                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0189n.06

                                         No. 15-1665                                FILED
                                                                               Apr 04, 2016
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

ROGER LANGE,                         )
                                     )
     Plaintiff-Appellee,             )
                                     )
v.                                   )
                                                              ON APPEAL FROM THE
                                     )
                                                              UNITED STATES DISTRICT
DAN MCGINNIS; CITY OF BENTON HARBOR; )
                                                              COURT FOR THE WESTERN
TONY SAUNDERS,                       )
                                                              DISTRICT OF MICHIGAN
                                     )
     Defendants-Appellants.          )
                                     )


       Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Former Benton Harbor Director of Public Safety Roger

Lange sued the City of Benton Harbor, Michigan, and City employees, Dan McGinnis and Tony

Saunders, under 42 U.S.C. § 1983 and Michigan law.         Lange claimed that the defendants

violated his Fourth Amendment rights when McGinnis deleted all the files on a personal hard

drive that Lange had attached to his work computer. The district court held that McGinnis was

not entitled to qualified immunity as to Lange’s § 1983 claim. We respectfully disagree and

reverse.

       We recite the facts in the light most favorable to Lange. Benton Harbor hired Lange as

its Chief of Police in 2009. A year later, the State of Michigan determined that Benton Harbor

was in a financial emergency. In 2011, the Benton Harbor Police and Fire Departments merged

to form the Department of Public Safety, with Lange as its Director. In January 2013, the Local
No. 15-1665, Lange v. McGinnis, et al.


Emergency Financial Assistance Loan Board appointed Tony Saunders as the City’s Emergency

Manager. In July 2013, the City Commissioners received an anonymous fax complaining that

Lange was not trained as a firefighter. An attorney advised Saunders that he should require

Lange to pass the firefighter-certification test. The next day, Saunders placed Lange on paid

administrative leave until he could pass the firefighter-certification test in August. Lange turned

in his office and vehicle keys, and his firearm. Thereafter, Lange was permitted on City property

only to the extent necessary to prepare for the exam. In August, Lange passed the written part of

the firefighter exam, but not the practical part.

       After the August exam, the City offered Lange a job as Community Liaison Officer,

which he declined. Lange instead asked Saunders to reinstate him as Director of Public Safety.

Saunders refused and told Lange that his choices were to take the Liaison position, go on unpaid

leave until he passed the firefighter test, or resign. Lange went on unpaid leave in October 2013.

A few weeks later, Lange asked for permission to retrieve his personal belongings from his

office. Saunders said no, and instead told Lange to itemize his belongings so that someone could

retrieve them for him. Lange sent Saunders a list of items, including a hard drive. Saunders

asked the Captain of the Police Division of the Department of Public Safety, Dan McGinnis, to

clear the hard drive of any City files. In March 2014 the City returned the hard drive, but it was

empty: McGinnis had deleted all the files, City and personal alike.

       Lange thereafter brought this lawsuit, claiming that the deletion of his files was an

unconstitutional search and seizure under § 1983. Lange also asserted several state-law claims.

McGinnis moved for summary judgment on the § 1983 claim, asserting qualified immunity. The

district court denied his motion. We review the denial de novo. Whitney v. City of Milan,

677 F.3d 292, 296 (6th Cir. 2012).



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No. 15-1665, Lange v. McGinnis, et al.


       McGinnis is entitled to qualified immunity unless a reasonable jury could find that he

violated a constitutional right that was clearly established at the time of his actions. See DiLuzio

v. Vill. of Yorkville, Ohio, 796 F.3d 604, 608-09 (6th Cir. 2015). “For a right to be clearly

established, the contours of the right must be sufficiently clear that a reasonable officer would

understand that what he is doing violates that right.” McGlone v. Bell, 681 F.3d 718, 735 (6th

Cir. 2012).

       The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated[.]”   U.S. Const. amend. IV.      Government employees are entitled to some Fourth

Amendment protections in the workplace. See O’Connor v. Ortega, 480 U.S. 709, 717 (1987)

(plurality opinion); id. at 737 (Scalia, J. concurring). The plurality in O’Connor held that, to

invoke the protections of the Fourth Amendment, government employees must first show they

had a “reasonable expectation of privacy” in the subject of the search. Id. at 711-12. Employees

must then show that the search was unreasonable at its inception, or as to its scope, or both. Id.

at 726. Justice Scalia would have skipped the question whether the employee had a reasonable

expectation of privacy, reasoning that “the offices of government employees, and . . . files within

those offices, are covered by Fourth Amendment protections as a general matter.” Id. at 731

(Scalia, J. concurring). Under either approach the outcome turns on whether “the governmental

intrusion was reasonable.” See id. at 732 (Scalia, J. concurring); id. at 726 (plurality opinion).

       We skip to the question whether McGinnis’s actions violated any clearly established

right. Although the district court analyzed the issue as if McGinnis executed only a search, he in

fact executed a search and then a seizure. We consider the search first. “Ordinarily, a search of

an employee’s office by a supervisor will be justified . . . when . . . the search is necessary for a



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No. 15-1665, Lange v. McGinnis, et al.


noninvestigatory work-related purpose such as to retrieve a needed file.” Id. at 726 (internal

quotation marks omitted); see also id. at 732 (Scalia, J. concurring). Here, Lange concedes that

the City was entitled to delete any work files on his hard drive. To determine whether any work

files were on the drive, the City needed to search the drive. And the search itself was minimally

invasive: It entailed only opening the hard drive and seeing that its contents included City files.

The search was also undisputedly non-investigative. We see nothing about the search, therefore,

that would have made clear to a reasonable officer that the search was unconstitutional.

       McGinnis effected a seizure when he deleted all of the files on Lange’s hard drive. See

Sol Dal v. Cook County, 506 U.S. 56, 61 (1992). Lange’s concession that the City was entitled

to delete any work files on his hard drive amounts to a concession that the City was entitled to

effect a seizure to some extent. The question is whether McGinnis clearly went too far by

deleting all the files on the drive. McGinnis could have deleted fewer files by combing through

the files one-by-one and then deleting only the work files; but that approach would have effected

a much more invasive search. Or he could have done what he did, which was to effect a minimal

search and a broader seizure. No caselaw made clear to McGinnis that the latter choice was a

constitutionally impermissible one.

       The cases that Lange cites only underscore the point. O’Connor concerned physical files

and said nothing about choosing between a broader search and a broader seizure. Our decision

in James v. Hampton, 592 F. App’x 449 (6th Cir. 2015), came a year after McGinnis’s actions

and thus offered him no guidance then. And the other cases that Lange cites—a Seventh Circuit

opinion and a district-court one—are far afield from this case factually and legally.          See

Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009); Maes v. Folberg, 504 F. Supp. 2d 339 (N.D.

Ill. 2007). No caselaw from this court, the Supreme Court, or any other circuit court established



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No. 15-1665, Lange v. McGinnis, et al.


that McGinnis’s actions were unconstitutional at the time he took them. McGinnis is therefore

entitled to qualified immunity as to Lange’s § 1983 claim.

       We reverse the district court’s order denying qualified immunity to McGinnis, and

remand the case for further proceedings consistent with this opinion.




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