                     UNITED STATES COURT OF APPEALS
Filed 11/5/96
                             FOR THE TENTH CIRCUIT



    WILLIE ALIRE, LARRY DIAZ,

               Plaintiffs-Appellants,

    v.                                                 No. 96-2021
                                                 (D.C. No. CIV-94-622-JP)
    STEVE BELL,                                         (D. N.M.)

               Defendant-Appellee,

         and

    GENE JOHNSON; JOHN DOE, I
    THROUGH X; JANE DOE, I
    THROUGH X,

               Defendants.




                             ORDER AND JUDGMENT *



Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiffs Willie Alire and Larry Diaz appeal from a district court order

granting summary judgment to defendant Steve Bell. In 1992, Bell, a police

officer, facilitated the recording of several telephone conversations between

Alire, who was using a cordless telephone, and Diaz, who was using a standard

land-line telephone. Bell passed these recordings on to another defendant.

Plaintiffs contend that in so doing Bell violated 18 U.S.C. § 2511 (prohibiting the

unauthorized intentional interception of certain communications), 47 U.S.C. § 605

(prohibiting the unauthorized divulgence of intercepted communications), and

their Fourth Amendment right to privacy. 1 The district court held that plaintiffs

failed to establish that Bell violated clearly established law, and thus granted his

motion for summary judgment on the ground of qualified immunity. We affirm.

      We review de novo the grant of summary judgment; however, our approach

differs from that in other summary judgment rulings because of the qualified

immunity defense. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). Once a


1
      In the district court plaintiffs also claimed that Bell’s actions violated state
law, but did not argue on appeal that the district court erred in ruling against them
on that issue.

                                         -2-
defendant raises a qualified immunity defense, the plaintiff must demonstrate that

the defendant violated a constitutional or statutory right that was clearly estab-

lished at the time of the challenged conduct. Albright v. Rodriguez, 51 F.3d

1531, 1534 (10th Cir. 1995). To satisfy this burden “the plaintiff must do more

than identify in the abstract a clearly established right and allege that the defen-

dant has violated it.” Romero, 45 F.3d at 1475.

      The plaintiff must demonstrate a substantial correspondence between
      the conduct in question and prior law allegedly establishing that the
      defendant’s actions were clearly prohibited. The “contours of the
      right 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, 97 L.Ed.2d 523
      (1987). While Anderson makes clear that there is no requirement
      that the specific action [sic] in question have previously been held
      unlawful, the plaintiff must show that the unlawfulness of the con-
      duct in question is “apparent” in light of preexisting law. Id.

Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990). If the plaintiff

fails to satisfy this burden, the defendant prevails, and we need not consider

whether the defendant established the absence of material issues of fact. See

Romero, 45 F.3d at 1475.

      In this case, we agree with the district court’s conclusion that plaintiffs

failed to show clearly established law that an officer, intercepting cordless

telephone transmissions, could be liable to any party to the intercepted conversa-

tion who might be using a conventional land-line telephone. Accordingly, we

affirm. See McKamey v. Roach, 55 F.3d 1236 (6th Cir. 1995) (affirming the

                                          -3-
dismissal of an action for damages under 18 U.S.C. §§ 2510-2521, arising out of

the interception of cordless telephone transmissions in 1992 [before 1994 amend-

ments to Title III], when one of the plaintiffs used a standard land-line telephone

during the intercepted conversations); In re Askin, 47 F.3d 100 (4th Cir.) (reject-

ing arguments under both 18 U.S.C. § 2511 and the Fourth Amendment and

affirming a contempt citation arising out of a witness’ refusal to answer questions

derived from cordless telephone transmissions which were intercepted in 1993,

when the witness used either a conventional land-line telephone or a cellular car

telephone during the intercepted conversations), cert. denied, 116 S. Ct. 382

(1995).

      AFFIRMED.

                                                    Entered for the Court

                                                    James K. Logan
                                                    Circuit Judge




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