Kinsey v. Case

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 2, 1998
• Docket: 97-6289
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 2 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

OTIS KINSEY, an individual; GARY MONTGOMERY, an individual,

Plaintiffs-Appellees, No. 97-6289 v. (D.C. No. CIV-96-1902-C) (W.D. Okla.) WILLIE CASE,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Defendant Willie Case appeals from the district court’s grant of summary

judgment against him on plaintiffs’ claims under Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, which provides a

civil remedy in favor of any person whose wire, oral or electronic communication

is intercepted in violation of the Act. We review the district court’s grant of

summary judgment de novo, see Seymore v. Shawver & Sons, Inc. , 111 F.3d 794,

797 (10th Cir.), cert. denied , 118 S. Ct. 342 (1997), and affirm.

Briefly stated, the undisputed facts are as follows: Plaintiffs and defendant

were teachers at Douglass High School in Oklahoma City. Many classrooms in

the school have telephones that are connected to the principal’s office by

specialized extensions. Over his telephone extension, defendant personally heard

plaintiffs making plans to orchestrate his termination, and he subsequently began

tape recording all of their (and apparently others’) telephone calls from his

extension for a three-month period. He recorded eighteen cassette tapes of phone

conversations, including sixty-six calls between plaintiffs and various third

parties. Plaintiffs did not consent to the recording of their conversations.

Defendant disclosed the tapes of plaintiffs’ conversations to his attorney in this

matter and to another attorney in a related state court proceeding.

In its thorough and well-reasoned decision, the district court determined

that the telephone conversations were wire communications within the meaning of

-2- § 2510(1), that defendant’s interception of them did not fall within the telephone

or business extension exemption created by §§ 2510(4) and (5), that defendant’s

self-defense and good-faith defenses were not recognized defenses to violations

of the Act, and that defendant had disclosed the intercepted communications.

It therefore concluded that defendant violated § 2511(1) with respect to each

plaintiff. The court awarded plaintiffs $10,000 each as statutory damages under

§ 2520(c)(2)(B), plus attorney fees, and enjoined defendant from engaging in

further wiretapping activity and disclosure of intercepted communications.

Defendant raises three arguments on appeal. He contends first that

plaintiffs did not have a legitimate expectation of privacy in their communications

over the school telephone system and that their communications were therefore

not protected by the Act. Defendant, however, intercepted wire communications,

and “[w]ire communications, unlike oral communications, are protected against

interception by electronic, mechanical, and other devices regardless of the

speaker’s expectation of privacy.” Briggs v. American Air Filter Co. , 630 F.2d

414, 417 n.4 (5th Cir. 1980) (comparing § 2510(1) with § 2510(2)); see also

United States v. Harpel , 493 F.2d 346, 349 (10th Cir. 1974) (recognizing lack of

requirement to prove reasonable expectation of privacy with regard to intercepted

wire communications).

-3- Defendant next contends that his interception of plaintiffs’ telephone

conversations was justified on the grounds of self-defense; that is, he was trying

to protect himself from plaintiffs’ wrongful conspiracy to terminate his

employment. We agree with the district court that this is not a recognized defense

under the statute.

Finally, defendant contends that because he had filed an earlier action

against plaintiffs in state court, “jurisdiction was in the state court and the federal

court should have yielded to the proceedings in state court and [defendant] adopts

and reurges his argument as raised in the Court below.” Appellant’s Br. at 15.

Fed. R. App. P. 28(a)(6) requires that an appellant’s “argument must contain the

contentions of the appellant on the issues presented, and the reasons therefor,

with citations to the authorities, statutes, and parts of the record relied on.” The

rule does not allow the incorporation by reference of arguments made in the

district court. See Graphic Controls Corp. v. Utah Med. Prods., Inc. , 149 F.3d

1382, 1385 (Fed. Cir. 1998); Pitsonbarger v. Gramley , 141 F.3d 728, 740 (7th Cir.

1998), petition for cert. filed , (U.S. July, 8, 1998) (No. 98-5153). We therefore

will not consider this argument.

-4- The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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