Gainor v. Rogers, 973 F.2d 1379 (8th Cir. 1992)

LAY, Senior Circuit Judge.

This is an appeal from the district court’s1 denial of a motion for summary judgment for claims brought against the defendant, police officer Scott Rogers, under 42 U.S.C. § 1983 (1988), for false arrest, use of excessive force, and violation of his First Amendment rights. Rogers sought summary judgment on the ground of qualified immunity. The district court determined that genuine issues of material fact existed and denied the motion.2 We affirm the judgment of the district court.

BACKGROUND

On the afternoon of March 24, 1989, John Michael Gainor was observed by Officer Rogers carrying a twelve-foot by six-foot wooden cross3 through downtown Moor-head, Minnesota and distributing leaflets. Gainor was walking with a companion, Todd Dittmer. Rogers claims to have approached the two men because he suspected Gainor might be intoxicated, soliciting, begging,4 obstructing traffic or otherwise creating a public nuisance. When questioned, Gainor informed Rogers of his walking ministry and his personal quest to carry the cross along the border of the United States to spread his religious message. After obtaining one of Gainor’s leaflets, Rogers asked if Gainor was an ordained minister. Gainor responded affirmatively, and Rogers then asked for identification. Gainor pulled out a copy of the United States Constitution and informed

Rogers that he had the constitutional right not to produce identification.

Gainor and Rogers entered into a debate about Gainor’s right to withhold identification. Gainor eventually requested that Rogers contact his supervisor. Rogers radioed for assistance, and Sergeant Minnie and Officers Forsythe and McCullough arrived shortly. Gainor claims that the officers threatened to arrest him if he did not produce identification. Although the defendants dispute this allegation, Gainor’s companion, Dittmer, was allowed to leave after he acceded to the officers’ requests for identification. Gainor was placed under arrest and forced into a police car.

The manner in which Gainor was arrested is hotly disputed. Gainor claims that he suffered facial abrasions and injuries to his wrist and knee when the officers, without provocation, threw him to the ground, twisted his arms, and kneeled on his back and legs to handcuff him. The officers contend that the level of force used to handcuff Gainor was reasonable because Gainor physically resisted arrest. Gainor was formally charged with disorderly conduct and obstruction of the legal process. Those charges were later dropped and this suit followed.

Gainor’s complaint alleged that the defendant officers lacked probable cause to arrest him, that they used excessive force in facilitating his arrest, and that his First Amendment rights of free exercise of religion and free speech were violated by his warrantless arrest. After a period of discovery, the defendants moved for summary judgment based on qualified immunity from suit.5 The district court denied defendants’ motion, finding issues of material fact with respect to each of the remaining claims.6

DISCUSSION

It is well settled that the denial of a summary judgment motion which asserts qualified immunity from suit is appealable “to the extent that it turns on an issue of law_” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); see also Johnson v. Hay, 931 F.2d 456, 459 (8th Cir.1991); Wright v. South Arkansas Regional Health Center, 800 F.2d 199, 202 (8th Cir.1986).

We note further that the purpose of the qualified immunity defense for a state official is to shield a government official from suit rather than merely to serve as a defense to liability. Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815. Where the defense of qualified immunity is raised to an allegation of illegal arrest under the Fourth Amendment, the focal issue is the objective reasonableness of the officer making the arrest, even though probable cause to arrest is lacking. Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir.1989). The test is “whether a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987).

The district court denied the motion for summary judgment on the defense of qualified immunity by reasoning that a dispute of material fact existed for a jury to determine concerning whether Rogers reasonably believed he had probable cause to arrest the plaintiff. Reviewing a denial of a summary judgment on the basis of qualified immunity, the Ninth Circuit, in Bryant v. United States Treasury Dep't, 903 F.2d 717 (9th Cir.1990), similarly reasoned that whether an officer reasonably believed he or she had probable cause to make an

arrest was a question of fact for the jury unless there was only one reasonable conclusion for a jury to find. The Supreme Court reversed, however, stating:

Hunter v. Bryant, — U.S. -, -, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (citation omitted).

Qualified immunity is best understood by reference to the basic analysis offered by Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). There the Court made clear that the issue on qualified immunity is separate from the merits. The issue on the merits is whether the officer violated the law when the arrest was made, whereas the immunity question is whether the officer violated clearly established law when the arrest was made.

In discussing the appealability of an interlocutory decision denying a motion for summary judgment based on qualified immunity, the Court in Mitchell observed:

Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)) (emphasis added).

Thus, the only concern on appeal from a denial of summary judgment based on qualified immunity is whether a defendant is immune from trial. This issue is ordinarily one of law and not for a jury to determine. Hunter v. Bryant, — U.S. -, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Mitchell once again makes clear what the court’s objective analysis should be on such a motion:

Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (citation omitted) (emphasis added).

In reviewing the denial of the summary judgment on the defense of qualified immunity, Justice White outlined the role of the appellate court:

plaintiff’s version of the facts, nor even determine whether the plaintiffs allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took. To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief; the same is true, however, when a court must consider whether a prosecution is barred by a claim of former jeopardy or whether a Congressman is absolutely immune from suit because the complained of conduct falls within the protections of the Speech and Debate Clause.

Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816 (footnote omitted) (emphasis added).

This same approach is found in Anderson v. Creighton, where the Court observed:

Anderson, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 n. 6 (citation omitted) (emphasis added).

It is important to recognize that in evaluating qualified immunity under a motion for summary judgment the court must examine the information possessed by the officials. This does not mean reopening an inquiry into the official’s subjective intent. See Harlow v. Fitzgerald, 457 U.S. 800, 815-20, 102 S.Ct. 2727, 2736-39, 73 L.Ed.2d 396 (1982). As the Court pointed out in Anderson v. Creighton:

Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. The above question is, of course, the legal issue that the court must resolve. This is an objective question considering the totality of the circumstances existing on the record at that time. If the facts are found to be undisputed, then the court must determine whether a reasonable officer could have believed that his conduct was lawful in light of clearly established law. The touchstone of this analysis is the latter phase. This allows ample room for a good faith mistake by the officer since his conduct must be measured in terms of the belief of a reasonable officer based upon the facts then available to the officer. Obviously, an official cannot merely articulate beliefs or suspicions which have no factual foundation. An officer, for example, could not claim qualified immunity based upon mere suspicion that normal conduct of a citizen indicated to the officer that the individual might be a drug courier. However, if the officer asserted conduct which would give rise to probable cause, this would, if undisputed, provide a defense of qualified

immunity. However, if the plaintiff contested the officer’s observation and offered a factual account which would not justify a reasonable officer to make an arrest, then a material dispute of fact would exist.

Where a genuine issue of fact surrounds the question of the plaintiffs conduct, the trial court must determine whether the “evidence [is] sufficient to create a genuine issue as to whether the defendant in fact committed the acts.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Once a genuine issue of material fact is found to exist, the defense of qualified immunity shielding the defendant from trial must be denied. The cases are legion in this and other circuits which establish that where there are genuine issues of material fact surrounding an arrestee’s conduct it is impossible for the court to determine, as a matter of law, what predicate facts exist to decide whether or not the officer’s conduct clearly violated established law. For example, in Duncan v. Storie, 869 F.2d 1100 (8th Cir.1989), cert. denied, 493 U.S. 852, 110 S.Ct. 152, 107 L.Ed.2d 110 (1989), the issue was whether the plaintiff’s arrest occurred inside or outside his home. If the facts were as the defendant officer alleged, that the plaintiff voluntarily placed himself in a public place, he would have relinquished the expectation of privacy to which he was entitled within his home. The dispute of material fact caused us to affirm the denial of the motion for summary judgment based on qualified immunity. See also Wagenmann v. Adams, 829 F.2d 196, 206 (1st Cir.1987) (factual dispute regarding possession of vehicle registration certificate at time of arrest must be sent to jury to “assess the credibility of witness and to resolve inconsistencies in the evidence.”); Wilson v. Attaway, 757 F.2d 1227, 1236 (11th Cir.1985).

Using the analytical approach outlined in these cases, we initially look to Gainor’s amended complaint which alleges in part as follows:

charges were dropped later that same day.

Appellant’s App. at 186-87.

In the present case, although the plaintiff was charged with violation of two misdemeanors,8 it is now urged on the petition for rehearing that the officer had a right to demand identification of Gainor under Minn.Stat. § 609.506 (1988). The latter law makes it unlawful for an individual to give an officer a false name or information during an arrest or during an investigative stop.9

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court held unlawful the arrest of a suspicious looking man in an alley. The Court observed that “[t]he flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct.” Id. at 51-52, 99 S.Ct. at 2641. The Court further reasoned:

Id. at 52, 99 S.Ct. at 2641.

When examining the plaintiff’s allegations and the evidentiary support contained in the depositions, we find plaintiff’s allegations sufficiently supported by the record to overcome Officer Rogers’ defense that a reasonable officer could believe the arrest was lawful. Plaintiff’s testimony as well as that of his companion, Dittmer, lend sufficient support that Gainor was not guilty of any disorderly conduct and that he was merely “walking around the country with his cross and preaching the Gospel of Jesus.” Amended Complaint, Appellant’s App. at 186. This conduct, if true, does not give rise to reasonable suspicion

of criminal conduct. Brown, 443 U.S. at 51, 99 S.Ct. at 2641.

Officer Rogers disputes Gainor’s factual claim. Rogers now asserts that Gainor was obstructing pedestrian traffic in a manner which gave rise to a suspicion of intoxication.11 The depositions show, as the district court observed, that the arrest did not take place until Rogers’ supervisors were called and Gainor refused to produce his identification. These factual issues give rise to a factual dispute on the merits as to whether Rogers had probable cause to arrest Gainor. Officer Rogers’ testimony as to the facts he had in his possession, however, is to be evaluated under the Mitchell standard in passing on the issue of qualified immunity. Thus, applying the teachings of Mitchell and Anderson, we initially need only look to plaintiff’s allegations to determine whether a reasonable officer could believe that the arrest was lawful under principles of clearly established law. As indicated, this analysis is to be done without any attempt to verify the correctness of plaintiff’s complaint. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. If the court is satisfied that a reasonable officer would or should have known that he or she was violating well established law, discovery may proceed to enable the defense to show that plaintiff’s allegations are not supported by factual evidence. In the present case, we find plaintiff’s factual allegations, although disputed, sufficiently supported by evidentiary proof. If these allegations are true, we think it clear that the allegations support a charge that a reasonable officer, in making the arrest, would or should have known that he was violating clearly established law. It is fundamental that an arrest violates the Fourth Amendment when there exists no reasonable suspicion or probable cause that an individual is engaged in criminal activity. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). It is also fundamental that a lawful arrest may not ensue where the arrestee is merely exercising his First Amendment rights. See, e.g. Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).

Under the present circumstances of the record, we find, although for different reasons than the district court, that the district court’s decision to deny the defendant’s motion for summary judgment on the basis of qualified immunity to stand trial should be affirmed.

EXCESSIVE FORCE

Gainor’s excessive force claim should be analyzed in light of the objective reasonableness standard articulated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).12 The Court in Graham discussed several factors which may aid in the determination of objective reasonableness, including “the severity, of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109

S.Ct. at 1872. We agree with the district court’s analysis of these factors as applied to Gainor’s claim. Gainor’s alleged misconduct was neither violent nor serious. There is little evidence to indicate that Gai-nor posed a physical threat to anyone, and there is a factual dispute as to whether he was “actively” resisting arrest. Viewed in the light most favorable to Gainor, a genuine issue of fact exists as to the reasonableness of the force used against Gainor to secure his arrest.

With respect to Gainor’s final claim, the district court found that Gainor’s First Amendment rights were clearly implicated by the facts of this case. We agree. The First Amendment protects the right to convey religious messages in public forums. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Not only did the act of carrying a large wooden cross by itself suggest Gainor’s intent to express a religious message, it is undisputed that Gainor explained his religious mission to Rogers. The First Amendment also protects Gainor’s right to verbally challenge the police officers’ actions. See City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987) (“The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); Norwell v. City of Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973). To the extent Gainor claims he was arrested solely for spreading a religious message in a manner the officers found “bizarre,”13 or for challenging the officers’ right to demand production of identification, there remains on the merits of this claim genuine issues of material fact.

We affirm the district court’s denial of defendant’s summary judgment motion based upon assertions of qualified immunity. We likewise affirm the district court’s denial of the defendant’s motion for summary judgment on plaintiff’s claims for false arrest, false imprisonment and use of excessive force, as well as plaintiff’s claim for violation of his First Amendment rights.

LOKEN, Circuit Judge,

dissenting.

I respectfully dissent. I believe the majority opinion pays only lip service to the defense of qualified immunity in this close case, the very kind of case for which the defense was intended. I conclude that defendants are entitled to qualified immunity as a matter of law on Gainor’s unlawful arrest and First Amendment claims. I would remand his excessive force claim for further consideration of the qualified immunity issue prior to trial.

To ensure that qualified immunity provides effective protection against unnecessary litigation risk and expense, the Supreme Court has adopted a standard of objective reasonableness — public officials are entitled to qualified immunity when their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity is a question of law that “ordinarily should be decided by the court long before trial.” Hunter v. Bryant, — U.S. -, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991).

However, freedom from unnecessary trials .is not the only purpose served by the qualified immunity defense; it also shields the public servant from unwarranted damage liability:

Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Therefore, the procedures for determining the qualified immunity defense must be carefully tailored to meet its dual purposes of preventing unnecessary trials and protecting public officials from damage liability for objectively reasonable conduct.

The Supreme Court has not yet fully addressed these procedural issues, but it has provided substantial guidance in a passage that the majority quotes but then largely ignores:

Anderson v. Creighton, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042-43 n. 6. For purposes of applying this standard to Gainor’s claims, I conclude that, except for the excessive force claim, the relevant facts in this case are néither complex nor disputed.

Unlawful Arrest. This claim should not survive the pleading stage of the Anderson v. Creighton standard because Gainor has alleged “actions that a reasonable officer could have believed lawful.” Gainor’s Amended Complaint alleged:

If Rogers believed he had reasonable suspicion to stop Gainor to investigate unlawful soliciting, as Gainor alleges, then Rogers was entitled to employ the “least intrusive [investigative methods] reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). See United States v. Willis, 967 F.2d 1220 (8th Cir. 1992). Surely, the least intrusive method to investigate possible unlawful soliciting is to ask for identification.1

If Rogers was reasonable in making an investigative stop and in asking Gainor for identification as part of that reasonable investigation, the lawfulness of the arrest turns on the narrow issue the Supreme Court expressly left open in Brown v. Texas, 443 U.S. 47, 53 n. 3, 99 S.Ct. 2637, 2641 n. 3, 61 L.Ed.2d 357 (1979): “whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.” That question was unsettled at the time and remains unsettled today; thus, Gainor has failed to allege a violation of clearly established law that would “convert the common law tort of false arrest or false imprisonment to a violation of a constitutional right.” Edwards v. Baer, 863 F.2d 606, 607 (8th Cir.1989).

The majority simply ignores the pleading stage of the Anderson v. Creighton inquiry. Then, in analyzing the discovery record, the majority gives a deceptively cramped summary of Rogers’s deposition testimony as to the objective circumstances that led him to stop Gainor and ask for identification. See page 1387, supra. Rogers testified:

Q. What about the passing out of these pieces of paper concerned you, Officer?

Rogers’s above-quoted deposition testimony is entirely consistent with Gainor’s complaint. Thus, there are no disputed issues of fact here if the focus is properly limited to whether Officer Rogers could have reasonably believed that his conduct did not violate clearly established law.

Moreover, other portions of the discovery record confirm that Rogers’s conduct was objectively reasonable, even if his arrest of Gainor did overstep Fourth Amendment bounds. In June 1988, Gainor was arrested in Kootenia, Idaho. In July 1989, he was arrested in Winthrop Harbor, Illinois, and Glendale, Wisconsin.2 All three of these arrest reports reflect circumstances virtually, identical to Gainor's encounter with Rogers and the Moorhead police. Thus, in a span of thirteen months, police officers in four different States concluded that the same conduct warranted Gainor’s arrest. “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). It is clear that Rogers was neither in this case. Therefore, I cannot reconcile the majority’s denial of qualified immunity on this discovery record with Anderson v. Creighton and Hunter v. Bryant.

First Amendment. The majority concludes that the motion for summary judgment on this claim must be denied because Gainor’s assertion that he was arrested “solely for spreading a religious message” raises a genuine issue of material fact. But a defendant’s motives are irrelevant to the qualified immunity issue. As the Supreme Court said in Harlow, “bare allegations of malice should not suffice,” 457 U.S. at 817, 102 S.Ct. at 2738; and again in Anderson, “Anderson’s subjective beliefs about the.search are irrelevant,” 483 U.S. at 641, 107 S.Ct. at 3040. Thus, the majority’s analysis is plainly contrary to the controlling law of qualified immunity.

There.is an issue lurking here that the Supreme Court has not yet addressed: if the plaintiff’s constitutional claim is based upon the defendant’s bad motives (as it typically is in First Amendment cases), and if the undisputed facts demonstrate that the defendant had an objectively reasonable basis for his conduct, can this alleged bad motive defeat summary judgment on qualified immunity grounds? The Supreme Court was able to avoid this issue in Siegert v. Gilley, — U.S.-, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); because the majority found no constitutional violation.3

I would not reach the issue here because Gainor has presented no evidence that Rogers’s conduct was motivated by Gainor’s religious activities. This case turns on whether Rogers was objectively reasonable in stopping Gainor and then in arresting him for refusing a request for identification. The fact that Gainor purported to be engaged in religious activity does not affect (or at most negligibly affects) whether Rogers was reasonable in suspecting Gai-nor of unlawfully soliciting and creating a public nuisance.

Excessive Force. The majority relies upon Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), for its resolution of this issue. The problem is that Graham was decided after Rogers’s conduct in question. The facts surrounding this claim are hotly disputed, and qualified immunity after Graham remains unsettled. See the various opinions in Hammer v. Gross, 932 F.2d 842 (9th Cir.1991) (en banc). Accordingly, I would remand this issue for further consideration consistent with the procedural standard of Anderson v. Creighton.

To conclude, in Anderson v. Creighton, the Supreme Court held that this court had unduly restricted the qualified immunity defense by defining “clearly established law” too broadly. Today, the majority adopts an even more hostile approach to the defense, limiting it to cases in which “the officer asserted conduct which would give rise to probable cause.” Page 1384, supra. Under this standard, the defendant must prove a defense on the merits to be entitled to qualified immunity. Such a standard is inconsistent with Anderson v. Creighton, Hunter v. Bryant, Harlow v. Fitzgerald, and other controlling Supreme Court cases. I dissent.