                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-1999

Showers v. Spangler
Precedential or Non-Precedential:

Docket 98-7122




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"Showers v. Spangler" (1999). 1999 Decisions. Paper 179.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/179


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed June 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7122

MICHAEL W. SHOWERS; ANN G. SHOWERS

v.

STEVEN A. SPANGLER; LARRY HAYNES; GREG
HOUGHTON; TIM SMITH; HOWIE KESSEL; RON
CLOUSER; JAMES R. BEARD; J. R. FAGAN; DAVID
SLOAN; PETER S. DUNCAN, all in their individual
capacity

Michael W. Showers; Ann G. Showers,

       Appellants

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 95-cv-00183)
Honorable William W. Caldwell

Argued: February 18, 1999

BEFORE: GREENBERG, LEWIS and
BRIGHT,* Circuit Judges

(Filed June 29, 1999)



_________________________________________________________________

*Honorable Myron H. Bright, United States Circuit Judge for the 8th
Circuit Court of Appeals, sitting by designation.
       James R. Ronca, Esq. (Argued)
       Schmidt & Ronca
       209 State Street
       Harrisburg, PA 17101
       Counsel for Appellants

       Howard G. Hopkirk, Esq. (Argued)
       15th Floor
       Office of the Attorney General of
        Pennsylvania
       Strawberry Square
       Harrisburg, PA 17120
       Counsel for Appellees

OPINION OF THE COURT

BRIGHT, Circuit Judge.

I.

Following a warrantless search of their home and
business, Michael and Ann Showers brought this civil
rights action against Wildlife Conservation Officer Steven
Spangler and his co-defendants -- all officers or officials of
the Pennsylvania Game Commission. The District Court
granted summary judgment in favor of the defendants after
finding them entitled to qualified immunity. Because we
conclude, however, that an objectively reasonable law
enforcement officer in Spangler's position would know that
searches such as the one made in this case may only be
carried out under a properly executed warrant, summary
judgment based on qualified immunity was improvidently
granted in his favor. We therefore reverse the District
Court's ruling as to Officer Spangler, although we affirm in
all other respects.

II.

We review questions of qualified immunity and summary
judgment de novo and consider the evidence presented to
the District Court in a light most favorable to the non-

                               2
moving party. See Assaf v. Fields, No. 98-7153, 1999 WL
312324, at *4 (3d Cir. May 19, 1999). After review, the
following facts appear from the developed record.

Michael Showers ("Showers") is a licensed taxidermist. In
the spring of 1992, Showers owned and operated Bear
Mountain Taxidermy ("Bear Mountain") in the small town of
Arendtsville, near Gettysburg, Pennsylvania. Bear Mountain
was comprised of three buildings -- including a showroom,
studio, and preparation facility -- all of which were co-
located on a one-acre parcel of land next to Showers's
separate, personal residence.

Taxidermists practice their trade under special permits
issued by the Pennsylvania Game Commission
("Commission"). Language on the face of the permit requires
strict compliance with all state and federal game laws,
including 34 Pa. Cons. Stat. Ann. S 2907 ("Inspection
Statute") which states that:

        Each permit holder shall keep accurate records of all
       transactions carried out under authority of the permit
       issued and any other information required by the
       director. The records must be kept for a period of three
       years and shall be open to inspection by any officer of
       the commission during normal business hours and
       shall be the basis of any reports required by the
       commission.

A corresponding regulation promulgated by the Commission
requires that:

        A holder of a permit shall keep a record of
       transactions on a form provided by the Commission in
       accordance with the instructions provided. The record,
       together with the premises, shall be open to inspection
       upon demand of an officer of the Commission.

58 Pa. Code S 147.1(b)(1993) ("Inspection Regulation").1
_________________________________________________________________

1. As part of this case, the District Court invalidated S 147.1(b) because
it determined that the Inspection Regulation failed to circumscribe the
discretion of law enforcement officers with respect to the time, place,
and
scope of authorized inspections. See Showers v. Spangler, 957 F. Supp.
584, 591-92 (M.D.Pa. 1997). Neither the defendants nor the
Commonwealth of Pennsylvania contest the District Court's
determination of this issue. Hence we leave this portion of the District
Court's order, and its thoughtful analysis, undisturbed.

                               3
Steven Spangler ("Spangler"), at the time of the events in
question, was a Wildlife Conservation Officer ("WCO"). He
was assigned by the Commission to enforce Pennsylvania's
game laws, and he had primary jurisdiction for taxidermists
in Adams County, including Arendtsville.

The relationship between Showers, Spangler, and the
events giving rise to this case, appear to begin as far back
as March 26, 1992. At that time, Spangler charged one of
Showers's customers with taking a wild turkey out of
season. As part of his investigation, Spangler questioned
Showers and examined Bear Mountain's official records --
including those related both to the allegedly illegal turkey
as well as those related to other animals passing through
Showers's shop. Showers informed Spangler that he
understood the turkey to have been taken in-season and
then frozen for future preparation.

Four days later, on March 30, 1992, Showers found that
Officer Spangler had entered his business when Showers
was not there, searched through materials, some in a non-
public area of the shop, and examined Bear Mountain's log
book. When confronted, Spangler indicated that he was
entitled to inspect the business records "anytime he wanted
to[,] with or without [Mr. Showers's] permission." Affidavit
of Michael Showers, App. at 137a.

As a result of this incident, Showers sent a letter of
complaint to defendant Peter Duncan, the Commission's
Executive Director, on May 8, 1992. In this letter, Showers
alleged that Spangler was harassing him and conducting
his duties in an unprofessional manner. See App. at 97a-
99a. Although it is clear that Showers and Spangler also
disagreed over fundamental interpretations of the game
laws, this letter was clearly precipitated by Spangler's
surreptitious entry into Showers's showroom and
Spangler's subsequent examination of Showers's records in
his absence. Id. at 97a-98a.

Although Duncan did not respond to the May 8 letter,
word of Mr. Showers's complaints apparently filtered back
to Officer Spangler because he confronted Showers on June
2, 1992 and expressed his displeasure that Showers had
not dealt directly with him rather than sending "a letter to

                               4
Harrisburg." App. at 100a. Spangler appeared at Showers's
shop and told him, among other things, that: Showers
should not have "gone over his head"; that he, Spangler,
was "the law in this jurisdiction"; that "you have to do what
I say"; and that he would regulate Showers "the way I see
fit." App. at 137a-138a. In short, he belligerently threatened
to "check [Showers] out . . . if [he] refused to cooperate" by
conducting invasive and time-consuming searches of
Showers's freezers. App. at 101a. In response, Showers told
Spangler that he would never consent to searches of this
type and that if Spangler intended to conduct such a
search he should have a warrant. According to Showers,
Spangler went on to tell Showers, "you'd well do as you're
told or I will put you out of business period, point blank."
Deposition of Michael Showers, Dist. Ct. Doc. 24, Vol. I at
155.

On August 14, 1992, Showers wrote a second letter of
complaint, this time to Regional Director David Sloan. See
App. at 100a-103a. This letter described the June 2
confrontation and indicated that Spangler was continuing
to harass and threaten him.2

In response to the letter of August 14, a meeting was
held between Showers, Spangler, and one of Spangler's
superiors, defendant Ron Clouser. At that meeting, Mr.
Clouser admitted the impropriety of Spangler's threats. He
acknowledged that random searches were not the policy of
the Commission and that Spangler had "personal problems"
that were influencing his job performance. App. at 138a.

After seven months in which no contact apparently
_________________________________________________________________

2. Showers's allegations of continued harassment in the summer of 1992
have their genesis in testimony he gave after being subpoenaed in the
prosecution of the sportsman that Spangler had previously accused of
taking a wild turkey out of season. The sportsman was acquitted after
Showers testified that the turkey's feathers showed damage consistent
with a bird that had been long frozen, thus corroborating the
sportsman's defense that he had in fact taken the turkey in season and
then froze it for a period of time prior to mounting it. With his
prosecution of the sportsman scuttled, Spangler apparently became
angry "because [Showers] did not testify the way [Spangler] wanted."
App. at 136a.

                                5
occurred between Showers and Spangler, Spangler and
another WCO attended a local auction on March 26, 1993.
There they found a "wolf-caribou mount" owned by Showers.3
Because the wolf is an endangered species, in order to buy,
sell, or possess such a carcass, certain paperwork must be
in order and, by Commission practice and policy, must
include either a permit issued by the Commission or a CITES4
permit in lieu thereof.

On March 31, 1993, Spangler met with Showers to review
Bear Mountain's records with respect to the wolf-caribou
mount and other items sold at the auction. Showers
showed Spangler his CITES permit, which authorized
export of the wolf from Canada, as well as his purchase
records for the wolf.

Determined to take enforcement action against Showers,
despite the fact that his possession of the wolf appeared to
be legal, Spangler contacted defendant James Beard, head
of the Commission's Special Investigations Unit, in an
attempt to initiate an undercover operation targeting
Showers for criminal prosecution. Mr. Beard declined to
start such a probe because, in his view, the evidence
collected by Spangler did not suggest criminal wrongdoing.
App. at 162a.

Nevertheless, on April 12, 1993, Spangler obtained a
search warrant for the Showers's premises and drew up an
elaborate four-page plan for "Operation U-Haul." Both steps
were highly unusual. Search warrants were not a regular
part of the inspection routine.5 Nor were detailed operation
_________________________________________________________________

3. This mount is a large artistic representation of the predator-prey
relationship in which a full-sized, stuffed wolf appears to be attacking a
full-sized, stuffed caribou.

4. CITES is the Convention on International Trade in Endangered
Species, a multi-party international treaty which governs national
obligations with respect to endangered species and the use of products
related thereto.

5. With respect to search warrants, Officer Spangler was asked at his
deposition:

        Q: When you normally did an inspection, would you get a search
       warrant prior to the inspection?

                               6
plans.6

On the morning of April 13, 1993, eight armed and
uniformed Commission officers descended on the Showers's
business and residence.7 Citing authority to conduct an
administrative inspection under statute and regulation,
neither Spangler nor any other officer produced, served, or
mentioned the search warrant. At no time did Showers
affirmatively consent to the search, nor was he advised by
the officers of his right to refuse.

Despite Showers's complaints of illegality, the search
proceeded. Officers questioned Showers about a variety of
animals in his shop. Over a period of several hours,
Spangler and the other officers searched the showroom,
studio, and freezers located in the preparation areas of the
business. An officer stayed with Showers during the entire
period of the search. At one point, Officer Spangler became
so hostile and belligerent toward Showers that other officers
removed him from the shop in order to "calm him down."
_________________________________________________________________

          A: No, sir.

          Q: Why did you do it in this case?

          A: Because Mr. Showers had told me -- told me and put in one
         of those letters of complaint that he was not going to allow a
search
         of his freezers.

Deposition of Steven A. Spangler, Dist. Ct. Doc. 25 at 166.

6. With respect to operation plans, Officer Spangler was asked:

          Q: In how many other cases have you made up a detailed plan
         like that for the purpose of investigation or a search?

          A: This is the most detailed. I don't recall having done that
         before.

         . . . .

         This I think may have been the only one . . . .

Deposition of Steven A. Spangler, Dist. Ct. Doc. 25 at 180.

7. Participants in the raid, in addition to Officer Spangler, were co-
defendants Haynes, Houghton, and Smith (all WCOs) and Deputy WCO
Kessel. Also present but not named in this suit were Deputy WCOs
Cluck, Herring, and Shilling.
7
Deposition of Michael Showers, Dist. Ct. Doc. 24, Vol. I at
89.

After completing the search of Bear Mountain's business
premises, Spangler ordered Showers to show him the
freezer located in the basement of the Showers's home. Id.
at 107. Over Showers's protests that nothing business
related was contained therein, Spangler searched the
home's freezer and seized some personal, non-business
items.

In the aftermath of the search, Spangler charged Showers
with a number of criminal violations. All of these charges
were subsequently withdrawn by the Commission after
Spangler's superiors intervened.

In addition to the charges stemming from the raid itself,
on May 19, 1993, Showers was served with a criminal
complaint with respect to the wolf-caribou mount-- the
same mount for which Spangler had previously seen proof
of legality. On the same day, Officer Spangler publicly
"tagged" the mount at a sporting goods shop where it was
being used as an advertisement for Bear Mountain
Taxidermy.8

On June 3, 1993, Showers and his attorney met with Mr.
Beard and other ranking members of the Commission. At
that meeting, the Commission officers acknowledged that
Showers legally possessed the wolf-caribou mount-- as
demonstrated to Officer Spangler on March 31-- and the
criminal charges were withdrawn the next day. Despite that
fact however, and despite repeated requests to do so,
Spangler did not remove the tag from the wolf-caribou
mount until August 19, 1993, more than two months later.

Showers brought suit within the applicable statute of
limitations under 42 U.S.C. S 1983. Asserting violations of
the Fourth and Fourteenth Amendments and similar
_________________________________________________________________

8. Tagging, in this context, means that Spangler placed a written notice
of seizure on the mount itself -- a notice which falsely broadcast that
the
item so tagged was possessed illegally. Spangler also ordered the shop
owner not to move the mount under any circumstances. Thus, the
tagged mount was prominently displayed in a shop frequented by the
very sportsmen who are also the clients of professional taxidermists.

                                8
sections of the Pennsylvania State Constitution, Showers
also claimed damages in the form of lost business, damage
to his professional reputation, and physical injuries from
stress-related disease. The District Court granted summary
judgment in favor of all defendants on most of Showers's
claims, with the sole exception of a claim against Spangler
related to the tagging of the wolf-caribou mount which the
court allowed to proceed. Before reaching its decision to
grant summary judgment in favor of the defendants on the
bulk of Showers's claims, the court ruled unconstitutional
the regulation giving Commission officers the power to
conduct inspections. See Showers v. Spangler, 957 F. Supp.
584, 591-92 (M.D.Pa. 1997). The court also noted that the
facts supported an inference that Spangler's search was
merely a pretext for gathering criminal evidence. Id.

Nevertheless, the District Court granted the defendants,
including Officer Spangler, qualified immunity from suit on
the basis that the "pretext doctrine" was not "clearly
established" at the time the search was conducted on April
13, 1993. See id. at 593.9

The defendants subsequently took an interlocutory
appeal from the court's denial of summary judgment on the
mount-related claims. We dismissed that appeal for lack of
jurisdiction. The parties then returned to the District Court
and stipulated to the voluntary dismissal of the mount-
related claims which, following entry of the court'sfinal
order on February 18, 1998, permitted this timely appeal
on the claims for which summary judgment had been
previously granted.

III.

The only issue now before us is the propriety of the
District Court's ruling which granted qualified immunity to
_________________________________________________________________

9. The pretext doctrine describes that aspect of the law which recognizes
that an administrative inspection may not be used as a pretext to gather
evidence as part of what is in fact a criminal investigation. See United
States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993). See also New
York v. Burger, 482 U.S. 691, 716 n.27 (1987). We do not rely on this
doctrine for our own decision, however.

                               9
Spangler, and his co-defendants. "[G]overnment officials
performing discretionary functions generally are granted a
qualified immunity and are `shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.' " Wilson v. Layne,
No. 98-83, 1999 WL 320817, at *8 (May 24, 1999) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (emphasis
added).

When addressing qualified immunity claims, we proceed
in two steps. See Sharrar v. Felsing, 128 F.3d 810, 826 (3rd
Cir. 1997). First, we must ask whether the conduct alleged
by the plaintiff violated a clearly established principle of
constitutional or statutory law. See Johnson v. Horn, 150
F.3d 276, 286 (3rd Cir. 1998). If so, then we go on to ask
whether the unlawfulness of the action would have been
apparent to an objectively reasonable official. Id. Thus, an
officer's subjective intent in carrying out the challenged
action -- whether malicious or benevolent -- is immaterial
to the resolution of questions concerning qualified
immunity. Instead, "whether an official protected by
qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the
`objective legal reasonableness' of the action, assessed in
light of the legal rules that were `clearly established' at the
time it was taken." Anderson v. Creighton, 483 U.S. 635,
639 (1987) (citation omitted).

At the first step then, in order to determine that a legal
right was clearly established at the time of the alleged
violation, the right must be "defined at the appropriate level
of specificity", id. at 641, because, as the Supreme Court
recently reaffirmed, "what `clearly established' means . . .
depends largely `upon the level of generality at which the
relevant legal rule' is to be established." Wilson, No. 98-83,
1999 WL 320817, at *8 (May 24, 1999) (quoting Anderson,
483 U.S. at 639).

In this case, we believe the appropriate question is the
objective inquiry of whether, on April 13, 1993, a
reasonable officer would have known that his
administrative powers were circumscribed by statute and
constitutional requirements to the extent that he could not

                               10
conduct a search for evidence of criminal wrongdoing
without a warrant. We have no difficulty concluding that a
reasonable officer would have so known.

The Fourth Amendment is designed to protect liberty,
privacy, and possessory interests against arbitrary
intrusion by the government. See Soldal v. Cook County,
506 U.S. 56, 62-63 (1992). It is therefore axiomatic that
Fourth Amendment protections require law enforcement
officers to procure and execute a warrant before conducting
a search, subject only to a few well recognized exceptions.
In this case, one of the well recognized exceptions to the
warrant requirement -- administrative inspections
pursuant to regulatory regimes -- may in fact be implicated
if taxidermy is recognized as a highly regulated business.10

Even so, this exception for administrative searches is
extremely limited. When the Supreme Court considered and
upheld the legality of a warrantless administrative search of
an auto salvage yard in New York v. Burger, 482 U.S. 691
(1987), the Court noted that there was "no reason to believe
that the instant inspection was actually a `pretext' for
obtaining evidence of respondent's violation of the penal
laws." Id. at 717 n.27. Such comment strongly implies that
"pretext" on the part of those conducting an otherwise
proper administrative search will render it unconstitutional.
This conclusion is not novel for it has made its way into
established hornbook law. See David Rudstein, et al.,
Criminal Constitutional Law P 3.06[3][d] (1998).

Spangler correctly points out that the Court's footnote in
Burger is not strictly part of its holding, and that this so-
called "pretext doctrine" was not clearly established in 1993
because no court in the Third Circuit had previously
considered or recognized it. Nevertheless, the Burger
decision otherwise supports reversal.

Whatever the merits of permitting even limited searches
pursuant to administrative regimes, the power to conduct
_________________________________________________________________

10. A warrant is generally not required for searches of businesses in
highly regulated industries. See, e.g. Colonnade Catering Corp. v. United
States, 397 U.S. 72 (1970) (liquor); and United States v. Biswell, 406
U.S. 311 (1972) (guns).

                                11
them is not more extensive than the actual authority vested
in the officers by the administrative regime itself.

In this instance, the text of the Inspection Statute, on
which Spangler relies, makes three demands of taxidermy
permittees: (1) they must "keep accurate records" and
"other information" as required; (2) these records must be
"kept for a period of three years"; and (3) these records
shall be "open to inspection by any officer of the
commission." In turn, from these same provisions, an
officer of the Commission is vested with the power to
inspect said same records and information. We see nothing
in the Inspection Statute that may be read to confer a
general search power. Indeed, all of the obligations and
rights created by the statute are tied to the duty to keep
and ability to inspect a permittee's records.

The Inspection Regulation -- upon which Spangler was
also entitled to rely at the time of the search, despite its
constitutional infirmities -- is worded more broadly but is
also ultimately tied to the records kept under the permit.
The Inspection Regulation also requires permittees to "keep
a record" of transactions, but states that "[t]he record,
together with the premises, shall be open to inspection
upon demand . . . ." Thus, the Inspection Regulation seems
to include an additional aspect relating to premises not
provided by statute. But even broadly construed, such
language is insufficient to grant officers of the Commission
the type of sweeping search power Spangler claims. At best
the Inspection Regulation conferred a limited power to
search the transaction records of permittees-- albeit under
all too generous terms of time (on demand) and place (the
premises).

In other words, even when we consider the administrative
regime in this case and construe it liberally, we conclude
that there remained for all objectively reasonable officers a
discernable difference between an inspection of records, for
which no warrant was required, and a search for which a
warrant was always required absent consent from the
person being searched. This interpretation is far from

                                12
unique and the record as a whole strongly corroborates it
as the prevailing view.11

The foregoing limitations on an administrative search
also rest on the specific language of the Supreme Court in
Burger. The Court justified the search in that case in part
on the basis that, if those conducting searches operate
within the powers granted to them by the statutory scheme,
those being searched "[know] that the inspections to which
[they are] subject do not constitute discretionary acts by a
government official but are conducted pursuant to statute."
Burger, 691 U.S. at 711. The Court went on to add that,
when the scope of the law is set forth, the statute"places
the operator on notice as to how to comply with the
statute." Id. Finally, Burger emphasized that administrative
searches must be limited by the terms of the statutes which
authorized them in order "to place appropriate restraints
upon the discretion of the inspecting officers." Id. Thus, the
law barring random and extensive administrative searches
had been clearly established since at least the Burger case
in 1987.

Here, Spangler designed "Operation U-haul," from its
conception, as a search outside the statutory authority for
an administrative inspection -- creating a search for
criminal physical evidence and not an inspection of a
taxidermist's records. As the District Court noted,
Spangler's efforts to plan and conduct an exhaustive search
of Showers's home and business had all the hallmarks of a
purely criminal investigation: he focused on possible
criminal wrongdoing well in advance of the actual search,
for which he planned extensively and organized a large
show of force; he applied for a warrant, knowing that
_________________________________________________________________

11. As but one example, in his deposition testimony, co-defendant Beard
discussed the general understanding of search and seizure principles
within the Commission and among its officers, and he noted that such
a distinction was understood. He said, inter alia,

       [In my answers] I'm trying to keep [a] search separated from an
       inspection. You know, an inspection is an inspection. A search is a
       search. When you search, you have a search warrant or you have [ ]
       consent . . . .

App. at 168a.

                               13
Showers indicated he would refuse consent, and implying
that he knew a warrant was in fact required. Yet at the time
of the search itself, he failed to serve the warrant as
required by law. These actions violated the clearly
established parameters of both the Inspection Statute and
Inspection Regulation upon which he relied for his
authority.

Thus, a reasonable officer in Spangler's position would
have known that the actions he undertook in this case were
not authorized by either the administrative statute or
regulation then in place. Because the boundaries of his
inspection authority were, in fact, clearly established -- and
did not include the use of administrative inspection to
randomly and extensively search for evidence of crimes --
Spangler is not entitled to qualified immunity. His liability,
if any, for the search of April 13, 1993 is for a jury to
decide.

Having held that Officer Spangler is not entitled to
qualified immunity, we must briefly consider his co-
defendants. Unlike Spangler, each of the other officers and
officials named in the suit, on these facts, appear to have
carried out their duties in an objectively reasonable
manner. Four of the defendants -- Officers Haynes,
Houghton, Kessel and Smith -- did participate in the illegal
search. However, all four participated under Spangler's
direct operational control and the record discloses nothing
to suggest that any of them knew that Spangler was
exceeding his authority. As to the remaining four
defendants -- Supervisors Sloan, Beard, Clouser, and
Fagan -- nothing on the record suggests that they were
aware of the search before it took place. While they knew of
Showers's complaints against Spangler, and might well
have intervened more forcefully, such tangential
supervisory involvement cannot support liability and
certainly does not undercut the District Court's justifiable
conclusion that they are entitled to qualified immunity.

Accordingly, we reverse the District Court's order
granting summary judgment in favor of Spangler and
remand for a jury trial to determine both immunity and

                               14
liability. As to all other defendants, however, summary
judgment in their favor is affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
