Stewart v. City of Okla. City, Corp.

47 F.4th 1125

Patrick STEWART; Lorie Stewart, Plaintiffs - Appellants/Cross-AppzsDszellees,

v. CITY OF OKLAHOMA CITY, a municipal corporation; William J. Citty, in his individual capacity; Vance Allen, in his individual capacity, Defendants - Appellees.andRichard Mahoney, in his individual capacity, Defendant - Appellee/Cross-Appellant.

Nos. 20-6126 & 20-6137

United States Court of Appeals, Tenth Circuit.

FILED April 8, 2022

Carl Hughes, of Hughes & Hughes, Edmond, Oklahoma, for the Plaintiffs - Appellants/Cross-Appellees.

Richard N. Mann and Thomas Lee Tucker, Assistant Municipal Counselors (Kenneth Jordan, Municipal Counselor, Sherri R. Katz, Civil Litigation Division Chief, and Brett M. Logan, Assistant Municipal Counselor, with them on the brief), of the City of Oklahoma City, Oklahoma, for the Defendants - Appellees.

John J. Love (Margaret McMorrow-Love with him on the briefs), of The Love Law Firm, Oklahoma City, Oklahoma, for the Defendant - Appellee/Cross-Appellant.

Before TYMKOVICH, Chief Judge, LUCERO, Senior Circuit Judge, and MORITZ, Circuit Judge.

LUCERO, Senior Circuit Judge.

This case presents statutory and constitutional privacy issues arising from a domestic dispute involving an off-duty police officer. In June 2015, plaintiffs Patrick and Lorie Stewart ("the Stewarts") were involved in a verbal and physical altercation with Lorie's ex-husband. Audio and video recordings of that confrontation were used by defendants, Oklahoma City ("the City") and three municipal employees, in support of a disciplinary action against Patrick, a Major in the Oklahoma City Police Department ("OCPD"). The Stewarts subsequently brought this lawsuit, contending that defendants’ use of the recordings violated the Federal Wiretap Act ("FWA"), 18 U.S.C. § 2510 et seq. They also asserted claims under 42 U.S.C. § 1983 for infringements of their constitutional right to privacy. Summary judgment was granted to defendants on all claims. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

Specifically, we hold that the Stewart recordings did not violate the FWA as a matter of law, and therefore the statutory claims based on their use and disclosure necessarily fail. Moreover, we agree with the district court that the Stewarts have not shown a constitutional privacy violation sufficient to support their § 1983 claims.

I

A

Patrick and Lorie Stewart met and began a relationship in 2010. At that time, Lorie was married to Charles Samples, a retired Oklahoma state trooper. Lorie and Samples divorced in 2011, and Lorie and Patrick married a year later. The Stewarts contend that, in 2010, Samples sought retribution against Patrick by attempting to interfere with Patrick's employment with OCPD. This included unsuccessful efforts to convince defendant William Citty, the then-police chief, to take disciplinary action against Patrick for his relationship with Lorie.

On the evening of July 25, 2015, the Stewarts attended a party at a friend's house, where each consumed multiple alcoholic beverages. Lorie and Samples’ two children, who Lorie had custody of that night, remained at the Stewarts’ home. Around 11 p.m., Lorie contacted the children, who were nine and thirteen years old at the time, to inform them that she and Patrick were leaving the party. Instead, the Stewarts stayed at the party until approximately 1:30 a.m. When Lorie and Patrick did not return home promptly, the children unsuccessfully tried calling and texting them. Finally, Lorie's daughter called her father, Samples, who picked up the children around midnight and drove them to his house in nearby Norman, Oklahoma.

As they left the party, the Stewarts learned the children were with Samples and decided to drive to his house. Lorie, who was driving, called Samples, and the two spoke on the phone for eighteen minutes. Charles asked his wife, Becky Samples, to secretly record part of the call. He later told investigators he wanted to record the interactions that evening because he suspected the Stewarts had been drinking and he did not know what might occur once they arrived at the house, and also because he wanted evidence of the night's events in case Lorie accused him of interfering with her custody of the children. During the recorded portion of the phone conversation, Charles questioned Lorie's sobriety, told her not to come to his house, and offered to drive the kids back to the Stewarts’ that night. Patrick, who was riding with Lorie, could be heard in the background cursing at Charles.

Patrick and Lorie arrived at the Samples’ house at approximately 2:20 a.m. Lorie went up to the door while Patrick waited near the car. Charles again advised Becky to secretly record the interaction. Once outside, Charles and Lorie conversed briefly. Charles then began performing a field sobriety test on Lorie in the front yard. Upon seeing this, Patrick approached and told his wife to stop the sobriety test. Patrick and Charles then engaged in a profane verbal and physical altercation in the front yard and street. Becky video recorded the entire incident, initially hiding inside the home and later moving outside as the confrontation escalated. Becky also called 911, though the Stewarts departed before Norman police arrived. Patrick and Charles filed police reports. Criminal charges were not filed.

Patrick Stewart informed his OCPD supervisors of the altercation, which prompted an internal affairs ("IA") investigation. Charles and Becky Samples were interviewed as part of the investigation and shared the recordings from that night. These recordings were discussed in the subsequent IA report compiled by defendant Vance Allen, an OCPD Captain. The Stewarts claim the recordings were edited by Charles, though IA investigators found no evidence of tampering.

OCPD eventually sustained nineteen allegations of misconduct against Patrick for violating various department policies. The sustained allegations included: being intoxicated in public; allowing his wife to drive while intoxicated; and engaging in a profane verbal and physical confrontation. Patrick was demoted from Major to Captain and placed on a one-year disciplinary probation.

In response to his demotion, Patrick filed a grievance with the City, which triggered arbitration. Prior to the arbitration, Allen provided the IA investigative file—including the recordings made by the Samples—to defendant Richard Mahoney, the attorney representing the City during the hearings. The recordings were offered into evidence and referred to during the arbitration proceedings.¹

B

Following arbitration, the Stewarts filed this lawsuit. They asserted claims against all defendants for violating the FWA, which regulates and prohibits the willful interception, disclosure, and use of certain wire, oral, and electronic communications. 18 U.S.C. § 2510 et seq.² Specifically, the Stewarts alleged the Samples unlawfully recorded them, and therefore defendants violated the FWA when they used the supposedly illegal recordings during the IA investigation and arbitration hearing. The Stewarts also asserted § 1983 claims against the City and Chief Citty in his individual capacity for invasion of their constitutional right to privacy.

Defendants eventually filed motions for summary judgment, which the district court granted. On the FWA claims, the district court held that (1) the City could not be sued for violating the relevant substantive provisions of the statute, which apply only to "persons," and (2) the individual defendants were entitled to qualified immunity. In a footnote, the court rejected Mahoney's argument that he was entitled to absolute official immunity for his actions as the City's attorney at the arbitration hearing. With respect to the § 1983 claims, the court concluded the Stewarts had failed to introduce evidence showing a constitutional privacy violation.

The Stewarts appeal that ruling to us. Mahoney brings a conditional cross-appeal to challenge the district court's denial of official immunity.

II

We review the district court's grant of summary judgment de novo, drawing all reasonable factual inferences in the Stewarts’ favor. Throupe v. Univ. of Denver, 988 F.3d 1243, 1250 (10th Cir. 2021). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if a rational jury could find in favor of the nonmoving party on the evidence presented." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). "[T]he relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1179 (10th Cir. 2007) (quotation omitted). Furthermore, we may affirm a grant of summary judgment "on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result." Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

III

We begin with the Stewarts’ FWA claims. The Stewarts allege defendants violated various FWA provisions when they used and disclosed audio and video recordings of the June 2015 altercation during the IA investigation and subsequent arbitration hearing. See 18 U.S.C. §§ 2511(1)(c)-(d) ; 2515.³ These provisions share a common trait: they only prohibit the use of communications that were intercepted in violation of the FWA. Id.; see Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992) (to violate § 2511(1)(c)-(d), defendant must know or have reason to know the communications were obtained in violation of the statute); United States v. Davis, 780 F.2d 838, 846 (10th Cir. 1985) (no suppression required under § 2515 if the interception was lawful). As a threshold matter, then, the Stewarts’ FWA claims cannot succeed if the recordings in question were permissible under the F...