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Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 2007 · 3 courts · …qualitatively different from a custodial parent tapping a minor child's conversations within the family home. at p. 1535 ✓ Topic ↗
77 citation events (28 in the last 25 years) across 26 distinct courts.
Strongest positive: Commonwealth v. F.W. (mass, 2013-04-24)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) Commonwealth v. F.W.
Mass. · 2013 · confidence medium
See Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.), cert. denied, 513 U.S. 929 (1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991), cert, denied, 502 U.S. 1044 (1992); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977).
examined Cited as authority (rule) Babb v. Eagleton (5×) also: Cited "see"
N.D. Okla. · 2007 · confidence medium
Mother and Stepfather rely on Newcomb v. Ingle, 944 F.2d 1534, 1535 (10th Cir.1991), for the proposition that Title III cannot apply to any alleged interceptions in this case because Mother, a custodial parent, intercepted the Minor Children’s conversations within their family home.
discussed Cited as authority (rule) Alameda v. State (2×)
Tex. Crim. App. · 2007 · confidence medium
Scheib v. Grant, 22 F.3d 149, 153-55 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Janecka v. Franklin, 843 F.2d 110, 111 (2nd Cir.1988), affirming and approving district court opinion at 684 F.Supp. 24 (S.D.N.Y.1987); Anonymous, 558 F.2d at 679 .
discussed Cited as authority (rule) Alameda, Efrain
Tex. Crim. App. · 2007 · confidence medium
Scheib v. Grant , 22 F.3d 149, 153-55 (7 th Cir. 1994); Newcomb v. Ingle , 944 F.2d 1534, 1536 (10 th Cir. 1991); Janecka v. Franklin , 843 F.2d 110 , 111 (2 nd Cir. 1988), affirming and approving district court opinion at 684 F. Supp. 24 (S.D.N.Y. 1987); Anonymous , 558 F.2d at 679.
cited Cited as authority (rule) Alameda v. State
Tex. App. · 2005 · confidence medium
See Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977). 5 .
discussed Cited as authority (rule) Efrain Alameda v. State
Tex. App. · 2005 · confidence medium
See Scheib v. Grant , 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle , 944 F.2d 1534, 1536 (10th Cir. 1991); Anonymous v. Anonymous , 558 F.2d 677, 679 (2d Cir. 1977). 5: The legislature has recognized that parents are presumed to be appropriate decision-makers, giving parents the explicit legal right to consent to their minor child’s medical care and surgical treatment.
discussed Cited as authority (rule) Smith v. Smith
La. Ct. App. · 2005 · confidence medium
However, we do not find this case to be persuasive authority in this regard, as the issue in Glazner pertained to inter-spousal wiretapping, which is "qualitatively different from a custodial parent tapping a minor child's conversations within the family home." Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir. 1991), cert. denied, 502 U.S. 1044 , 112 S.Ct. 903 , 116 L.Ed.2d 804 (1992).
discussed Cited as authority (rule) State v. Christensen
Wash. · 2005 · confidence medium
See, e.g., Pollock v. Pollock, 154 F.3d 601, 602 (6th Cir.1998); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Janecka v. Franklin, 843 F.2d 110, 110 (2d Cir.1988); Campbell v. Price, 2 F.Supp.2d 1186, 1191-92 (E.D.Ark.1998).
discussed Cited as authority (rule) State v. Christensen
Wash. · 2004 · confidence medium
See, e.g., Pollock v. Pollock, 154 F.3d 601, 602 (6th Cir. 1998); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); Janecka v. Franklin, 843 F.2d 110, 110 (2d Cir. 1988); Campbell v. Price, 2 F. Supp. 2d 1186, 1191-92 (E.D.
discussed Cited as authority (rule) Commonwealth v. Barboza (2×)
Mass. App. Ct. · 2002 · confidence medium
Other courts, focusing on their sense of “Congress’s intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other,” Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991), cert. denied, 502 U.S. 1044 (1992), have relied on the extension telephone exception, 18 U.S.C. § 2510 (5)(a)(i), to uphold the introduction of evidence obtained through taping or eavesdropping within the family home.
discussed Cited as authority (rule) Vieux v. Pepe
1st Cir. · 1999 · confidence medium
See, e.g., Scheib v. Grant, 22 F.3d 149, 153-4 (7th Cir. 1994) (finding that father's monitoring and recording conversations between his child and his ex-wife was encompassed within the ordinary course of business exception); Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir. 1991) (ruling that custodial parent's recording of child's conversations with non-custodial parent was not an illegal interception under the statute); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977) (quoting testimony from the legislative history to the effect that "nobody wants to make it a crime for a father t…
discussed Cited as authority (rule) Vieux v. Pepe
1st Cir. · 1999 · confidence medium
See, e.g., Scheib v. Grant, 22 F.3d 149, 153-4 (7th Cir.1994) (finding that father’s monitoring and recording conversations between his child and his ex-wife was encompassed within the ordinary course of business exception); Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991) (ruling that custodial parent’s recording of child’s conversations with non-custodial parent was not an illegal interception under the statute); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (quoting testimony from the legislative history to the effect that “nobody wants to make it a crime for a fat…
discussed Cited as authority (rule) Blake v. Wright
6th Cir. · 1999 · confidence medium
See Berry v. Funk, 146 F.3d 1003 (D.C.Cir.1998); see also Davis v. Gracey, 111 F.3d 1472, 1481-84 (10th Cir.1997) (implying that the good faith defense under the Electronic Communications Privacy Act, formerly Title III, and qualified immunity are separate defenses); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991) (implying that Title III is a separate and distinct claim from § 1983 qualified immunity); but cf. Kilgore v. Mitchell, 623 F.2d 631, 633-34 (9th Cir.1980) (holding that if a defendant meets the statutory good faith defense under Title III, then the defendant also sufficiently…
discussed Cited as authority (rule) Blake v. Wright
6th Cir. · 1999 · confidence medium
See Berry v. Funk, 146 F.3d 1003 (D.C.Cir.1998); see also Davis v. Gracey, 111 F.3d 1472, 1481-84 (10th Cir.1997) (implying that the good faith defense under the Electronic Communications Privacy Act, formerly Title III, and qualified immunity are separate defenses); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991) (implying that Title III is a separate and distinct claim from § 1983 qualified immunity); but cf. Kilgore v. Mitchell, 623 F.2d 631, 633-34 (9th Cir.1980) (holding that if a defendant meets the statutory good faith defense under Title III, then the defendant also sufficiently…
cited Cited as authority (rule) Robert Waterbury v. State of Kansas and Michael F., Powers, Morris County Attorney
10th Cir. · 1992 · confidence medium
Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991), cert. denied, 112 S.Ct. 903 (1992); Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir.1988).
cited Cited as authority (rule) Stump v. Gates
D. Colo. · 1991 · confidence medium
Id.; Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Lee v. Estes Park, 820 F.2d 1112, 1114 (10th Cir.1987).
cited Cited "see" Campbell v. Price
E.D. Ark. · 1998 · signal: see · confidence high
See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991).
discussed Cited "see" Scheib v. Grant (2×)
N.D. Ill. · 1993 · signal: see · confidence high
See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 903 , 116 L.Ed.2d 804 (1992); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977).
discussed Cited "see" Catherine A. Heggy v. T.L. Heggy (2×)
10th Cir. · 1991 · signal: see · confidence high
See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991).
discussed Cited "see, e.g." Barboza v. Bissonnette
D. Mass. · 2006 · signal: see, e.g. · confidence medium
See e.g., Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991) (custodial parent’s taping of minor child’s telephone conversation within the home did not violate Title III); Pollock v. Pollock, 154 F.3d 601, 607-610 (6th Cir.1998) (reviewing cases from different circuits all finding no violation of Title III, albeit on varying grounds).
discussed Cited "see, e.g." State v. Capell
Or. Ct. App. · 1998 · signal: see, e.g. · confidence medium
See, e.g., Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991), cert den 502 U.S. 1044 , 112 S.Ct. 903 , 116 L.Ed.2d 804 (1992) (holding "[t]here is no persuasive reason why Congress would exempt a business extension and not one in the home.
discussed Cited "see, e.g." Ali v. Douglas Cable Communications
D. Kan. · 1996 · signal: see, e.g. · confidence medium
See, e.g., Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991), ce rt. denied, 502 U.S. 1044 , 112 S.Ct. 903 , 116 L.Ed.2d 804 (1992); Royal Health Care Services v. Jefferson-Pilot Life Insurance Co., 924 F.2d 215, 217 (11th Cir.1991); Watkins v. L.M.
discussed Cited "see, e.g." PBA Local No. 38 v. Woodbridge Police Department
D.N.J. · 1993 · signal: see, e.g. · confidence medium
See, e.g., Newcomb v. Ingle, 944 F.2d 1534, 1535 (10th Cir.1991), cert. denied,U.S.-, 112 S.Ct. 903 , 116 L.Ed.2d 804 (1992); Hatfield v. Hayes, 877 F.2d 717, 718 (8th Cir.1989); Scutieri v. Paige, 808 F.2d 785 , 787 (11th Cir.1987); Pavlak v. Church, 727 F.2d 1425, 1426 (9th Cir.1984); Bodunde, No. 93-C-1464, 1993 WL 189941 , 1993 U.S.Dist.
Retrieving the full opinion text from the archive…
Brent K. Newcomb
v.
Nancy J. Ingle, Individually and as Assistant County Attorney of the County of Crawford, State of Kansas Jean A. MacKey Howard Q. Day
90-5068.
Court of Appeals for the Tenth Circuit.
Aug 28, 1991.
944 F.2d 1534
1991 U.S. App. LEXIS 19878
Cited by 3 opinions  |  Published

944 F.2d 1534

60 USLW 2145

Brent K. NEWCOMB, Plaintiff-Appellant,
v.
Nancy J. INGLE, Individually and as Assistant County
Attorney of the County of Crawford, State of
Kansas; Jean A. Mackey; Howard Q. Day,
Defendants-Appellees.

No. 90-5068.

United States Court of Appeals,
Tenth Circuit.

Aug. 28, 1991.

Brent K. Newcomb, pro se.

Frederick R. Smith, Pittsburg, Kan., for defendant-appellee Nancy J. Ingle.

Vernon D. Grassie, Girard, Kan., for defendants-appellees Jean A. Mackey and Howard Q. Day.

Before ANDERSON and TACHA, Circuit Judges, and KANE,[*] District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

[*~1534]1

Plaintiff Brent Newcomb appeals from an order of the district court granting defendants' motions for summary judgment.[1]

2

Defendant Jean A. Mackey, with the help of her father, defendant Howard Q. Day, intercepted and recorded telephone conversations of her minor son Brent, within her own home without Brent's knowledge or consent. Brent's parents were divorced at the time, and Mackey had custody of Brent and his younger brother.

3

In one instance, Mackey recorded a conversation in which Brent's father, Harold Newcomb (Newcomb), instructed Brent and his brother as they set fire to their home. Thereafter, Mackey told a fire investigator of the existence of the tapes. After the tapes were recovered, Mackey sent them to defendant Nancy Ingle, an assistant county attorney. Based on the recorded conversation, Ingle brought criminal charges against Newcomb resulting in a conviction. In juvenile court, Newcomb stipulated to the severance of his parental rights. All charges against Brent were dismissed after Newcomb and Mackey stipulated to the designation of Brent and his brother as children in need of care.

4

Upon reaching majority, Brent brought this suit alleging violations of 18 U.S.C. §§ 2510-2520, 42 U.S.C. § 1983, and the first, fourth, fifth, sixth, and fourteenth amendments. Brent alleged that Ingle intercepted conversations between him and Newcomb, unlawfully arrested him, denied him counsel, forced him to sign away his rights, and incarcerated him. Brent also alleged that Mackey and Day unlawfully installed the wiretap device; disclosed the contents of Brent's conversations with Newcomb to friends and relatives; and, on the day of the fire, intercepted the conversation "for the purpose of commiting (sic) criminal or tortuious (sic) act." Rec. Vol. I., No. 1 at 10.

5

Defendants filed motions for summary judgment which the district court granted. The court held that Brent had failed to prove any causal connection between the recordings and his alleged injury: "What happened to you was brought about because of the actions that you and your brother took, that was the source of your problem or any damage that occurred to you, not the fact that your mother recorded those conversations." Rec.Supp. Vol. I at 38. The court found "that reasonable men and women could not differ, that there is totally lacking the willfulness of intentional wrongdoing or reckless disregard of known legal duty that is a requisite to the willfully component of Section 2511 of Title 18." Id. at 40. The court held that Ingle had acted at all times within the confines of her official duties and did not in any way act in a malicious manner. Therefore, Ingle was entitled to qualified immunity.

[*~1535]6

The issue here is whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, applies in a situation such as this where a minor child sues his custodial parent for telephone interceptions made within the family home. Title III makes it unlawful for any person to "willfully intercept[ ], endeavor[ ] to intercept, or procure[ ] any other person to intercept or endeavor to intercept, any wire or oral communication." 18 U.S.C. § 2511(1)(a).[2] A civil cause of action is provided by 18 U.S.C. § 2520.

7

No cases address the situation we have here. The closest analogy is where spouses have tapped one another,[3] but that is still qualitatively different from a custodial parent tapping a minor child's conversations within the family home.

8

We hold that the interception at issue here is not reached by Title III. The interception of a family member's telephone conversations by use of an extension phone in the family home is arguably permitted by a broad reading of the exemption contained in 18 U.S.C. § 2510(5)(a)(i).[4] There is no persuasive reason why Congress would exempt a business extension and not one in the home. The difference between listening on the extension and tapping the line within the home in the context here is not material. "[W]e think the (5)(a)(i) exemption is indicative of Congress's intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other." Simpson, 490 F.2d at 809.[5] Further, because no violation of Title III by Mackey is present, no violation by Day or Ingle can be established.

9

Brent's allegations against Ingle under 42 U.S.C. § 1983 do not support a holding of liability under that section. Although unclear, it appears from Brent's complaint that he is complaining about Ingle's decision not to prosecute him after charges had been filed. Brent does not dispute Ingle's assertions that because of his parents' stipulations the tapes were not used in any juvenile court proceedings. Ingle decided not to prosecute Brent and all charges were dropped as a result of the stipulations. Ingle is entitled to absolute immunity from liability on that decision. See Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir.1988). Ingle is also entitled to absolute immunity for her actions taken prior to deciding not to prosecute, such as reviewing and evaluating the tapes. See Id.

10

Likewise, no action under section 1983 lies against Mackey and Day.

11

[I]n order to hold a private individual liable under § 1983, it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State.

12

Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.1987). No such showing has been made here. Mackey and Day's action in installing the wiretap and Mackey's actions in recording the conversations were taken without the knowledge or aide of any state actor.

13

Brent alleged violations of the first, fourth, fifth, and sixth amendments. Construing Brent's complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), Brent has failed to state a claim regarding any alleged constitutional violations under the facts presented.

[*~1536]14

The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

*

Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument

2

The statute has since been amended to substitute the word "intentionally" for the word "willfully." We proceed under the statute as in effect at the time of the alleged violation

3

The circuits are split on this issue. Compare Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); with Kempf v. Kempf, 868 F.2d 970 (8th Cir.1989); Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984); United States v. Jones, 542 F.2d 661 (6th Cir.1976)

4

18 U.S.C. § 2510(5)(a)(i) provides that:

"electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than--

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business;....

5

While comments made during the legislative process are not in any sense controlling, nevertheless our holding above is reflective of what appears to be the general understanding of those involved in the legislative process regarding the scope of the statute in situations such as that present here. See, e.g., Anonymous, 558 F.2d at 679 (quoting from the Hearings on the Anti-Crime Program Before Subcomm. No. 5 of the House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967): "I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem." Comment by Professor Herman Schwartz testifying for the A.C.L.U.)