Appeal from the United States District Court for the Eastern District of Wisconsin. No. 85-C-42 - Terence T. Evans, Judge.
Before: WOOD, JR., and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
WOOD, JR., Circuit Judge. The plaintiffs, Daniel and Enuce LeClair, brought this Bivens suit for damages alleging that the defendants Lawrence Hart and Thomas Larson, both special agents of the Internal Revenue Service ("IRS"), violated their Fourth Amendment rights by making an unreasonable seizure of certain documents during the execution of a search warrant. The defendants moved for summary judgment on the defense of qualified immunity. The district court denied the motion, and the defendants immediately appealed the denial under the Supreme Court's recent holding in Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (denial of qualified immunity from suit is an immediately appealable final order). Under Mitchell, the only issue we may review at this time is "whether the legal norms allegedly violated by the defendants were clearly established at the time of the challenged actions." 105 S. Ct. at 2816. We affirm.
In Mitchell, the Supreme Court noted that "the appealable issue is a purely legal one: whether the facts alleged... support a claim of violation of clearly established law." 105 S. Ct. at 2816 n.9. Therefore, although the defendants dispute some of the LeClairs' factual allegations, for our purposes we need only summarize the LeClairs' version of the facts. See Mitchell, id. at 2816 ("[a]n appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts").
In fall of 1982, the LeClairs were among the subjects of two unrelated federal investigations. The Susie Q Fish Company, which the LeClairs owned, was one of the targets of a United States Fish and Wildlife Service ("F & WS") investigation into purported violations of fish and game laws. On November 8, 1982, F & WS special agent Richard Elliott obtained a warrant to search the LeClairs' residence for "documents evidencing the purchase, sale and catch of fish in 1981 and 1982."
In January of 1982, the Criminal Investigation Division of the IRS had started an investigation of the LeClairs for the tax years 1977 through 1980. Agent Lawrence Hart handled the investigation, which included an administrative summons requiring the Susie Q Fish Company to produce all of its corporate records from 1977 through 1981. Following an unsuccessful challenge by the LeClairs, the requested records were made available to Hart.
Hart learned of the impending F & WS search of the LeClairs' home and on November 9, 1982, Hart asked Elliott if Hart and another IRS agent, Thomas Larson, could accompany the F & WS team that searched the LeClairs' home. Elliott consented to the IRS agents joining the search team as observers, with the understanding that they would not be permitted to take an active part in the search and would in fact have no authorization to do any searching. prior to this contact with Hart and Larson on the eve of the search, Elliott had no idea that the IRS desired to participate in the search.
On November 10, 1982, F & WS special agent Edward Nichols and agents Gus Ernst and Tom Edwards of the Wisconsin Department of natural Resources were assigned to search the LeClairs' residence. At about 6:00 a.m. the three agents arrived at the LeClairs' home, accompanied by Hart and Larson in a separate car, Nichols, Ernst, and Edwards knocked on the door and were admitted by Mrs. LeClair. About five minutes later, Ernst brought Hart and Larson into the residence. Hart and Larson were not wearing badges and did not identify themselves to the LeClairs as IRS agents.
Hart, Larson, and Ernst spent most of the three-hour search with Mrs. LeClair in a basement room the LeClairs used as an office, while Nichols and Edwards remained upstairs with Mr. LeClair. Hart, Larson, and Ernst all took an active part in a thorough search of records, documents, and other items in the basement office. Mrs. LeClair received the impression that Hart was in charge of the search and that Ernst was assisting Hart. hart searched a greater area than any of the other agents.
During his search, Hart dictated verbatim into a tape recorder certain documents that he reviewed and considered important. Larson took copious handwritten notes. The tapes and notes were used by Hart to prepare a report to his IRS superiors, which listed items Hart felt were of interest to the IRS. The report and Larson's notes describe numerous financial records pertaining to the period 1977-1980. Hart dictated items not covered by the search warrant.
The LeClairs were indicted for income tax evasion and filed a motion to suppress the evidence seized at the November 10, 1982 search, claiming that IRS agents Hart and Larson had illegally seized evidence in the LeClairs' basement office by making handwritten and tape-recorded copies of the documents not included in the warrant. The presiding magistrate agreed that Hart and Larson had illegally seized the documents that were not within the scope of the warrant, but the motion to suppress was denied because the magistrate concluded that the IRS had not used any of the information obtained on November 10, 1982, to support the indictment against the LeClairs. Following the magistrate's decision, the LeClairs each pled guilty to criminal tax evasion.
On January 9, 1985, the LeClairs brought this suit for damages against Hart and Larson*fn1 pursuant to the Supreme Court's doctrine enunciated in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (creating a federal cause of action for damages based upon proof of injuries resulting from federal agents' violation of claimant's constitutional rights). The district court granted the defendants' motion for a protective order prohibiting the LeClairs from engaging in any discovery until the court resolved the question of whether the defendants had qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The defendants them moved for summary judgment on the grounds of qualified immunity from suit. The district court denied the motion with respect to Hart and Larson, ...