WHITE, Associate Justice (Ret.).
Plaintiff-Appellant David A. Habiger ("Habiger") appeals from the district court's entry of partial summary judgment and a jury verdict against him in his Section 1983 action brought in the wake of his arrest for violating a temporary restraining order ("TRO"). The district court rejected his unlawful arrest claim, ruling for the police officers on qualified immunity grounds and dismissing the claim against the City of Fargo ("the City") based on its alleged failure to train its police officers. Habiger v. City of Fargo, 905 F.Supp. 709 (D.N.D.1995). A jury then found that neither the City nor its officers were liable for using excessive force in arresting Habiger. Habiger now appeals, complaining that the district court erred in (1) granting summary judgment to the officers on qualified immunity grounds; (2) dismissing the illegal arrest/failure to train claim against the City; and (3) refusing to instruct the jury that it should consider the legality of the arrest in determining whether the officers' use of force in arresting Habiger was objectively reasonable. For the reasons stated below, we reject each of these claims of error, and AFFIRM the judgment of the district court.
On October 28, 1991, a North Dakota state trial court issued a TRO restricting the protesting
Id. at 2-4.
The pro-life protestors challenged the constitutionality of the TRO, but the North Dakota Supreme Court, ten months after the arrest challenged in this case, upheld those provisions of the TRO that are directly involved in this case. See Fargo Women's Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.1992).
In its opinion, the North Dakota Supreme Court described the events leading up to the issuance of the TRO:
Id. at 404-05.
On the morning of October 31, 1991, Habiger and approximately seventy-five other individuals participated in a protest near the clinic to protest the issuance of the TRO. During the protest, several police officers, including Sergeant Don Lawyer ("Lawyer") were in front of the clinic to enforce the TRO. After Habiger walked over to Lawyer, Lawyer told him that he could not cross the red-line marking the 100 foot radius around the clinic. Habiger responded that, "this is quite a country we got here. We're living on the edge of socialism. It's more like a communist regime." Habiger, at 712.
Id. at 713. Lawyer again asked him to quiet down. This provoked an even more emphatic response from Habiger:
Id. at 713. Finally, Lawyer told Habiger that he was under arrest. Habiger asked "For what?," and Lawyer responded, "Court order." Habiger then stated, "For what? I'm just talking." Lawyer replied, "You're yelling too loud." Id. at 713. Habiger resisted the arrest, and several other officers (Lawyer's co-defendants in this action) came to assist Lawyer in restraining Habiger.
After the police brought Habiger to the ground and completed the arrest, he complained of pain in his arm, and the police called an ambulance to assist him. After he was treated at a local hospital, police officers brought Habiger to jail. The following day, Habiger was charged with disorderly conduct and preventing arrest. Habiger posted the necessary bond, but as a condition of his release, he was ordered to stay away from the clinic. On or about March 25, 1992, the Cass County State Attorney's Office dismissed the charges on First Amendment and insufficiency of the evidence grounds.
On May 7, 1993, Habiger filed this 42 U.S.C. § 1983 action, claiming that several of the City's police officers and the City violated his First and Fourth Amendment rights. As to the officers, Habiger alleged that they arrested him for violating the noise restriction contained in paragraph (c) of the TRO without probable cause and that they used excessive force in arresting him. As to the City, Habiger charged that its failure to train the defendant officers led to his unconstitutional arrest. Habiger's complaint also alleged state law claims of false arrest, false imprisonment and assault and battery. Magistrate Judge Klein,
The court, however, denied the summary judgment motion on Habiger's excessive force and state law assault and battery claims, ruling that these claims should be tried to a jury, which then occurred. The jury found for the officers and the City. Habiger then filed this appeal. He argues that the district court erred in (1) granting summary judgment to the officers on the unconstitutional arrest claims; (2) granting summary judgment to the City on the alleged failure to train its officers; and (3) not instructing the jury to consider the lawfulness of the arrest in determining whether the officers, use of force was objectively reasonable.
We begin by setting out the legal propositions that are not in dispute. First, to withstand a motion for summary judgment on qualified immunity grounds, a civil rights plaintiff must (1) assert a violation of a constitutional right; (2) demonstrate that the alleged right is clearly established; and (3) raise a genuine issue of fact as to whether the official would have known that his alleged conduct would have violated plaintiff's clearly established right. Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir.1993). Second, Habiger had a clearly established right under the Fourth Amendment not to be arrested unless there was probable cause for his arrest. Third, Habiger also had a clearly established right to express his views about abortion in a public forum; but this right is not absolute since it is subject to proper time, place and manner regulations, such as the excessive noise prohibition contained in paragraph (c) of the TRO. Fourth, the validity of the TRO, of which Habiger had notice, is not in dispute; hence, if the police officers had probable cause to believe that Habiger was violating the TRO by yelling or screaming so as to substantially interfere with the provision of medical services (e.g., counseling), his arrest was valid and would not violate either the Fourth or the First Amendment. Fifth, "[t]he issue for immunity purposes is not probable cause in fact but arguable probable cause," Myers v. Morris, 810 F.2d 1437, 1455 (8th Cir.), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987), that is, whether the officer should have known that the arrest violated plaintiff's clearly established right, Foulks v. Cole County, Mo., 991 F.2d at 456. Sixth, in granting summary judgment in favor of defendant officers on immunity grounds, the court did not need to rule on whether there was actual probable cause to arrest Habiger. Seventh, although the City may not be held liable for the mistakes of its officers on a respondeat superior basis, it is not entitled to the shield of qualified immunity afforded to its officers. See Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418, 63 L.Ed.2d 673 (1980). Thus, if there was not actual probable cause to arrest Habiger, the City could be held liable on a failure to train theory unless its failure to train its officer did not lead to Habiger's unlawful arrest, which the district court held was the case and which is an issue in this appeal.
A. THE QUALIFIED IMMUNITY ISSUE
We review the district court's grant of summary judgment de novo. Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir.1993). We address first whether a reasonably competent officer could believe there was probable cause to arrest Habiger. As the district court recounted, when officer Lawyer arrested Habiger, he stated that Habiger was violating the court order by "yelling too loud." Thus, Lawyer must have thought that Habiger's repeated yelling substantially interfered with the clinic's operation and violated the noise restriction contained in paragraph (c) of the TRO. The court posed the issue as whether "a reasonable police officer could have believed that Habiger's yelling was substantially interfering with the operation of the clinic." Habiger, at 718. The court concluded that "[a] reasonable police officer fearing a magnification of the volatile situation could have believed that Habiger's speech, delivered while many of his fellow demonstrators were being arrested for violating the court order, substantially interfered with clinic operations." Id. at 719. Thus, the court ruled that the officers were immune from suit.
We agree with the district court. Habiger was screaming at the top of his voice from a point some thirty-three yards from the clinic property. Whether Habiger could be heard inside the clinic or by patients seeking to enter the clinic was a judgment call on Lawyer's part, the kind of a decision that police officers must repeatedly make. The qualified immunity doctrine allows officers to make reasonable errors so that they do not always "err on the side of caution." Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per
First, Habiger contends that the district court failed to consider the import of paragraph (i) of the TRO, which cautions that nothing in the TRO should be construed to abridge the lawful exercise of one's First Amendment rights. But Habiger does not challenge the constitutionality of the noise restriction. An arrest for violating that provision is not barred by the First Amendment, nor does an officer's reasonable mistake about the legality of the arrest disentitle the officer to qualified immunity.
Second, Habiger asserts that the arrest was pretextual; that is, he argues that the officers arrested him not to enforce the TRO, but because of their disagreement with his views on abortion. This matter of intent, it is submitted, should not have been disposed of on summary judgment. On the facts of this case, however, we seriously doubt that this claim of pretext, even if proved, would nullify the finding of probable cause to believe that Habiger was violating the TRO; nor would it disentitle the officers to qualified immunity. See U.S. v. Bloomfield, 40 F.3d 910, 915 (8th Cir.1994) (en banc), cert. denied., ___ U.S. ___, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995); Foster v. Metropolitan Airports Comm'n., 914 F.2d 1076, 1081 (8th Cir.1990). In any event, we need not consider this issue since Habiger has plainly failed to support his claim of pretext by demonstrating a genuine issue of material fact on this question.
Third, Habiger points to the district court's conclusion that "a reasonable police officer fearing a magnification of the volatile situation could have believed that Habiger's speech, delivered while many of his fellow demonstrators were being arrested for violating the Order, substantially interfered with clinic operations." He asserts that this conclusion disregards the First Amendment by considering the emotive effect his speech might have on his fellow demonstrators. In similar vein, Habiger points to what Officer Lawyer said in his affidavit: Habiger was "very emotional and disruptive" and "made it much more difficult to control the crowd." App. 105-106, 110. Habiger supports his legal argument by quoting from Texas v. Johnson, 491 U.S. 397, 409, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342 (1989).
See Reply Br. at 5.
We do not belittle this basic constitutional principle. As we see it, this principle was not violated either by the officers' conduct or by the district court's opinion and judgment. The circumstances faced by the officers and leading to Habiger's arrest are adequately clear. Habiger was one of 75 or so protestors gathered in front of the clinic. Some of the demonstrators crossed the red line to within 80 feet of the clinic, sat down and refused to move, asserting that they had
B. MUNICIPAL LIABILITY
Habiger also argues that, if the officers arrested Habiger without actual probable cause (even if there was arguable probable cause so as to clothe them with qualified immunity), the City is liable for the illegal arrest on a failure to train theory. See Medina v. City of Denver, 960 F.2d 1493, 1499-1500 (10th Cir.1992) (noting that there is no inconsistency between granting qualified immunity to City officials and holding the City liable). First, Habiger claims that the district court never addressed the question of actual probable cause because it did not analyze the underlying constitutional violation (which it assumed), but merely focused on the presence of arguable probable cause.
This argument, even if sound, does not require us to reverse the district court, for it also rejected Habiger's failure to train theory on the ground that "[a]dditional specialized training on First Amendment protections would not have influenced a reasonable police officer's decision to arrest plaintiff for violating the [TRO]." Habiger at 726; id. at 726 ("inadequate training was not the proximate cause of plaintiff's alleged constitutional injury."). Moreover, with specific reference to the TRO, the district court explained that, since the TRO only went into effect three days before Habiger's arrest, the Department did not have time to train its officers how to handle these specific protests. Id. at 726. Thus, because Habiger has failed to demonstrate how the City's failure to train its officer caused the violation of his constitutional rights, we affirm the district court's judgment that the City cannot be held liable on a failure to train theory.
C. JURY INSTRUCTIONS ON EXCESSIVE FORCE
Finally, Habiger argues that the district court erred by instructing the jury that the objective reasonableness of the force used in arresting him did not turn, at least in part, on whether the arrest was legal.
For the reasons stated above, we AFFIRM the judgment of the district court.
McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir. 1987) (internal quotation omitted).
App. at 199.