GOLDBERG, Circuit Judge:
The plaintiff-appellant brought this civil rights damage action against two police officers who allegedly subjected him to arrest and detention without probable cause. Following a trial in federal district court, a jury found that the plaintiff's arrest was based upon probable cause. Accordingly, judgment was entered in favor of the defendant police officers. The plaintiff then brought this appeal, arguing that there had been numerous errors in the trial proceedings.
Our review of the record reveals that the defendant police officers asserted their "good-faith" as a bar to personal liability and that the plaintiff failed to rebut this affirmative defense. We therefore conclude that insofar as these defendants were cloaked by the special protections afforded by a qualified immunity, the judgment dismissing the plaintiff's claims must be affirmed.
This appeal arises from events that transpired during the late evening hours of February 15, 1976 in the south Texas city of McAllen. That night, plaintiff-appellant Jose Saldana was standing near his home,
At approximately 11:00 p. m., police officers Antonio Garza and Ricardo Olvera were on routine patrol in the neighborhood, cruising in an area approximately one-and-a-half blocks from the Saldana property. Hearing loud music, shouting, and "gritos,"
Officer Garza insisted that Saldana calm down, stop yelling and turn down his radio. When Saldana refused, Garza proceeded to place him under arrest. Saldana resisted and a brief struggle ensued, however he was quickly restrained and placed in the patrol car. Saldana was charged with "public intoxication" and "disorderly conduct by abusive language," held at the McAllen police station for about forty minutes, and then released.
There has been no allegation that Officers Garza and Olvera knew Jose Saldana or harbored any personal animus toward him, nor has there been any suggestion that Saldana was in any way abused once he had been restrained and placed in the patrol car.
II. PROCEEDINGS BELOW
The procedural origins of this suit can be traced to a class action pending in the United States District Court for the Southern District of Texas: Guadalupe Cano, et al. v. Jesse Colbath, et al. (S.D.Tex., Brownsville Div., CA 76-B-52). In Cano v. Colbath, the plaintiffs alleged that the City of McAllen, its police chief, and certain individual police officers were responsible for a pattern and practice of police misconduct. The plaintiffs sought injunctive relief as well as monetary compensation for those McAllen residents who had allegedly suffered from specific instances of official wrongdoing.
On April 10, 1980, the district court ordered that the damage claims in Cano v. Colbath be severed from the class action and directed each of the individual claimants to file separate suits. Jose Saldana, appellant in the case now before us, was one of the individual claimants in Cano v. Colbath. Pursuant to the order severing his claim from the class action, Saldana filed this suit under 42 U.S.C. § 1983, seeking $60,000 in compensatory and punitive damages from Officers Garza and Olvera.
As the basis for his damage claims against Garza and Olvera, Saldana alleged that on the night of February 15, 1976, he had been arrested and detained without probable cause and that the defendants had used unreasonable force in making the allegedly illegal arrest.
In response, Officers Garza and Olvera denied Saldana's allegations, asserted that they did have probable cause to arrest, and that they did not use unreasonable force. Moreover, the defendants affirmatively claimed that they had acted "in good faith, and with a reasonable belief in the lawfulness of their acts."
A three day jury trial was held. Following the close of all testimony and arguments, the court directed a verdict in favor of Officer Olvera but allowed the jury to consider the evidence against Officer Garza. The jury was charged, given special interrogatories, and returned a finding that the arrest was supported by probable cause and that Garza had not used unreasonable force. Judgment was entered upon the verdict and the plaintiff then brought this appeal.
III. ISSUES ON APPEAL
Appellant Saldana has advanced an array of interesting and not wholly insubstantial arguments on appeal; he contends that the trial court erred in its evidentiary rulings, in refusing to direct a verdict in his favor, in directing a verdict in favor of Officer Olvera, in its jury instructions, in its formulation of special interrogatories, and in allowing the jury to consider the police officers' "good-faith" immunity defense.
IV. THE QUALIFIED IMMUNITY DEFENSE
It is axiomatic that public officials whose positions entail the exercise of discretion enjoy the special protections of a qualified immunity from personal liability in § 1983 damage actions. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Procunier
Once a defendant has asserted the affirmative defense of qualified immunity and has established that any allegedly tortious conduct was undertaken pursuant to the exercise of his discretionary authority, the burden then shifts to the plaintiff to rebut this "good faith" defense. Garris v. Rowland, 678 F.2d 1264, 1271 (5th Cir. 1982).
Thus, unless a § 1983 plaintiff can establish that the defendant official has violated clearly settled law, his damage action must be dismissed. Id.
It is undisputed that the defendants in this case were acting pursuant to their discretionary authority when they arrested Jose Saldana.
We have carefully reviewed the briefs and record and find that the plaintiff-appellant offered only one argument in support of his crucial claim that the defendants' conduct had violated "clearly established" law. Specifically, Saldana suggested that Officers Garza and Olvera were not entitled to a qualified immunity because "the Texas statutory provisions granting authority to arrest someone for public intoxication and disorderly conduct by abusive language were enacted many years ago and represent well-settled statutory law." Appellants' Brief at 42.
We find the appellant's syllogism to be flawed. He would have us hold that whenever a police officer makes an arrest for "public intoxication" or "disturbing the peace," and it is later determined that the accused was not committing these offenses as defined by statute, the arresting officer's conduct would constitute a violation of clearly established law. Certainly this cannot be the rule. As Chief Judge Clark has recently stated:
The mere fact that a person is wrongfully arrested and charged with an offense whose elements are well-settled does not mean that the arrest itself contravenes "well-settled law." See, e.g., Garris v. Rowland, supra (officer acting without probable cause arrests plaintiff and charges him with child molestation; nevertheless, defendant is cloaked by qualified immunity). Rather, it is clear that a police officer may be immune from liability under § 1983 even if it is later determined that probable cause for an arrest did not exist. Id.
We could assume arguendo that Saldana was standing on the "private" side of the
In this case, the plaintiff contended that he was arrested without probable cause because he had not committed the offenses with which he had been charged. He supported this contention with elaborate arguments regarding the constitutionality of local sound ordinances and abusive speech statutes, supplemented by an extended discourse upon Texas "public-place" jurisprudence. Saldana has argued that the defendants should have known that on the facts of this case an arrest was not justified. We just cannot agree.
Police officers can be expected to have a modicum of knowledge regarding the fundamental rights of citizens. Lawlessness will not be allowed to pervade our constabularies. However, in holding our law enforcement personnel to an objective standard of behavior, our judgment must be tempered with reason. If we are to measure official action against an objective standard, it must be a standard which speaks to what a reasonable officer should or should not know about the law he is enforcing and the methodology of effecting its enforcement. Certainly we cannot expect our police officers to carry surveying equipment and a Decennial Digest on patrol; they cannot be held to a title-searcher's knowledge of metes and bounds or a legal scholar's expertise in constitutional law.
In order to impose personal liability upon these individual police officers, the plaintiff was not only required to show that this arrest was illegal; it was necessary that he show that the arrest was so illegal as to violate clearly established law. In this case and on these facts, we do not think that the plaintiff carried his burden.
It goes without saying that a plaintiff who seeks to collect damages for an allegedly illegal arrest must prove that the arrest was indeed illegal. However, establishing the illegality of the arrest will not necessarily entitle the plaintiff to a recovery. If the arresting officers have asserted and established their entitlement to a "good-faith" immunity, the plaintiff bears an additional burden; he must rebut the asserted defense. If he does not rebut the defense, he cannot recover — even if he has
We recognize "that courts should be even-handed in their dispensation of justice regardless of rank, badges, or insignia of offense." Williams v. Treen, supra at 903. Therefore, it is important to emphasize that the qualified immunity defense "is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government." Barr v. Matteo, 360 U.S. 564, 572-73, 79 S.Ct. 1335, 1340-41, 3 L.Ed.2d 1434 (1959). "The underlying policy which pervades every qualified immunity analysis is one of protecting the public by permitting its decision-makers to function without fear that an exercise of discretion might in retrospect be found to be error." Cruz v. Beto, 603 F.2d 1178, 1183 (5th Cir. 1979).
In concluding that qualified immunity is applicable to this case, we must remind ourselves that such immunity should neither be gratuitously nor parsimoniously applied. Perhaps Mr. Saldana's arrest was based upon probable cause; perhaps it was not. However, in this case "we need not decide ... [Saldana's] constitutional claims, because [the defendants'] qualified immunity defense would have been an appropriate basis for the district court's decision." Rheaume v. Texas Department of Public Safety, 666 F.2d 925, 931 (5th Cir. 1982).
Accordingly, the judgments dismissing the plaintiff's claims against Officers Garza and Olvera are
We also note that Saldana originally brought both state and federal damage claims. However, the plaintiff never requested a jury instruction or finding on his state law claims, nor does he mention these claims in his appeal. We therefore assume that he has abandoned his state law causes of action.
While the Fifth Circuit rule has not enjoyed universal acceptance, see e.g., Haislah v. Walton, 676 F.2d 208, 214-215 (6th Cir. 1982) (defendants bear burden of showing that they have acted in good faith); Wolfel v. Sanborn, 666 F.2d 1005, 1007 (6th Cir. 1982) (burden on defendant); Harris v. Roseburg, et al., 664 F.2d 1121, 1127 (9th Cir. 1981) (burden on defendant); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) (burden on defendant); DeVasto v. Faherty, 658 F.2d 859, 865 (1st Cir. 1981) (burden on defendant), this panel is bound by the rule that places the burden of breaching an asserted immunity upon the plaintiff.
We also emphasize that while the Harlow standard may have the effect of broadening the scope of the qualified immunity defense, it certainly does not give police officers absolute immunity from civil damages liability. Certainly, egregious police misconduct will continue to give rise to personal liability. See, e.g., Howard v. Gonzales, 658 F.2d 352 (5th Cir. 1982). All we hold today is that these defendants properly asserted their qualified immunity and this plaintiff failed to rebut the defense by showing that the defendants had acted in violation of what they knew or should have known to be clearly established law.