                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         DEC 31 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 KATHLEEN A. FRANCISCO; LEWIS J.
 FRANCISCO; BILLY L. SKOOG,

          Plaintiffs-Appellants,

 COEXCO, INC.,
                                                            No. 96-1459
          Plaintiff,
                                                        (D.C. No. 95-M-1561)
                                                              (D. Colo.)
 v.

 JAMES J. LONG; KENNETH NAVE;
 MICHAEL J. MILNE, and First through Fourth
 Does; UNITED STATES OF AMERICA,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



      *
        This order and judgment is not binding precedent except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Kathleen Francisco, Lewis Francisco, and Billy Skoog (the Appellants)

appeal the district court's dismissal on summary judgment of their lawsuit against

two detectives of the Sheriff's Office of Adams County, Colorado, an attorney in

the District Attorney's Office of Adams County, Colorado, and the United States

of America (the Defendants) for various alleged civil rights violations. The

district court properly exercised jurisdiction under 28 U.S.C. §§ 1331 and

1343(a). This court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1291.



      Appellants contend the district court erred in dismissing their 42 U.S.C.

§§ 1983 and 1985(3) claims at the summary judgment stage. They also argue the

district court erred by failing to provide them with an opportunity to conduct

discovery before dismissing the case on summary judgment. 1 We affirm the

district court's decision.


      1
         In their pro se brief, Appellants state four issues on appeal: (1) do they
have a claim under the Fourth and Fourteenth Amendments; (2) did the
defendants enter into a conspiracy to violate appellants's civil rights; (3) does
immunity apply and can the court decide this issue without a evidentiary hearing;
and (4) did the court properly dismiss on summary judgment. For purposes of its
analysis, the court has combined issues 1 and 3. Issue 4, of course, applies across
the board.

                                         -2-
          Appellants owned and operated a hot tub and bath house business in Adams

County, Colorado. The local authorities suspected the business of operating as an

unlicensed massage parlor and illegal nude entertainment establishment. On June

18, 1993, the Adams County Sheriff's Office obtained a search warrant to search

the business and seize evidence relating to these suspicions. Detectives served

the warrant and searched the business on June 19 and 20, 1993, seizing fifteen

boxes of records and documents. Appellants allege this was a "general and

indiscriminate search" in violation of their Fourth and Fourteenth Amendment

rights.



          Prior to issuance of the warrant, Dennis Bok, a Revenue Agent of the

United States Internal Revenue Service, who suspected the business of concealing

cash profits, met with detectives in the Adams County Sheriff's Office to discuss

his concerns. At that time, the detectives were unable to help Agent Bok, but

following the execution of the search warrant, the detectives provided Agent Bok

the seized records. The Internal Revenue Service then used the documents in its

investigation of Appellants' business. Appellants allege Agent Bok conspired

with the Adams County Sheriff's Office officials to obtain business records for

the Internal Revenue Service in violation of the Apellants' Fourth and Fourteenth

Amendment rights.


                                           -3-
      In their complaint, appellants stated claims for violations of their Fourth

and Fourteenth Amendment rights. The district court determined the defense of

qualified immunity applied and dismissed the claims on summary judgment. We

review a grant of summary judgment de novo, using the Federal Rule of Civil

Procedure 56(c) standard applied by the district court. V-1 Oil Co. v. Means, 94

F.3d 1420, 1422 (10th Cir. 1996).



      Federal courts have recognized a qualified immunity defense for federal

officials sued under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), and for state officials sued under § 1983. See

Johnson v. Fankell, ___ U.S. ___, ___, 117 S. Ct. 1800, 1803 (1997); see also

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (establishing the qualified

immunity defense). To avoid dismissal when a defendant raises a claim of

qualified immunity, "the plaintiff must show that the law was clearly established

when the alleged violation occurred and come forward with facts or allegations

sufficient to show that the official violated the clearly established law."

Woodward v. City of Worland, 977 F.2d 1392, 1396 (10th Cir. 1992), cert. denied,

509 U.S. 923 (1993). In other words, once the qualified immunity defense is

raised, the plaintiff has the burden of identifying a clearly established right, of

which a reasonable person would have known, and alleging facts showing the


                                          -4-
defendant violated that right. Harlow, 457 U.S. at 818.



      The district court based its decision on the Appellants' failure to cite any

authority showing that Defendants violated clearly established law. Despite

numerous challenges, the actions of Defendants have been upheld in several

different courts. On appeal, the Appellants have again failed to cite any authority

to support their allegation that Defendants violated their constitutional rights.

This court is unaware of any such authority that might support their position.



      The qualified immunity defense is intended to protect the defendants to

which it applies from the burdens of trial as well as from potential liability. See

Fankell, 117 S. Ct. at 1803. The objective qualified immunity defense standard

was adopted in part to "'permit the resolution of many insubstantial claims on

summary judgment.'" Id. (quoting Harlow, 457 U.S. at 818). Because Appellants

could not come forward with sufficient facts or allegations to show violations of

clearly established law, they are not entitled to subject Defendants to the burdens

of an evidentiary hearing, discovery, or trial.



      Appellants also alleged the detectives conspired with Agent Bok to deprive

them of their Fourth and Fourteenth Amendment right to be free from


                                          -5-
unreasonable search and seizure. The district court considered this a claim

pursuant to 42 U.S.C. § 1985(3) and properly dismissed it for failure to allege

class-based animus. Appellants argue the district court erred in finding no class-

based animus.



      Section 1985(3) requires "racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators' action." Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). A § 1985(3) claim lacking an allegation

of "class-based or racial discriminatory animus" must fail. Bisbee v. Bey, 39 F.3d

1096, 1102 (10th Cir. 1994), cert. denied, 515 U.S. 1142 (1995).



      Appellants contend the animus in this case is that of the government agents

toward "adult businesses." This court has determined § 1985(3) was intended "'to

provide redress for victims of conspiracies impelled by a commingling of racial

and political motives'" primarily stemming from "strife in the South in 1871."

Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985) (quoting Hampton v.

Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979), and other cases) (finding plaintiffs

alleging they were discriminated against because of their political beliefs were not

in a protected class).

      Whatever may be the precise meaning of a "class" for purposes of Griffin's
      speculative extension of § 1985(3) beyond race, the term unquestionably


                                          -6-
      connotes something more than a group of individuals who share a desire to
      engage in conduct that the § 1985(3) defendant disfavors. Otherwise,
      innumerable tort plaintiffs would be able to assert causes of action under
      § 1985(3) by simply defining the aggrieved class as those seeking to
      engage in the activity the defendant has interfered with. This definitional
      ploy would convert the statute into the "general federal tort law" it was the
      very purpose of the animus requirement to avoid.

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993) (citations omitted)

("'Women seeking abortion' is not a qualifying class."). We agree with the district

court that owners of adult businesses are not a protected class for § 1985(3)

purposes.



      As this court finds no reversible error, the decision of the district court is

AFFIRMED.

                                         Entered for the Court

                                         WADE BRORBY
                                         United States Circuit Judge




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