UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MILDRED MARIE WHITE; PATSY ANN
MCCOY; ROBERT CECIL BRINSON;
CLIFTON CONNER DEWITT; SAMUEL
NEWTON; WILLIAM CLEN MATTOCKS;
HAROLD MACK MCCOY; FRED DAVIS
DOBSON,
                                                                     No. 95-2177
Plaintiffs-Appellants,

v.

MICHAEL P. DOWNS; JAMES A.
CATHCART,
Defendant-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, Chief District Judge.
(CA-94-122-4-CV-F1)

Argued: January 27, 1997

Decided: April 30, 1997

Before RUSSELL and WILKINS, Circuit Judges, and
OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jeffrey Stephen Miller, Jacksonville, North Carolina, for
Appellants. Stephen Aubrey West, Assistant United States Attorney,
Raleigh, North Carolina, for Appellees. ON BRIEF: Janice McKen-
zie Cole, United States Attorney, Barbara D. Kocher, Assistant
United States Attorney, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case involves a set of claims brought by eight civilians against
two military officers affiliated with the Marine Corps Base at Camp
LeJeune, North Carolina, alleging violations of their constitutional
rights. Plaintiffs allege in their Bivens action that Michael P. Downs,
the Commanding General of Camp LeJeune, and James A. Cathcart,
Downs' Chief of Staff and second-in-command of Camp LeJeune,
violated their Fourth Amendment rights by authorizing an unconstitu-
tional search and seizure. The district court stayed discovery pending
a ruling on the dispositive motion and subsequently granted Defen-
dants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56.
For the reasons that follow, we affirm the decision of the district
court.

I.

At the time the alleged unconstitutional acts occurred, Plaintiffs
were civilians making their livings cutting hair at three barber shops
located on the base at Camp LeJeune. While waiting to get his haircut
on July 19, 1991, Chief Warrant Officer J. McCaslin, Officer in
Charge of the Criminal Investigation Division ("CID") of the military
base, observed two marines paying the head barber for their haircuts
at the cash register. Each haircut costs three dollars.1 The head barber
_________________________________________________________________
1 Head barbers receive a fifty-eight percent commission on haircuts and
a seventy-three percent commission on all other services. Line barbers
receive approximately five percent less in commissions than the head
barbers. The remainder goes to the federal government.

                    2
duly received three dollars from each marine but only recorded one
sale in the cash register. McCaslin then observed the head barber
pocketing the remaining three dollars.

In the wake of McCaslin's observance, CID contacted the Review
and Analysis Branch of the Department of Morale, Welfare, and Rec-
reation ("MWR"), whereupon it was discovered by the CID that
MWR had conducted unannounced "spot checks" of the various bar-
ber shops on the base. These random checks had revealed that "the
registers always contain[ed] more money than on the register receipt;
however, when the daily activity reports [were] turned in the number
on the register tapes and the amount of money turned in balance[d]."
(McKee Aff., J.A. at 48.) This led CID to conduct a"constant visual
surveillance" of three barber shops on the base. Over a period of four
days, August 5, 12, 15, and 19, 1991, surveillance teams with at least
two "accredited criminal investigators" made head counts of those
persons entering and exiting the barber shops. The investigators com-
pared the number of those exiting with "fresh haircuts" to the number
of customers reported by the barbers on their daily reports and the
number of sales recorded on the daily cash register receipts. The
results of the investigation indicated that there was a "substantial loss
of government funds." Id.

Armed with this data, Staff Sergeant B. McKee, a criminal investi-
gator with CID, presented sworn testimony to General Downs on
August 28, 1991, for the purpose of obtaining authorization to con-
duct searches of three barber shops. McKee's three affidavits summa-
rized McCaslin's eyewitness observation, MWR's spot check
findings, and CID's visual surveillance. Each affidavit concluded with
the following statement from McKee: "It is believed that this activity
is an ongoing course of business for this barber shop and that stolen
U.S. currency, and personal as well as U.S. government record keep-
ing documentation is maintained within the barber shop . . . ." (J.A.
at 49, 53, 57.) The Command Authorizations for Search and Seizure
issued by Downs each limited the search to the three barber shops and
authorized the seizure of the following items: cash register tapes,
receipts, bookkeeping paraphernalia, U.S. currency, and record keep-
ing documentation concerning the operation of the barber shops. The

                     3
Command Authorizations did not, however, direct the seizure of any
specific person.2

On the same day as the Command Authorizations were issued, CID
agents were accompanied by uniformed military police to the three
barber shops in order to execute the searches. Plaintiffs allege that
after the searches were executed each of them was seized, separated
from the others, and kept under guard in isolation for varying periods
of time while being interrogated. Plaintiffs were allegedly suspended
without pay pending the investigation. No criminal charges were ever
filed against any Plaintiff. Each Plaintiff was eventually reinstated.

Plaintiffs seek compensatory and punitive damages against Downs
and Cathcart. The complaint states the following claims relevant to
this appeal:

           8. That at all times material hereto, including specifi-
          cally the months of August and September of 1991, the
          defendant, JAMES A. CATHCART, was the Chief of Staff
          of Marine Corps Base, Camp Lejeune, North Carolina. That
          all of the actions of the defendant, MICHAEL P. DOWNS,
          complained of below, were undertaken with the advice,
          counsel, consent, and approval of the defendant, JAMES A.
          CATHCART, who acted in such a way to make him jointly
          liable with the defendant, MICHAEL P. DOWNS, for the
          plaintiffs' injuries.

          ....

            10. That on or about August 28, 1991, the defendant,
           MICHAEL P. DOWNS, authorized persons under his com-
           mand, specifically members of the Criminal Investigation
           Division (CID) of the Provost Marshal's office and other
           military policemen, to search the workplaces of the plain-
_________________________________________________________________
2 Plaintiffs contend that Downs gave further verbal orders contempora-
neous with the issuance of the written Command Authorizations to the
effect that "all barbers present in the shops be taken into custody, trans-
ported to the Provost Marshal's Office (PMO) and interrogated . . . ."
(Br. of Appellants at 13.)

                    4
          tiffs, to seize the persons of the plaintiffs, and to take them
          into custody and to search the persons and effects of the
          plaintiffs.

(Compl. ¶¶ 8, 10, J.A. at 7.)

The district court granted Defendants' motion to dismiss or, in the
alternative, for summary judgment. As to Cathcart, the lower court
reasoned that Plaintiffs failed to state what action or actions by Cath-
cart they attributed to Downs or what principles of law support their
"novel theory of respondeat superior." (J.A. at 167.) As to Downs,
the lower court concluded that no factual support existed to suggest
that Downs authorized any actions other than those specified on the
face of the Command Authorizations. Furthermore, the district court
found that Downs was entitled to "something akin to quasi-judicial
immunity" in fulfilling the duties of his office. (J.A. at 170.) Finally,
even assuming that Downs did not possess any form of immunity, the
district court concluded that the Command Authorizations were sup-
ported by probable cause as set forth in McKee's affidavits.

Plaintiffs appeal from the district court's order of May 4, 1995.

II.

The first issue on appeal is whether the district court erred in grant-
ing Defendants' motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) or, alternatively, Defendants' motion for summary judgment
pursuant to Fed. R. Civ. P. 56. We view the district court's ruling as
converting Defendants' motion to dismiss into a motion for summary
judgment as the district court considered affidavits and other materi-
als submitted by the parties in reaching its decision.3 Before consider-
ing whether the district court properly granted Defendants' motion,
_________________________________________________________________

3 See Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense num-
bered (6) to dismiss . . . matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 . . . .").

                     5
the parameters of qualified immunity should be noted as it governs
the resolution of this case.4

Government officials performing discretionary functions are gener-
ally protected from civil damages liability as long as their "conduct
does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Taylor v. Waters, 81 F.3d 429,
433 (4th Cir. 1996). The policy reasons supporting such a rule are
compelling: the substantial costs of permitting damages actions
against government officials with the same force as against non-
government individuals include the expense of litigation, the diver-
sion of official energy from pressing public issues, the deterrence of
able citizens from acceptance of public office, and the interference
with the discharge of government business, to name a few. See gener-
ally Harlow, 457 U.S. at 814.

Thus, to effectuate these policies, this circuit has adopted a "height-
ened pleading standard" consistent with the Supreme Court's urging
in Harlow that the issue of qualified immunity be resolved by the trial
judge at the earliest possible stage of the litigation. Dunbar Corp. v.
Lindsey, 905 F.2d 754, 763 (4th Cir. 1990); see also Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (noting that qualified immunity is
"an immunity from suit rather than a mere defense to liability" and
"such pretrial matters as discovery are to be avoided if possible").
This standard requires a specification of the clearly established rights
involved and relates to the degree of factual specificity required in the
complaint. Dunbar, 905 F.2d at 763 (citations omitted).
_________________________________________________________________

4 Indeed, when qualified immunity is asserted as a defense, the court
reviewing such a defense "should assess, before anything else, whether
the alleged conduct violated law clearly established at the time the con-
duct occurred." DiMeglio v. Haines, 45 F.3d 790, 798 (4th Cir. 1995).
The court in DiMeglio went on to find that requiring a court to conduct
a full review of such a claim on the merits would undermine the policy
of qualified immunity. Specifically, "[s]uch a requirement would under-
mine one of the express purposes of immunity, which is, `to spare a
defendant not only unwarranted liability, but unwarranted demands cus-
tomarily imposed upon those defending a long drawn out lawsuit.'" Id.
(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)).

                    6
The heightened pleading standard finds its justification in the need
to prevent "`fishing expedition[s] in government waters' . . . on the
basis of wholly unsubstantiated charges," Dunbar Corp., 905 F.2d at
764 (internal citations omitted). In Harlow, the Court stated that once
a defendant affirmatively pleads the defense of qualified immunity, a
judge may determine

          not only the currently applicable law, but whether that law
          was clearly established at the time an action occurred. If the
          law at that time was not clearly established, an official could
          not reasonably be expected to anticipate subsequent legal
          developments, nor could he fairly be said to "know" that the
          law forbade conduct not previously identified as unlawful.
          Until this threshold immunity question is resolved, discovery
          should not be allowed.

Id. at 818 (emphasis added).

Although the district court did not address the issue of a heightened
pleading standard in this case, we agree with the district court that the
complaint and supporting materials fail to state a cognizable legal
claim or, in the alternative, that there is no genuine issue as to any
material fact, and Defendants are entitled to summary judgment as a
matter of law.

Plaintiffs have premised their Bivens claim 5 on the assumption that
because Downs and Cathcart were in charge of Camp LeJeune, they
must have ordered the allegedly unconstitutional seizures. We are not
compelled to address the merits of Plaintiffs' claim, but the point is
too obvious and brief to gloss over before reaching the issue of quali-
fied immunity.

Plaintiffs chose to sue the first- and second-in-command of a mili-
tary base for claimed unconstitutional actions taken by a collection of
individuals acting under their supervisors' command. To be sure,
_________________________________________________________________
5 See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971) (holding that a violation of the Fourth Amendment by a federal
agent acting under color of his authority gives rise to a cause of action
for damages consequent upon his unconstitutional conduct).

                     7
Plaintiffs did not name those members of the military police or CID
who executed the Command Authorizations as defendants in this suit.
The proposition of imposing such liability on persons who did not
engage in specific injury-inflicting conduct runs squarely into well-
settled principles of law.

As the district court correctly noted, supervisory liability in civil
rights cases is narrowly defined. Although there is no respondeat
superior liability in Bivens actions, see Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995); cf. Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 735 (1989) (holding that a municipality cannot
be held liable in Bivens-type actions under a theory of respondeat
superior), a supervisor could be held liable for the acts of a subordi-
nate "only by proof of [his] direct culpability in causing the injury
either by directly authorizing it or by expressly or tacitly condoning
by inaction a known pattern of comparable coworker conduct."
McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1197
(4th Cir.) (citation omitted), cert. denied, 117 S. Ct. 72 (1996). Plain-
tiffs face a heavy burden of proof in supervisory liability cases.
Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984).

Plaintiffs fail to meet this heavy burden of proof on two fronts.
First, Plaintiffs fail to demonstrate any evidence of an unreasonable
risk of harm from a specified source or that Defendants' "corrective
inaction amounts to deliberate indifference or `tacit authorization of
the offensive practices.'" Slakan, 737 F.2d at 372 (citation omitted).
Other than the conclusory allegations in the complaint as referenced
above, Plaintiffs have come forward with no evidence that either
Downs or Cathcart directly authorized the seizures of the barbers or
were deliberately indifferent to a known pattern of such unconstitu-
tional conduct. Second, with respect to the heightened pleading stan-
dard in this case, Plaintiffs merely allege that the actions of Downs
are attributable to Cathcart without offering any explanation whatso-
ever of Cathcart's specific involvement in the seizures. As to Downs,
Plaintiffs allege that he directly authorized the seizure of the barbers.
Downs responded with evidence in the form of the Command Autho-
rizations demonstrating that he had not, in fact, authorized such sei-
zures. The burden then fell to Plaintiffs to submit evidence in the
form of affidavits or otherwise which "set[s] forth specific facts
showing that there is a genuine issue for trial." Anderson v. Liberty

                     8
Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Plaintiffs have
failed to meet this burden by not presenting any evidence that Downs
authorized the seizure of the barbers or that Cathcart had any role in
Downs' decision.

Accordingly, we conclude that the district court properly granted
Defendants' motion to dismiss or, alternatively, for summary judg-
ment.

III.

We turn now to the issue of the qualified immunity defense raised
by Defendants.6 Assuming that an individual is a government official
performing discretionary functions, the crux of the qualified immu-
nity analysis is the "objective legal reasonableness" of the official's
alleged unconstitutional act viewed in the context of legal rules that
were clearly established at the time the action was taken. Anderson
v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 819-20 (1982)); Pritchett v. Alford, 973
F.2d 307 (4th Cir. 1992). In order to determine whether an officer's
conduct is immunized, we employ a three-step analysis: 1) identify
the specific constitutional right allegedly violated; 2) determine
whether at the time of the alleged violation the right was clearly
established; and 3) if the right were clearly established, determine
whether a reasonable person in the officer's position would have
known that doing what he did would violate that right. Pritchett, 973
F.2d at 312. The officer is entitled to immunity if the right were not
clearly established at the relevant time or if a reasonable officer
would not have known that his conduct violated the right.

Plaintiffs' constitutional claim is that Downs and Cathcart violated
their Fourth Amendment rights by authorizing military personnel to
_________________________________________________________________
6 In consideration of the Supreme Court's admonition that it is "quite
sparing in its recognition of claims to absolute official immunity[,]" we
analyze this case on qualified immunity grounds to"avoid unnecessarily
extending the scope" of absolute immunity. Forrester v. White, 484 U.S.
219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 (1988) (citations omit-
ted).

                    9
search and seize Plaintiffs when they had no probable cause. A deter-
mination of whether the legal rule was clearly established at the rele-
vant time turns on the level of abstraction at which the legal rule is
assessed. The Fourth Amendment right to be searched and seized only
upon a showing of probable cause, absent a recognized exception, is
clearly established. It is, however, improper to analyze the applicable
right at this level of generality and "would bear no relationship to the
`objective legal reasonableness' that is the touchstone of Harlow."
Anderson, 483 U.S. at 639; see also Taylor , 81 F.3d at 434. The
inquiry must be more focused in order to make it possible for officials
"reasonably [to] anticipate when their conduct may give rise to liabil-
ity for damages. . . ." Davis v. Scherer, 468 U.S. 183, 195 (1984).

          [O]ur cases establish that the right the official is alleged to
          have violated must have been "clearly established" in a more
          particularized, and hence more relevant, sense: The contours
          of the right must be sufficiently clear that a reasonable offi-
          cial would understand that what he is doing violates that
          right. That is not to say that an official action is protected
          by qualified immunity unless 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 (citation omitted).

The reasonableness of Downs' and Cathcart's actions is not contin-
gent upon whether probable cause actually existed. Hunter v. Bryant,
502 U.S. 224, 226-27 (1991). The doctrine of qualified immunity con-
templates that law enforcement officials will make the occasional
mistake in judgment. Malley v. Briggs, 475 U.S. 335, 343 (1986). A
reasonable but mistaken conclusion that probable cause exists, for
example, is tolerable because "officials should not err always on the
side of caution" for fear of being sued. Davis, 468 U.S. at 196. On the
other hand, qualified immunity does not protect against "plainly
incompetent" judgments or judgments in "know[ing] violat[ion] of the
law." Malley, 475 U.S. at 341. In determining whether Downs is enti-
tled to qualified immunity, our analysis "must be filtered through the
lens of the officer's perceptions at the time of the incident in ques-
tion." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (citation
omitted). Thus, Downs and Cathcart will not be denied qualified

                    10
immunity for making a mistake, so long as that mistake is reasonable
given the circumstances.

What sets this case apart from the standard qualified immunity sce-
nario is the presence of the military. The general rule governing the
search and seizure of civilians located on a military base and subject
to the authority of the base commander is that as long as their actions
are based on probable cause, "military personnel are authorized by
statute to arrest and detain civilians for on-base violations of civil
law[.]" United States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976). As
one court in this circuit has held:

          [A]s long as the military respects the rights guaranteed by
          the Fourth Amendment's prohibition against unreasonable
          searches and seizures, the military need not be bound by all
          of the procedural formalities that are imposed upon civilian
          law enforcement agencies.

United States v. Rogers, 388 F.Supp. 298, 301 (E.D. Va. 1975); see
also United States v. Stuckey, 10 M.J. 347, 361 (1981) ("The com-
mander's power to authorize searches of places and persons under his
control exists to whatever extent it does exist because it complies with
the Fourth Amendment's basic norm of reasonableness"); cf.
Applewhite v. United States Air Force, 995 F.2d 997, 1000-01 (10th
Cir. 1993) (holding that military personnel engaged in a sting opera-
tion did not violate clearly established Fourth Amendment rights in
seizing a civilian based upon probable cause to believe she was par-
ticipating in a narcotics transaction and holding her pending a deter-
mination whether civilian authorities would take over the
investigation). Thus, it is clear that at the time Downs allegedly
authorized the seizure of Plaintiffs, there was no clearly established
law forbidding him to do so.

IV.

The evidence that McKee presented to Downs clearly established
enough probable cause to support the issuance of the Command
Authorizations. A Command Authorization, the military equivalent of
a search warrant, must be supported by probable cause to satisfy the

                    11
Fourth Amendment. United States v. Harris, 403 U.S. 573, 577 (1971).7
McKee's affidavits summarized over a month-long investigation of
the barber shops in question. This investigation by the CID was set
in motion by the eyewitness account of Officer McCaslin of a head
barber pocketing half of the six dollars he received from two marines
for two haircuts. CID then discovered that past spot checks of the
base barber shops consistently revealed more money in the cash regis-
ters than on the cash register receipts. At the end of the day, however,
the money in the cash registers and the cash receipts balanced. The
CID then undertook constant visual surveillance wherein teams of
military investigators conducted on-the-spot undercover observations
of the barber shops over a period of four days.

Plaintiffs vigorously argue that the methods of collecting evidence
during the visual surveillances were conclusory, therefore, Defen-
dants' reliance on this evidence was unreasonable. In Plaintiffs' view,
because the military investigators could not possibly distinguish
between those marines exiting the barber shops under surveillance
with fresh haircuts from any other marine exiting with short hair, it
was unreasonable for Downs and Cathcart to rely on McKee's affida-
vits.

Qualified immunity is lost only if "the warrant application is so
lacking in indicia of probable cause as to render official belief in its
existence unreasonable." Malley, 475 U.S. at 344-45. Notwithstand-
ing the pure speculation by Plaintiffs as to any effects of the allegedly
flawed investigative methodologies, under the "totality-of-the-
circumstances" approach to reviewing probable cause determinations,
see Illinois v. Gates, 462 U.S. 213, 230 (1983), we hold that McCas-
lin's eyewitness account coupled with the MWR spot check evidence
_________________________________________________________________
7 Furthermore, search warrants may be issued only by a neutral and
detached magistrate. See, e.g., United States v. Clutchette, 24 F.3d 577,
579 (4th Cir. 1994). As noted, this case presents a unique twist in that
a military commander issued the search warrant. Military officials, like
federal magistrates in the civilian realm, are empowered to issue search
warrants consistent with the dictates of the Fourth Amendment and
"must be neutral and detached and must perform[their] duties with a
judicial rather than a police attitude." United States v. Ezell, 6 M.J. 307,
315 (1979) (internal quotations and citation omitted).

                    12
constituted ample probable cause for Downs and Cathcart reasonably
to authorize the Command Authorizations.

Accordingly, reasonable officers in Downs' and Cathcart's posi-
tions could find probable cause to believe that a crime had been com-
mitted against the government.

V.

For the foregoing reasons, we affirm the decision of the district
court in granting Defendants' motion to dismiss or, in the alternative,
for summary judgment.

AFFIRMED

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