uncontrolled access to private residences and businesses.
The official defendants' motions to dismiss the Browns' § 1983 claims based on the participation in the raid of the activists and media is DENIED.
B. State-law claims .
The Browns complain that "[w]ithout discussion or explanation, the Memorandum erroneously dismisses the Browns' state law claims" against Wilson and Tull. They also object to the dismissal of "any claims" against Cicherski. The magistrate judge apparently decided that the official defendants were immunized from these claims by the doctrine of official immunity. If that were the case, however, the magistrate judge should have reviewed each of the Browns' state-laws claims and explained in each case whether the official's actions were objectively reasonable. Because there has been no recommendation on these state-law claims, the Court will consider them as pending, and dismissal of those claims will not be granted.
C. Objection of Massey, Massey, and HCGA (Doc. 753) .
Defendants Ray Massey, Patricia Massey, and Hill Country Greyhound Adoption, Inc. ("HCGA") filed an objection to the recommendations concerning the official defendants except for Dr. Tull (Doc. 739, 740, and 741) based on the magistrate judge's implied finding that the Browns "have alleged facts which if proven would establish a constitutionally protected right to privacy in the areas not described in the search warrants."
First, those recommendations do not address any motion filed by the movants, nor do they adversely affect them. Consequently, the movants lack standing to object. Second, the magistrate judge did not address in detail in those recommendations what part of the Browns' property was curtelage and what part open fields. Nor are such findings required; the only issue is whether the Browns have stated a claim. Therefore, the objection (Doc. 753) is STRUCK.
II. Private Defendants .
The private defendants filing motions to dismiss are Tracy Frank, John Helton, Southern Animal Rescue Association, Inc. ("SARA"), Ray Massey, Patricia Massey, and HCGA, all identified as among the animal-fights activists. Also among the private defendants are Dr. Wayne R. Deason, a licensed veterinarian, and Deason Animal Hospital, Inc.
There are no objections to the magistrate judge's findings (1) that Frank, Helton, and SARA should be denied charitable organization immunity; (2) that proof of the Browns' allegations could establish that the Masseys and HCGA were acting under color of law, (3) that the motion to dismiss the § 1983 claims against the Masseys should be denied. The recommendations will be ACCEPTED.
A. Vicarious liability .
The magistrate judge recommended the Browns' § 1983 claims against the three corporate defendants be dismissed because there are no allegations against those defendants apart from the actions of the individual private defendants associated with the corporations. The magistrate judge concluded that the claims against the corporate defendants are necessarily based on vicarious liability or respondeat superior, and found that a private corporation cannot be vicariously liable under § 1983 for its employees' deprivations of others' civil rights.
A defendant cannot be held liable under § 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018 (1978). Monell involved a municipal corporation, but every circuit to consider the issue has extended the holding to private corporations as well. See Street v. Corrections Corp. of Am., 102 F.3d 810, 817-18 (6th Cir. 1996) (private detention facility); Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992) (private mental hospital); Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir. 1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982) (security guard employer).
The Fifth Circuit has indicated that a corporation can be liable under § 1983 if there is a showing of official sanction or "imprimatur" of the conduct or practice at issue. Auster Oil Gas, Inc. v. Stream, 835 F.2d 597, 602 n. 3 (5th Cir. 1988). No such allegations have been made by the Browns. Therefore, the Court accepts the magistrate judge's recommendation and GRANTS the motions to dismiss the Browns' § 1983 claims against the corporate defendants SARA, HCGA, and Deason Animal Hospital, Inc.
The magistrate judge points out that under Texas law there is no prohibition against imposing vicarious liability on a private corporation if the employees were acting within the scope of their employment, and he recommended that the Browns' state-law claims against the corporate defendants not be dismissed. There are no objections to this recommendation, and finding it neither clearly erroneous or contrary to law, the Court ACCEPTS it.
B. § 1983 claims against Dr. Deason and state-law claims against Dr. Deason and Deason Animal Hospital .
The Browns' claims against Dr. Deason involve two allegations. First, during the raid, Dr. Deason identified eight dogs allegedly in poor health and, although there was no evidence these dogs had been cruelly treated, "eight animals were wrongfully seized." ¶ 85. Second, Dr. Deason intentionally killed "Browns' Suzannah," one of the eight dogs seized. ¶ 89. The seven remaining dogs were returned to the Browns eight days later. ¶ 92.
The magistrate judge recommended that the claims against Dr. Deason, a licensed veterinarian who assisted Wilson County during the raid by providing veterinary advice, be dismissed by virtue of statutory "veterinarian's immunity." This statutory grant of immunity, however, provides neither absolute immunity nor immunity from suit. Article 8891 applies a presumption that the euthanasia of "Browns' Suzannah" was reasonable, but presumptions may be rebutted by evidence to the contrary. While Dr. Deason may assert article 8891 as a defense, it does not shield him from the Browns' claims at the 12(b)(6) stage.
A veterinarian who, on his own initiative or at the request of a person other than the owner, renders emergency treatment to an ill or injured animal is not liable to the owner for damages to the animal except in cases of gross negligence. If the veterinarian performs euthanasia on the animal, it is presumed that it was a humane act necessary to relieve pain and suffering.
TEX. REV. CIV. STAT. ANN. art. 8891 § 2.
There are two essential elements to a Section 1983 action: (1) the conduct in question must be committed by a person acting under color of state law; and (2) the conduct must deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Resident Council of Allen Parkway Village v. United States Dep't of Housing and Urban Dev., 980 F.2d 1043, 1050 (5th Cir. 1993), cert. denied, 510 U.S. 820(1993). The Browns' allegations meet the first requirement; Dr. Deason acted under color of law by acting in concert with Wilson County officials. The Browns further argue that the "killing" of "Browns' Suzannah" violated the Fourth Amendment. The Fourth Amendment protects property as well as privacy. Soldal v. Cook County, Illinois, 506 U.S. 56, 62, 113 S.Ct. 538, 544(1992). A seizure of property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Id. at 61, 113 S.Ct. at 543. A seizure of property only violates the Fourth Amendment if it is unreasonable. Id. at 71, 113 S.Ct. at 549 ("`reasonableness is still the ultimate standard' under the Fourth Amendment") (citation omitted). The analysis must be based upon a "careful balancing of governmental and private interests." Id. (quoting T.L.O., 469 U.S. at 341, 105 S.Ct. at 742.). The Court then articulated a substantial barrier to a finding of unreasonableness when the officers seizing property are acting pursuant to a court order: "Assuming for example that the officers were acting pursuant to a court order,. . . a showing of unreasonableness on these facts would be a laborious task indeed." Id. (citations omitted). The dogs in this case were removed in accordance with the warrants. The Browns have not stated a claim against Dr. Deason on which relief can be granted with respect to the seizure of the eight dogs. Dr. Deason's killing of the Browns' pet later on the day of the raid does state a claim under § 1983. Dr. Deason obtained possession and control of the dog while acting under color of law, and the killing of the dog was not pursuant to the warrant and did constitute the ultimate "meaningful interference" with the Browns' possessory right to the dog. Further, the Browns have alleged that there was no evidence the dog had been cruelly treated or starved (¶ 85), so that the dog's death was unreasonable.
The magistrate judge did not address the Browns' state-law claims against Dr. Deason. Dismissal of any state-law claims is therefore DENIED.
C. State-law claims against the Masseys and HCGA .
The magistrate judge addressed the several state-law claims brought against the Masseys and HCGA. He recommended that the motion to dismiss the § 1983 claims against the Masseys, and the abuse of process, negligence, trespass, invasion of privacy, tortious interference with prospective business relationships, and civil conspiracy claims against the Masseys and HCGA be denied. There are no objections to these recommendations, and they are neither clearly erroneous nor contrary to law. They are ACCEPTED. The magistrate judge, however, recommended granting the motion to dismiss the Browns' claims of conversion, and intentional infliction of emotional distress, and denying their attempt to hold the Masseys to a higher standard of care based on their specialized training in animal cruelty investigations and rescues.
1. Conversion . Two alleged conversions are at issue here — the conversion of 12 stolen dogs, and the conversion of the Browns' images by the videotaping done by the activists. The magistrate judge concluded that since removal of the dogs was pursuant to the warrant, it was not inconsistent with the Browns' rights. Even if the initial removal was pursuant to the warrant, keeping the dogs after they were required to be returned was not pursuant to law. A seizure warrant is not a license to steal. The Browns do not know who stole their dogs. If all defendants are relieved of liability because the dogs were initially removed under color of the warrant, the Browns will be left with an empty remedy. While they must eventually prove who stole the dogs, it is premature to dismiss their conversion claim until they have had a chance to offer their evidence.
These twelve dogs are different than the eight dogs discussed above in relation to the claims against Dr. Deason. Seven of the eight dogs were returned, the exception being "Browns' Suzannah." ¶¶ 88, 92. The 12 dogs that are the subject of the conversion claim have never been returned. ¶ 88.
The Browns have offered no authority in support of the notion that videotaping of their images done by the activists is a "conversion" of their images. Therefore, any conversion theory based on the videotaping is groundless.
2. Intentional infliction of emotional distress . In order to recover at trial on their state-law claim of intentional infliction of emotional distress, the Browns would have to prove that defendants (1) acted intentionally or recklessly (2) in an extreme and outrageous manner (3) that caused them to suffer emotional distress (4) that was severe. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 195 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 682 (1997); Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Conduct is "outrageous" for purposes of an intentional infliction of emotional distress claim only if it surpasses all possible bounds of decency, such that it is utterly intolerable in a civilized community. Weller, 84 F.3d at 195. Whether a defendant's conduct is extreme or outrageous enough to permit recovery is a matter within the province of the court. Atkinson v. Denton Publishing Co., 84 F.3d 144, 151 (5th Cir. 1996).
The magistrate judge determined that only the conduct of the activists that exceeded the scope of the warrant could be the basis for the intentional infliction of emotional distress claims, and that that conduct consisted only of their searching areas of the Browns' property not covered by the warrant and videotaping portions of the raid. The Court agrees that such conduct will not support an intentional infliction of emotional distress claim. The Browns also alleged, however, that the activists initiated and planned the raid, obtained the cooperation of the media, gathered nearly 100 persons (including many animal activists with a vendetta against dog breeders such as the Browns, two newspaper reporters, and four television news crews), descended upon the Browns' property, invaded their privacy, videotaped them in their vulnerable state, and removed all their animals without regard to whether the animals had been mistreated. The Court cannot say that such actions, which amounted to a flagrant attack on the Browns' Fourth Amendment rights by a mob of vigilantes accompanied by journalists and camera crews, do not surpass all possible bounds of decency or that they should be tolerated in a civilized society. The motions to dismiss the Browns' intentional infliction of emotional distress claims are DENIED.
3. Higher standard of care . Of the private defendants at issue in the recommendations before the Court, the Browns' allege only Ray Massey held himself out as possessing expertise in animal-cruelty investigations and rescues. Therefore, there is no basis to hold Patricia Massey to a higher standard of care. The magistrate judge found that the expertise possessed by Ray Massey had no bearing on the actions identified by him as serving as a basis for tort liability, namely, videotaping and straying from the areas where the animals to be seized were kept. The complaint can fairly be read, however, as alleging that the raid would never have occurred if activists such as Ray Massey had not conceived it as a rescue of mistreated animals. Further, Ray Massey lent his expertise to determining the scope of the warrants, and although he advised that only mistreated animals be removed, he was present and participated in a raid that far exceeded the scope he knew to be proper. Therefore, Ray Massey's expertise is directly related to the negligence allegations.
III. Media Defendants
The media defendants who have filed motions to dismiss are Wilson County News; Hearst Corporation, d/b/a San Antonio Express-News; UTV of San Antonio, Inc., d/b/a KMOL-TV ("KMOL"); Chesapeake Television, Inc., d/b/a KABB-TV ("KABB"); and Post-Newsweek Stations, San Antonio, Inc., d/b/a KSAT-TV ("KSAT").
A. § 1983 claims .
1. Vicarious liability . For the reasons set forth in the discussion of vicarious liability above, the Court ACCEPTS the magistrate judge's recommendation that the Browns' § 1983 claims against the corporate media defendants be dismissed. The motion to dismiss the state-law claims against the corporate defendants on the ground of vicarious liability is DENIED because under state law there is no prohibition against imposing vicarious liability against a private corporation.
2. Color of law . The magistrate judge correctly found that the complaint alleges facts showing the media defendants' reporters and employees acted under color of law by willful participation with state actors.
B. State-law claims .
The magistrate judge recommended that defendants' motions to dismiss the state-law claims discussed below be granted. The Browns object to those recommendations. The magistrate judge also recommended that the motions to dismiss the remaining state-law claims be denied. As there is no objection to these latter recommendations, the Court has reviewed them under the clearly-erroneous-or-contrary-to-law standard, and ACCEPTS those recommendations. Therefore, the newspaper defendants' motions to dismiss the claims of trespass and civil conspiracy are DENIED. The television defendants' motions to dismiss the claims of trespass, invasion of privacy, and civil conspiracy are DENIED. KSAT's motion for more definite statement is DENIED.
1. Abuse of process . Three elements establish the tort of abuse of process: (1) the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) damage to the plaintiff as a result of such illegal act. RRR Farms, Ltd. v. American Horse Protection Ass'n, 957 S.W.2d 121, 133 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). The magistrate judge concluded that the media defendants' reporters played no role in obtaining the warrants, and did not participate in executing the warrants. Rather, they engaged only in news gathering activities while on the Browns' property. Therefore, the magistrate judge concluded, the Browns have not pleaded an abuse of process claim.
The Browns alleged, however, that the media defendants used the warrants to gain entry to their property (¶¶ 34, 80); that they wandered through the Browns' property and house and areas beyond where the dogs were kept, accosted the Browns for statements, eavesdropped on private conversations, interviewed other raid participants, and photographed and videotaped the raid and the Browns (¶¶ 36-38, 82); and that they served no legitimate law-enforcement purpose for being there (¶ 83). The Court finds the Browns have adequately pleaded a cause of action for abuse of process and the motions to dismiss these claims are DENIED.
2. Intentional infliction of emotional distress . Again, the magistrate judge found that only conduct of the reporters that exceeded the scope of the warrants — that is, wandering into areas not covered by the warrant — can form a basis for the Browns' intentional infliction of emotional distress claims. The Court agrees that such conduct alone does not amount to intentional infliction of emotional distress. The Browns also alleged, however, that the activists conspired with the television defendants and obtained their cooperation to broadcast the raid. ¶¶ 50, 56, 66. The television defendants eagerly joined the plan, and although the newspaper defendants had not been contacted in advance, they too chose to join the throng upon learning of the plan the morning of the raid. ¶ 66. The raid was organized as a media event to entice Wilson County officials to issue the warrant, and without the participation of the television defendants, no warrant would have issued. ¶ 59. While on the property, the media defendants' employees wandered through the Browns' property and house and areas beyond where the dogs were kept, accosted the Browns for statements, eavesdropped on private conversations, interviewed other raid participants, and photographed and videotaped the raid and the Browns. ¶¶ 36-38, 82. The journalists served no legitimate law-enforcement purpose in being there. ¶ 83. Further, by their reports and broadcasts of the raid, they multiplied the invasion of the Browns' privacy and the violation of their Fourth Amendment rights.
In addressing the television defendants' motions to dismiss, the magistrate judge also addressed society's interest in protecting freedom of the press. Under Texas law, the publication of truthful, albeit embarrassing, information is not extreme and outrageous conduct. Mayes v. LIN Television of Tex., Inc., No. 3:96-CV-0396-X, 1998 WL 665088 at *5 (N.D. Tex. Sept. 22, 1998). As detailed in the preceding paragraph, however, the Browns complain of much more than the mere reporting of the events of the raid. The motions to dismiss the intentional infliction of emotional distress claims against the media defendants are DENIED.
3. Tortious interference with prospective business relationships . The elements of tortious interference with prospective contract or business relationships are: (1) a reasonable probability that the parties would have entered into a contractual relationship, (2) an intentional and malicious act by the defendant that prevented the relationship from occurring, with the purpose of harming the plaintiff, (3) the defendant lacked privilege or justification to do the act, and (4) actual harm or damage resulted from the defendant's interference. Thrift v. Hubbard, 44 F.3d 348, 356-57 (5th Cir. 1995). Malice in this connection is not to be understood in its ordinary sense of ill will against a person, but in its legal sense as characterizing an unlawful act done intentionally without just cause or excuse. Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.-Corpus Christi 1991, writ denied); State Nat'l Bank v. Farah Mfg. Co., 678 S.W.2d 661, 688-689 (Tex.App.-El Paso 1984, writ dism'd by agr.).
There are two aspects to these claims. First, the Browns allege the raid disrupted their breeding of pure-bred dogs and cats such that sales of these animals will be dramatically decreased. In his discussion of the television defendants' motions to dismiss, the magistrate judge found that this is a sufficient allegation of a loss of potential sales. In his discussion of the newspaper defendants' motions to dismiss, however, the magistrate judge went on to say that because the Browns do not allege that the newspaper reporters assisted in the seizure of the animals, they have failed to allege that those defendants caused any injury to the Browns' prospective business relationships. Further, the Browns did not allege that the newspaper defendants were in on the plot with the activists and the television defendants. Rather, the newspaper defendants only learned of the plan the morning of the raid and chose to join at that point. ¶ 66. Nor is there any indication of malice on the part of the newspaper defendants. The Browns' tortious interference claim against the newspaper defendants is DISMISSED.
Second, the Browns complain that the television defendants' broadcasts were inflammatory, but the magistrate judge found that this statement is conclusory, and the Browns do not allege that the reporting was inaccurate or was made with the purpose of harming the Browns. Yet the Browns allege more than the mere reporting interfered with their business relationships. They allege that the television defendants conspired with the activists to bring about the raid and that the activists' purpose was to seize the Browns' animals in order to put them out of business. ¶¶ 43, 44, 50. While the complaint is not altogether clear that the television defendants' purpose in joining the plan was to put the Browns out of business, construing the complaint in the Browns' favor and granting them the benefit of the reasonable inferences, the Court must conclude that they have alleged a cause of action against the television defendants for tortious interference with their prospective business relationships. The motions to dismiss the Browns' tortious interference claims against the television defendants are DENIED.
4. Negligence . The magistrate judge decided that the Browns could not maintain their negligence claims because they only raised the conclusory allegation that the reporters assumed a duty to the Browns by their affirmative course of conduct. ¶ 131. Without a duty, there can be no negligence. The Browns have clearly and specifically alleged that the media defendants were active participants in the mob that invaded their privacy. See ¶¶ 33-34, 36-38, 66, 79-80, 82. Having chosen to do so, the media defendants assumed a duty of care toward the Browns. A general allegation of negligence is sufficient. Banco Continental v. Curtiss Nat'l Bank, 406 F.2d 510, 514 (5th Cir. 1969); 5 C. WRIGHT A. MILLER, FEDERAL PRACTICE PROCEDURE, § 1249 at 318 (1990). The motions to dismiss the Browns' negligence claims against the media defendants are DENIED.
5. Conversion . The magistrate judge recommended that the Browns' conversion claims against the television defendants be granted. For the reasons set forth in the discussion of the conversion claims against the private defendants, any conversion theory based on the videotaping is DISMISSED, and the motions to dismiss the Browns' conversion claims based on the stolen dogs are DENIED.
6. Trespass, invasion of privacy, and civil conspiracy . The magistrate judge recommended that dismissal of these claims by the Browns against the television defendants be denied. The Browns agree with that recommendation, but object to some apparent conclusions by the magistrate judge. First, they object to the magistrate judge's apparent limitation of their trespass and invasion of privacy claims to only actions outside the scope of the warrant. The complaint alleges that the television defendants entered the Browns' property by the authorization of officials in charge of the raid. ¶ 80. Indeed, without the authorization of the Wilson County officials, they would never have entered the property at all; nor would anyone else. ¶ 38. Thus, their initial entry was under authorization of the officers in charge of the property, and their trespass occurred when they strayed from the areas authorized by the warrant. The Browns also argue that the mere presence of the television defendants on their property and in their home was an unwarranted invasion of their privacy. The Court does not read the magistrate judge's recommendations as being as limited as the Browns fear. The magistrate judge makes clear that such actions as eavesdropping on private conversations constituted an invasion of privacy. So do such actions as filming within the Browns' home (where presumably no animals to be seized were to be found).
Second, regarding the conspiracy claim, the Browns point out that each conspirator is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination, whether done before or after the conspirator entered the conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1979). They complain that in determining whether they had sufficiently pleaded facts to support their § 1983 and state-law claims, the magistrate judge should have examined the actions of the joint conspirators. We have already seen that the media defendants are not liable for the Browns' § 1983 claims based on a vicarious liability theory. The only state-law claim against the newspaper defendants that will be dismissed is the claim for tortious interference with prospective business relationships. The Browns have not alleged that newspaper defendants were part of any conspiracy; they merely showed up on the day of the raid and agreed to go along. The only state-law claim against the television defendants to be dismissed is that for conversion based on the videotaping. As the Browns have not shown any legal basis for this conversion theory, their conspiracy theory will not resurrect this claim.
Conclusion
Accordingly, it is ORDERED that the Memoranda and Recommendations are ACCEPTED in part and REJECTED in part as detailed above. It is further ORDERED:
Wilson's motion to dismiss (Doc. 689) is DENIED as to the Browns' § 1983 claims based on the procurement of the search warrants and the participation of the activists and media in the search, and as to their state-law claims. The motion is GRANTED as to the official capacity claims, the claim that Wilson provided false information, and the claim for "failure to dissuade."
The motion to dismiss filed by Sheriff Tackitt and Deputies Price and Ayala (Doc. 690) is GRANTED as to the official capacity claims, the claims based on the application for the December 30 warrant by Sheriff Tackitt, and the claim based on Sheriff Tackitt's "failure to dissuade." The motion to dismiss is DENIED as to the claims based on the participation of the activists and media, the claims based on the failure to return the 12 dogs, and as to the Browns' state-law claims.
Cicherski's motion to dismiss (Doc. 688) is GRANTED as to the official capacity claims, and DENIED as to all individual-capacity claims and state-law claims.
Dr. Catherine Tull's motion to dismiss (Doc. 696) is DENIED as to the Browns' § 1983 claims based on the procurement of the warrants and based on the participation of the activists and media. The motion is DENIED as to the Browns' state-law claims. The motion is GRANTED as to the official capacity claims and the claim for "failure to dissuade."
The motion to dismiss of Tracy Frank, John Helton and SARA (Doc. 684) is GRANTED as to the § 1983 claims against SARA, and DENIED in all other respects.
The motion to dismiss filed by the Masseys and HCGA (Doc. 706) is GRANTED as to the § 1983 claims against HCGA, and DENIED in all other respects.
The motion to dismiss filed by Dr. Deason and Deason Animal Hospital (Doc. 688) is GRANTED as to the § 1983 claim against Deason regarding seizure of the eight dogs and the § 1983 claims against the Animal Hospital, and DENIED as to the § 1983 claim against Dr. Deason regarding the death of "Browns' Suzannah," and the state-law claims against Dr. Deason and Deason Animal Hospital.
The newspaper defendants' motions to dismiss (Doc. 676 and 677) are GRANTED as to the § 1983 claims and the tortious interference with prospective business relationships claims. In all other respects, the motions are DENIED.
The television defendants' motions to dismiss (Doc. 673, 678, and 681) are GRANTED as to the § 1983 claims and the conversion claims based on the videotaping. The motions to dismiss the remainder of the state-law claims are DENIED. KSAT's motion for more definite statement is DENIED.
The objection filed by Massey, Massey, and HCGA (Doc. 753) is STRUCK.