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GINTER v. STALLCUP

February 24, 1986

NORMA GINTER, Plaintiff
v.
JAMES STALLCUP, Individually and in his official capacity, LAWRENCE COUNTY, ARKANSAS, JAMES BLASINGAME, JACK KNOX, BOONE COUNTY, ARKANSAS, TOM LEE, CITY OF RAVENDEN, ARKANSAS, and ROY NORVELL, Defendants



The opinion of the court was delivered by: EISELE

Garnett T. Eisele, United States District Judge:

 MEMORANDUM AND ORDER

 The defendants, James Blasingame and Jack Knox, agents for the Federal Bureau of Investigation, have moved to dismiss the complaint against them pursuant to Rule 12 and Rule 4 of the Federal Rules of Civil Procedure. They moved for dismissal essentially on the seven grounds set forth in their prayer, to wit:

 
1. Plaintiff has not satisfied the technical requirements of service of process of Rule 4, Fed.R.Civ.P.
 
2. The complaint should be dismissed for failure to comply with Rule 8(a), Fed.R.Civ.P., and because it fails to state a claim upon which relief can be granted as concerns a Bivens - type action or a Title 42, U.S.C., Section 1983 or 1985 suit.
 
3. The complaint should be dismissed as plaintiff lacks standing to assert the claim and is not the real party in interest.
 
4. The complaint should be dismissed as Title 42, U.S.C., Section 1983 is not applicable to Federal officials.
 
5. The F.B.I. defendants are entitled to immunity.
 
6. The F.B.I. defendants cannot be held liable on a theory of respondeat superior.

 The Court agrees with the plaintiff that she has satisfied the technical requirements of service of process of Rule 4 in the light of the record that is before the Court.

 In plaintiff's response to the motion to dismiss, plaintiff asserts that it has stated the following claims under which relief can be granted:

 
1. Destruction of personal property by acts of arson by federal and state officials;
 
2. False imprisonment;
 
3. Malicious prosecution;
 
4. Denial of her U.S. Constitutional Right to consult her attorney;
 
5. Denial of her U.S. Constitutional Right to a fair trial; and
 
6. Severe mental anguish due to all of the above.

 In resisting the defendants Blasingame and Knox's motion to dismiss any Bivens-type action, plaintiff states that her claims are more substantial than those in Bivens ; that she suffered more humiliation by being arrested in the presence of her family; that she was falsely accused, arrested, imprisoned, poorly treated, forced to watch the distruction of irreplaceable accumulated possessions of her lifetime, and forced to observe her husband's anguish.

 The Court has carefully examined plaintiff's original complaint to identify the factual allegations that relate to the defendants James Blasingame and Jack Knox, agents of the Federal Bureau of Investigation. Paragraphs I - III do not mention any of the defendants by name. The allegations in those paragraphs and in paragraph IV charge that on June 3, 1983, the home in which plaintiff had been living "was set on fire by the activities of numerous defendants" while the defendants "were attempting to capture the fugitive Gordon Wendell Kahl." Plaintiff claims that her "personal possessions including but not limited to, clothing, furniture, food, family heirlooms, and pictures of children were destroyed by the alleged acts of arson," which acts were "premeditated." Paragraph VI states:

 
The operation was under the control of James Blasingame, the head of the F.B.I. for the entire State of Arkansas, with headquarters in Little Rock, Arkansas, where the acts complained of herein were planned and coordinated to the limited extent that they could be called coordinated.

 Paragraph VII charges:

 
The operation was either so careless as to constitute negligence and/or reckless burning . . . and/or gross negligence, inasmuch as the methods used to capture the alleged fugitive did not meet the minimum standards of conduct and procedures required of law enforcement officials; or in the alternative, it was the deliberate plan of the law enforcement officials . . . .

 The plaintiff can only assert claims personal to her and as to which she has standing to sue. Paragraphs VIII, IX and X, (with the exception of the references to the destruction of her personal property in paragraph X) raise issues that the plaintiff has no standing to raise and may be ignored for the purpose of the motions under consideration.

 Paragraph I under the caption "CIVIL RIGHTS JURISDICTION" states:

 
The civil rights of the Plaintiff have been violated pursuant to 42 U.S.C. 1983 statutes and must be litigated in Federal Court. After her apprehension and arrest by James Stallcup while she was in the custody of Sheriff Roy Norwell of Boone County during her trial in the harboring case (in which she was represented by Court appointed counsel, Charlie Karr) she was denied access to the undersigned, her attorney of record in her capital murder case.

 Paragraph I under the caption "CONSTITUTIONAL RIGHTS" charges that the prosecuting attorney, James Stallcup, conspired with other officials "to date unknown" to deny plaintiff certain of her rights. The defendants, Blasingame and Knox, are in no way mentioned or implicated in these allegations. Under the caption "FACTUAL ALLEGATIONS" there are six separate paragraphs. Paragraph II repeats that:

 
"all worldly possessions of the Plaintiff were destroyed either by the negligent and/or grossly negligent acts or omissions of the parties complained of herein . . . .

 Paragraph III provides:

 
"James Blasingame, the highest law enforcement official of the United States Government present and (others) . . . jointly governed the conduct of all persons present, or in the alternative, neglected to fulfill their responsibilities as law enforcement officials to properly supervise the scene. The conspiracy was in part organized and planned by F.B.I. agent, Jack Knox, code named "Fort Knox".

 It is interesting to note that the last sentence quoted contains the only specific reference in the complaint to Jack Knox other than the allegation as to his residence address. Paragraph IV contains the following sentence:

 
A conspiracy of conspirators including but not limited to, the Defendants cited herein arose to leave Norma Ginter to face the charges for the death of the fugitive and the Sheriff . . . to protect the illegal personal interests of the Defendants.

 Paragraph V appears to complain about rights denied to Norma Ginter in connection with the state charge of capital murder. Its allegations cannot fairly be read to implicate the defendants Blasingame or Knox. Paragraph VI complains about the actions of James Stallcup.

 Under the caption "DAMAGES," plaintiff states, inter alia:

 
She suffered the loss of all of her life time personal possessions which had a fair market value of not less than FIVE THOUSAND DOLLARS ($ 5,000.00) . . . .

 The Court has attempted to identify the factual allegations which might, when viewed in the light most favorable to the plaintiff, state some claim or claims upon which relief might be granted against defendants Blasingame and Knox.

 The defendants Blasingame and Knox have also filed an alternative "motion for summary judgment" contending that there is no genuine issue of material fact which would preclude the entry of summary judgment in their favor as a matter of law. In support of their motion for summary judgment, they have submitted the following:

 
Exhibit 1: Affidavit for search warrant with attachments including a copy of the F.B.I. "WANTED" poster on Gordon Wendell Kahl.
 
Exhibit 2: Statement of James T. Blasingame.
 
Exhibit 3: Statement of Jack D. Knox.
 
Exhibit 4: The Motion to Suppress Illegally Obtained Evidence filed in the case of U.S.A. v. Leonard Ginter and Norma Ginter, Western District of Arkansas No. 83-3009, on August 19, 1983, on behalf of Leonard and Norma Ginter, together with an unsigned copy of the "order on motion to suppress" in the same case.
 
Exhibit 5: Defendants' Memorandum of Law in Support of Motion to Suppress filed August 8, 1983, on behalf of Leonard and Norma Ginter, among others.
 
Exhibit 6: Memorandum Opinion filed September 29, 1983, of the Honorable H. Franklin Waters, discussing and disposing of some nine different motions including the Motion to Suppress Illegally Seized Evidence and the motion of the Ginters to suppress incriminating statements.
 
Exhibit 7: The order of Judge Waters filed September 29, 1983, which, inter alia, denied the Ginters' Motion to Suppress Illegally Seized Evidence and their motion to suppress incriminating statements.
 
Exhibit 8: This Court's Memorandum and Order, filed March 13, 1984, in the case of Stephens v. Richard Burgess, et al., discussing, inter alia, the case of Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959).
 
Exhibit A: A photocopy of pages 1217-1230 of certain discussions between court and counsel including an offer of proof.
 
Exhibit B: The testimony of one Thomas David Lee.

 The plaintiff has also filed a "Supplemental Response" to the defendants' Motion for Summary Judgment to which she attaches the following exhibits:

 
Exhibit C: Affidavit of the plaintiff, Norma Ginter.
 
Exhibit D: Excerpts from the testimony of Mr. Dero Downing.
 
Exhibit E: Affidavit of Roy Jessie Paul.

 On October 23, 1985, the defendants, Blasingame and Knox, filed a "Response to Plaintiffs' Response" to the Motion for Summary Judgment. And on November 12, 1985, said defendants also filed another "Response." This latter document points out that the house which was used to harbor Mr. Kahl was not the property of the plaintiff, Ms. Ginter.

 Finally, on December 3, 1985, plaintiff filed "Clarification of Errors in the Response of James Blasingame and Jack Knox." For the first time the plaintiff contends that she has "some property rights to the real property maintaining an option to purchase the property" and "Had some type of equitable ownership in the real property." To clarify the matter, the Court wrote to the attorneys on January 10, 1986, seeking to determine if Ms. Ginter was pursuing any claim for any interest in the real property. Her attorney responded, "Ms. Ginter filed suit for personal property loss. She did not file suit for real property loss."

 In paragraph VI of the "Clarification" of the plaintiff, we find the following statement:

 
The undisputed evidence is that defendant Blasingame was the senior law enforcement official there present, and that Agent Knox was involved in a continuing scheme, (see State of Arkansas vs. Ginter, CR-83-37, transcript page 326 and page 340), including perjury (see U.S. vs. Ward, 703 F.2d 1058), and other crimes in order to violate the constitutional rights of individuals in his district in Arkansas.

 The Court first observes that it has examined the items referred to within parenthesis in the above quote and finds that they add nothing in support of the allegation that "Agent Knox was involved in a continuing scheme."

 From a review of the complaint and the submissions of the parties in connection with the motion to dismiss and motion for summary judgment it is quite clear that the plaintiff's complaint against Mr. Blasingame and Mr. Knox is limited to their involvement at and near the scene of the Ginter residence on the afternoon and evening of June 3, 1983. It is important in this connection to examine the affidavits of Mr. Blasingame, Mr. Knox and Ms. Ginter together with the excerpts from the testimony of Mr. Thomas David Lee, excerpts from the testimony of Mr. Dero D. Downing, and the affidavit of Mr. Roy Jessie Paul.

 The pertinent portions of plaintiff Ms. Norma Ginter's affidavit states:

 
On the afternoon of June 3, 1983, my husband, Leonard Ginter, and I were working on the emergency brakes of the Dodge Omni.
 
On the evening of June 3, 1983, shortly before 6:00 p.m., my husband left our home to go fishing. He was driving our Dodge Omni. Shortly after that, I heard a noise as if a vehicle were approaching. I thought Leonard might have forgotten something. I heard a dog barking. I went to the garage door to see what was happening. I had not heard anyone calling for me.
 
I saw at least ten (10) men dressed in camoflauge suits pointing guns at me. I recognized Lawrence County Sheriff, Gene Matthews, who said to me in a low voice, 'I'm so proud that you came out.'
 
I saw that two (2) officers had Leonard in handcuffs. One (1) tall and thin officer said he was with the F.B.I. Another officer came and grabbed me quickly and handcuffed me, with my hands behind my back.
 
I was afraid. I did not answer when I was asked if anyone else was in the house.
 
Both Leonard and I were forced to lay on the ground. I was close to the garage. I was laid on my back, with my arms behind me. The ground was cold and my arms were hurting from that position. I heard shooting. I felt vibrations in the air from bullets passing.
 
I was so scared and uncomfortable that I asked if I could turn over. The officer said 'Yes' but no one helped me, so I managed to turn over my myself. I closed my eyes because I was afraid I was going to die. I heard one of the officers say, 'Oh shit, she passed out.'
 
I was wearing jeans, a tank top and carpet slippers. I was grabbed and dragged - half walking, half being pulled - over brushy overgrown ground to an unmarked car. During this time I lost one (1) of my slippers. I told the officer my slipper was lost. The rough ground was hurting my foot. One (1) of the officers said, 'You don't need the damn slipper.' I was put in the car and my husband was handcuffed to the doorpost. The car was guarded by two (2) officers with guns.
 
I heard more shots. I could see a car go past the car where I was being held. I heard a man shout 'We need MORE FUEL!'
 
We were made to walk up the hill to a police car. I smelled smoke and I could see smoke on my left, coming from around my garage.
 
Leonard and I were taken in a police car to Walnut Ridge.

 In her "Response to Defendants, Blasingame and Knox's Motion for Summary Judgment," filed October 1, 1985, it is stated in paragraph XIII that "Norma Ginter saw the kerosene placed upon the roof of her home and hereby submits testimony to that effect. See Exhibit 'C'.)" However, as noted above, the only possibly related reference in Ms. Ginter's affidavit is the statement "I heard a man shout, 'We need more fuel!'" Nevertheless the plaintiff does have testimony that a can of diesel fuel or kerosene was placed over a vent on the roof of the house. See the testimony of Mr. Thomas David Lee, who served as the City Marshal for the city of Ravenden, and also as a deputy sheriff for Lawrence County. Mr. Lee states that when he stopped at the road block he heard a call over the radio that "they needed some gas." He requested the fuel from a gentleman who lived in a house a mile or so from the road block. At the time that he obtained the fuel he did not know what it was to be used for. When he arrived at the scene, F.B.I. Agent Jerry King asked him if he and Arkansas State Trooper Steve Huddleston could get the fuel in through the vent on the roof of the house. They responded that they could. Mr. Lee states that he arrived at the actual scene around 6:15 p.m.; he had not heard a shot fired before arriving, but that Agents King and some other agent "tried to shoot the fan on top of the vent, - tried to shoot it off." Mr. Lee states that he and Trooper Huddleston put the can over the vent. He was asked, "how it was going to be gotten down into the vent and into the house?" His reply was: "Well after, after he put it over there, and backed off, and they said they were going to fire into the can and Trooper Huddleston fired two shots into the can." Mr. Lee estimates the vent was from 8 to 12 inches in diameter and the can "set right up on top of it."

 Mr. Lee was also asked if he saw anybody throw a tear gas canister or a grenade into the house. He answered "If I'm not mistaken, it was two tear gas grenades and one smokes." He did not hear any loud explosion after they were dropped in, apparently because they were not "the kind of canisters that would explode."

 The testimony of Mr. Dero D. Downing, an F.B.I. agent, was that he knew that everything in the residence, for all practical purposes, had been destroyed. He knew there was a fire at the house. To his knowledge it was caused by "tear gas, things of that nature." He testified also that "there was some talk of some accelerant, possibly kerosene, being used." He does not recall who told him that. He believes that Special Agent Jim Handley and Special Agent Crouch and "several other individuals" were standing around when the statement was made.

 Mr. Roy Jessie Paul has worked for the Houston (Texas) Fire Department since December 27, 1971, and since October 3, 1981, he has been a State Certified Arson Investigator. He has had 120 hours of classroom training in arson as well as on-the-job-training, and has investigated between 500 and 1000 fires.

 According to his affidavit, Mr. Paul on August 9, 1983, investigated the remains of the Smithville, Arkansas home regarding the fires which occurred on June 3, 1983. He selected samples of burned material for laboratory testing for the presence of accelerants. He had the samples tested by a chemist, Mr. Floyd McDonald, of the Houston Texas Police Crime Laboratory. His affidavits concludes:

 
A sample of the material taken from the vent of the Ginters' home was found to contain an incendiary substance which indicated that the fire was intentionally set or accelerated.

 Mr. Paul's final statement is that his training "indicates that no law enforcement purpose would be served by the addition of accelerants to a residence." The defendants' submissions, just reviewed, would clearly support a finding that kerosene had been used at the direction of F.B.I. Agent Jerry King. In fact, it appears that the use of the kerosene as described by the witness Lee may be conceded even though Mr. Blasingame may have been unaware of it before the fact. See discussion below.

 Before reviewing the affidavits of defendants Blasingame and Knox it is important to put the suggested factual issues in context. The defendants, Blasingame and Knox, contend that they are entitled to summary judgment because, inter alia, of the doctrine of good faith immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), it is stated that qualified immunity may be demonstrated in motions for summary judgment to "permit the resolution of many insubstantial claims . . . and to avoid subjecting government officials either to the cost of trial or to the burdens of broad-reaching discovery." (at p. 817).

 The case of Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) is instructive for our purposes. In 1970, Attorney General John Mitchell authorized a "warrantless" wiretap on the telephone of Professor William Davidon, a Haverford College physics professor who was a member of a group known as the East Coast Conspiracy to Save Lives. The F.B.I. had learned that this organization had made plans to blow up heating tunnels linking federal office buildings in Washington, D.C., and had also discussed the possibility of kidnapping National Security Advisor Henry Kissinger. The wiretap was authorized to gather intelligence involving domestic threats to the national security. The wiretaps stayed in place from November 1970 until January 6, 1971. It was not until 1972 that the United States Supreme Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security. U.S. v. U.S. District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972).

 Forsyth sued Mitchell and others alleging that the surveillance violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Upon motion for summary judgment, Mitchell contended that the decision in Keith should not be applied retroactively and that he was entitled to either absolute prosecutorial immunity or to qualified or "good faith" immunity, the latter under Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). The district court, while rejecting Mitchell's claim of absolute immunity, found that he was entitled to assert a qualified immunity and could prevail if he proved that he acted in good faith. Accordingly, the court denied the motion for summary judgment. This ruling was appealed to the Third Circuit which remanded for further fact finding on the purpose of the wiretap. The district court conducted the fact finding and again concluded that Mitchell was not entitled to absolute prosecutorial immunity. At the same time it reconsidered its ruling on qualified immunity in the light of Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), a case in which, according to Justice White's opinion in Mitchell :

 
This Court purged qualified immunity doctrine of its subjective components and held that "governmental officials performing discretionary functions, generally 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."

 The district court reviewed Mitchell's argument under this standard, granted Forsyth's motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Mitchell again appealed. The Third Circuit agreed with the district court that Mitchell did not have absolute immunity. With respect to the denial of qualified immunity it held that the district court's order was not appealable under the collateral order doctrine. It therefore remanded the case to the district court for further proceedings. Mitchell's petition for certiorari to the Supreme Court was granted.

 The Supreme Court, Justice White delivering the opinion of the Court, agreed that Mitchell was not entitled to absolute immunity. Next it held that the district court's denial of qualified immunity was an appealable order. It then reached the issue of Mitchell's claim of qualified immunity. Justice White begins his discussions of this issue as follows:

 
Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U.S., at 818-819, 102 S. Ct. at 2738; see also Davis v. Scherer, 468 U.S., 183, 104 S. Ct. 3012, , 82 L. Ed. 2d 139 (1984). Forsyth complains that in November 1970, Mitchell authorized a warrantless wiretap aimed at gathering intelligence regarding a domestic threat to national security - the kind of wiretap that the Court subsequently declared to be illegal. Keith, supra. The question of Mitchell's immunity turns on whether it was clearly established in November, 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not.

 The Court examined the status of the law at the time of Mitchell's decision to install the wiretap. Justice White then concluded that:

 
Of course, Keith finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security. But whatever the agreement with the Court's decision and reasoning in Keith may be, to say that the principle Keith affirmed had already been "clearly established" is to give that phrase a meaning that it cannot easily bear. The legality of the warrantless domestic security wiretap Mitchell authorized in November 1970, was, at that time, an open question, and Harlow teaches that officials performing discretionary functions are not subject to suit when such questions are resolved against them only after they have acted. The District Court's conclusion that Mitchell is not immune because he gambled and lost on the resolution of this open question departs from the principles of Harlow. Such hindsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive fact is not that Mitchell's position turned out to be incorrect, but that the question was open at the time he acted. Hence, in the absence of contrary directions from Congress, Mitchell is immune from suit for his authorization of the Davidon wiretap notwithstanding that his actions violated the Fourth Amendment.

 So the question here is: did the actions of Mr. Blasingame or Mr. Knox "violate clearly established statutory or constitutional rights of which a reasonable person would have known?" Harlow v. Fitzgerald. The question requires the Court to identify the actions of Mr. Blasingame and Mr. Knox of which Ms. Ginter complains. We have already reviewed the allegations of Ms. Ginter's complaint. We now look at the affidavits of Mr. Blasingame and Mr. Knox.

 We first take up the affidavit of Mr. Knox because it appears therefrom that he was not even present at the scene on June 3, 1983. Nor does it appear that he had any knowledge of the use of, or the intention to use, any flammable substance. Mr. Knox states that he is a Special Agent of the F.B.I. and has been such since 1963. He has been assigned to the Fayetteville office since 1974. On May 30, 1983, he was asked to participate in the federal investigation of Gordon Wendall Kahl a fugitive who was charged with the murders of two deputy U. S. marshals. He interviewed Karen Russell Robinson on May 30, 1983, and was informed by her that her father, Arthur Russell and others had harbored Mr. Kahl in the Mt. Home, Arkansas, area. Mr. Knox reported this information to the Little Rock office of the F.B.I.

 On June 1, 1983, Karen Robinson informed Mr. Knox that Mr. Kahl had departed the Mt. Home, Arkansas, area at approximately 10:00 a.m. on May 30, 1983, in the company of "Leonard and Norma," last names unknown, in a small cream-colored foreign car. According to Mr. Knox's affidavit, Ms. Robinson also informed him that Mr. Kahl was in possession of various firearms and planned to travel to Texas to obtain automatic weapons to take to Wyoming or Montana. Mr. Knox passed this information along to the Little Rock F.B.I. office. The last two paragraphs of Mr. Knox's affidavit read as follows:

 
7. I was not present at and did not participate in the subsequent search of the residence of Norma Ginter on June 3, 1983, as I was tasked by my superiors to remain in the Mountain Home, Arkansas, area. I neither prepared the search warrant for the Ginter residence nor participated in the planning of the execution of that warrant.
  
8. All actions taken by me in connection with the Kahl investigation and relating to the plaintiff, Norma Ginter, were performed within the scope of my employment, and with a good faith reasonable belief in the lawfulness of my actions. At no time did I conspire with any person to violate the rights of Norma Ginter, Gordon Wendall Kahl, or any person.

  So it appears that Mr. Knox was not a participant in any of the events occurring at or near the Ginter residence near Smithville, Arkansas, on June 3, 1983. Ms. Ginter has submitted no affidavits or testimony to the contrary.

  Mr. Blasingame was involved in some of the events occurring on June 3, 1983, near the residence of the Ginters. His affidavit is therefore much longer than Mr. Knox's. Mr. Blasingame was the Special Agent in Charge of the Little Rock office of the F.B.I. at the time and had been since 1982. He was asked to participate in the federal investigation of Gordon Wendall Kahl who was then a fugitive charged with the murders of two deputy U.S. marshals. During the course of his investigation he received information indicating that Mr. Kahl was a tax protestor, a federal parole violator and a member of the organization known as "Sheriff's Posse Comitatus," and that he and others on February 13, 1983, killed two deputy U.S. marshals, severely wounded a third marshal, a North Dakota deputy sheriff, and a Medina, North Dakota, police officer at Medina, North Dakota, through the use of automatic weapons.

  On June 1, 1983, Mr. Blasingame received information indicating that Mr. Kahl had been hiding in the North Arkansas area. On June 2, 1983, he received the information reported by Karen Russell Robinson that Kahl had departed the Mt. Home, Arkansas, area at approximately 10:00 a.m. on May 30, 1983, in the company of Leonard and Norma, last name unknown, in a small cream-colored foreign car and that Kahl was reported to be in possession of firearms. On June 3, 1983, he learned that Leonard and Norma could possibly be Leonard and Norma Ginter of Smithville, Arkansas, who were reported to drive a cream-colored Dodge Omni and that Leonard Ginter was a known tax protestor. Shortly thereafter he learned that a 1980 Dodge Omni, bearing Arkansas license no. KAP -- 366 was registered to the Life Science Church, Smithville, Arkansas, the trustee being David Ginter. Mr. Blasingame was also made aware that the Life Science Church was associated with the "Sheriff's Posse Comitatus" to which Kahl belonged. He also was made aware that the Ginters had a son by the name of David. On June 2, 1983, from his position in an airplane, Mr. Blasingame personally observed a small cream-colored Dodge Omni in the driveway of the residence of Norma and Leonard Ginter. On June 3, 1983, he, as affiant, obtained a search warrant authorizing a search of the Ginter residence for federal fugitive Gordon Wendall Kahl.

  The rest of Mr. Blasingame's affidavit which deals with his actions on the site on June 3, 1983, reads as follows:

  
11. A plan was then initiated wherein Lawrence County, Arkansas, Sheriff Gene Matthews, Arkansas State Trooper Ed Fitzpatrick, Deputy United States Marshal Jim Hall, and myself would approach the Ginter residence in an automobile and, from a location affording as much protection as possible, Sheriff Matthews would call the Ginters from the house, as the county sheriff is the only law enforcement officer recognized by the group "Sheriff's Posse Comitatus," to which Kahl belonged. If the Ginters refused to come out, we were to move away from the residence and periodically continue our efforts to contact the Ginters. No one was to approach the Ginter residence at this time. Included in this plan was the assignment of various individuals to back-up and perimeter duties.
  
12. Just prior to the arrival of Sheriff Matthews, State Trooper Fitzpatrick, Deputy United States Marshal Hall and myself at the Ginter residence, I learned that Leonard Ginter was stopped exiting the driveway of the Ginter residence in his cream-colored Dodge Omni. I arrived at the Omni and observed Ginter to have a rifle and was told he also had a cocked pistol.
  
13. At this time Leonard Ginter advised me that Norma Ginter, and nobody else, was in the Ginter residence. He indicated he would be willing to call Norma Ginter from a position near the front of the garage of the residence and have her exit the residence.
  
14. Sheriff Matthews, State Trooper Fitzpatrick, Deputy United States Marshal Hall, Leonard Ginter and myself then proceeded to the front of the garage, and from there Ginter notified his wife to come out as the "FBI" wanted to talk to them.
  
15. Norma Ginter exited the residence and when asked stated nobody else was in the residence.
  
16. As I was interviewing the Ginters and about to show them the search warrant authorizing the search of their residence for Kahl, I heard gunfire.
  
17. I immediately accompanied Norma Ginter around the corner of the garage in what appeared to be a safe position.
  
18. Deputy United States Marshal Hall shortly thereafter came from around the same corner of the garage and informed me that Sheriff Matthews had been shot.
  
19. Both Leonard and Norma Ginter were thereafter removed from the area, and believing automatic weapon fire to be emanating from the residence, I concurred with the delivery of teargas projectiles into the Ginter residence.
  
20. I thereafter returned to Leonard Ginter and displayed a wanted flyer with a photograph of Gordon Wendall Kahl to Leonard Ginter who indicated Kahl was in the house alone.
  
21. I returned to a position near the residence and reported Ginter's information to those nearby.
  
22. Due to exposure to teargas, I was forced to leave the immediate area and return to the location where the Ginters then were. Leonard and Norma Ginter were arrested for harboring a fugitive and removed to the Lawrence County, Arkansas, Jail.
  
23. At approximately 7:00 p.m., I learned there was a fire in the Ginter residence and I thereafter ordered a fire truck to be sent from Imboden, Arkansas. At this time I also heard what sounded like thousands of rounds of ammunition exploding in the fire within the Ginter residence.
  
24. At approximately 9:00 p.m., I was advised by Arkansas state officials that charges of murder were being contemplated against Leonard and Norma Ginter for the death of Sheriff Matthews.
  
25. I did not participate in any alleged plan to introduce flammable material into the Ginter residence in an effort to force the occupant out nor did I take any action at ...

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