* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 11/5/96 FOR THE TENTH CIRCUIT

WILLIE ALIRE, LARRY DIAZ,

Plaintiffs-Appellants,

v. STEVE BELL,

Defendant-Appellee, and GENE JOHNSON; JOHN DOE, I THROUGH X; JANE DOE, I THROUGH X,

Defendants. No. 96-2021 (D.C. No. CIV-94-622-JP) (D. N.M.)

ORDER AND JUDGMENT *

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.1 In the district court plaintiffs also claimed that Bell’s actions violated state

law, but did not argue on appeal that the district court erred in ruling against them on that issue. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. T he case is therefore ordered submitted without oral argument. Plaintiffs Willie Alire and Larry Diaz appeal from a district court order granting summary judgment to defendant Steve Bell. In 1992, Bell, a police officer, facilitated the recording of several telep hone conversations between Alire, who was using a cordless telephone, and Diaz , who was using a standard land-line telephone. Bell passed these recordings on to another defendant. Plaintiffs contend that in so doing Bell violated 1 8 U.S.C. § 2511 (prohibiting the unauthorized intentional interception of certain co mmunications), 47 U.S.C. § 605 (prohibiting the unauthorized divulgence of interce pted communications), and their Fourth Amendment right to privacy. 1 The district court held that plaintiffs failed to establish that Bell violated clearly esta blished law, and thus granted his motion for summary judgment on the ground of qualif ied immunity. We affirm. We review de novo the grant of summary judgment; ho wever, our approach differs from that in other summary judgment rulings because of the qualified immunity defense. Romero v. Fay , 45 F.3d 1472, 1475 (10th Cir. 1995). Once a-3-

defendant raises a qualified immunity defense, the plaintiff must demonstrate that the defendant violated a constitutional or statutory right that was clearly established at the time of the challenged conduct. Albr ight v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995). To satisfy this burde n “the plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it.” Romero , 45 F.3d at 1475. The plaintiff must demonstrate a substantial corres pondence between the conduct in question and prior law allegedly est ablishing that the defendant’s actions were clearly prohibited. The “ contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed. 2d 523 (1987). While Andersonmakes clear that there is no requirement that the specific action [sic] in question have pre viously been held unlawful, the plaintiff must show that the unlawful ness of the conduct in question is “apparent” in light of preexist ing law. Id. Hannula v. City of Lakewood , 907 F.2d 129, 131 (10th Cir. 1990). If the plaintiff fails to satisfy this burden, the defendant prevail s, and we need not consider whether the defendant established the absence of material issues of fact. See Romero , 45 F.3d at 1475. In this case, we agree with the district court’s co nclusion that plaintiffs failed to show clearly established law that an offi cer, intercepting cordless telephone transmissions, could be liable to any party to the intercepted conversation who might be using a conventional land-line te lephone. Accordingly, we affirm. See McKamey v. Roach , 55 F.3d 1236 (6th Cir. 1995) (affirming the-4-

dismissal of an action for damages under 18 U.S.C. §§ 2510-2521, arising out of the interception of cordless telephone transmission s in 1992 [before 1994 amendments to Title III], when one of the plaintiffs use d a standard land-line telephone during the intercepted conversations); In re Askin , 47 F.3d 100 (4th Cir.) (rejecting arguments under both 18 U.S.C. § 2511 and the F ourth Amendment and affirming a contempt citation arising out of a witn ess’ refusal to answer questions derived from cordless telephone transmissions whichwere intercepted in 1993, when the witness used either a conventional land-li ne telephone or a cellular car telephone during the intercepted conversations), ce rt. denied , 116 S. Ct. 382 (1995). AFFIRMED. Entered for the Court James K. Logan Circuit Judge