Vargas-Badillo v. Diaz-Torres ( 1997 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-1895

    LUIS VARGAS-BADILLO,

    Plaintiff - Appellant,

    v.

    ANDRES DIAZ-TORRES, ET AL.,

    Defendants - Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Daniel R. Dom nguez, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________

    Coffin, Senior Circuit Judge, ____________________

    and Stahl, Circuit Judge. _____________

    _____________________

    Peter John Porrata, with whom Law Offices of Peter John ___________________ ___________________________
    Porrata was on brief for appellant. _______
    Sylvia Roger-Stefani, Assistant Solicitor General, _______________________
    Department of Justice, with whom Carlos Lugo-Fiol, Solicitor _________________
    General and Edda Serrano-Blasini, Deputy Solicitor General, were ____________________
    on brief for appellees.



    ____________________

    May 30, 1997
    ____________________















    TORRUELLA, Chief Judge. Luis Vargas-Badillo ("Vargas") TORRUELLA, Chief Judge. ___________

    brought this damages suit under 42 U.S.C. 1983, claiming that

    he was illegally arrested and subjected to excessive force by the

    defendants, two Puerto Rico police officers.1 The district court

    found that the defendants were entitled to qualified immunity on

    the unlawful arrest claim, and granted their motion for summary

    judgment. The court also determined that Vargas failed to state

    a proper claim of excessive force. Vargas appeals on the

    unlawful arrest claim, arguing that there was no probable cause

    to support his warrantless arrest.2 We affirm.

    BACKGROUND BACKGROUND

    In the summary judgment context, we review all material

    facts in genuine dispute in the light most favorable to the non-

    movant, here Vargas. Serrano-Cruz v. DFI Puerto Rico, 109 F.3d ____________ _______________

    23, 24 (1st Cir. 1997). Vargas was one of three men who were in

    a Puerto Rico Aqueducts and Sewers Administration truck that

    collided with a car driven by Minerva Delgado-Gonz lez

    ("Delgado"). After the collision, which took place at night on a

    hilly road, Vargas, Delgado, and Vargas' two colleagues agreed to

    meet at a nearby police station to report the accident.


    ____________________

    1 Vargas initially named as defendants an unnamed supervisor and
    Ismael Betancourt, the superintendent of the Puerto Rico Police
    Department. The actions against these two other defendants were
    dismissed through partial judgments, at which point the remaining
    defendant officers filed their summary judgment motion.

    2 On appeal, Vargas does not challenge the district court's
    determination regarding his failure to state a cognizable
    excessive force claim.

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    At the police station, the defendant police officers,

    Andr s D az-Torres and Andr s Maldonado-Castro, questioned the

    four persons. Delgado told the officers that Vargas was the

    driver of the truck -- a fact that Vargas disputes -- and that

    she thought that he and the other men smelled of alcohol. She

    also stated that the men had shiny eyes and staggered a bit.

    When the officers sought out Vargas for further

    questioning, he was outside the police station, drinking

    something from a plastic cup. After the officers asked to speak

    with him, he threw down his cup, entered the station, and began

    smoking a cigarette. When the officers ordered him to put out

    the cigarette, Vargas stubbed it out with his shoe on the floor

    of the police station. Officer D az then told Vargas to dispose

    of the cigarette in a trash can. Vargas denies being rude or

    aggressive toward the officers, although he does not deny having

    taken these particular actions.

    Immediately thereafter, the police officers placed

    Vargas under arrest for driving under the influence of alcohol,

    under Section 5-801 of the Puerto Rico Vehicle and Traffic Law.

    P.R. Laws Ann. tit. 9, 1041 et seq. They handcuffed and ________

    searched him before transporting him to a police station that had

    a working breathalyzer. After the breathalyzer test indicated a

    blood alcohol level of zero percent, Vargas was released. Vargas

    was subsequently charged on a count of reckless driving based on

    the same incident -- a criminal charge which was dropped once

    Vargas' insureragreed to payfor the damagescaused by theaccident.


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    The district court granted summary judgment on the

    basis of qualified immunity. In so holding, it made two

    findings: that the defendants were presented with sufficient

    evidence to establish probable cause for Vargas' arrest, and that

    although the particular warrantless arrest violated a Puerto Rico

    statute, it did not violate any clearly established federal law.

    DISCUSSION DISCUSSION

    We review the district court's summary judgment

    determination de novo. Ionics, Inc. v. Elmwood Sensors, Inc., __ ____ _____________ ______________________

    110 F.3d 184, 185 (1st Cir. 1997).

    A. The Qualified Immunity Standard A. The Qualified Immunity Standard

    The doctrine of qualified immunity provides that

    "government officials performing discretionary functions . . .

    are shielded from liability for civil damages insofar as 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 (1982). ______ __________

    Defendant police officers are shielded if either of the following ______

    holds: if the federal law allegedly violated was not clearly

    established at the time of the alleged violation, or if, at

    summary judgment, there is no genuine dispute of material fact

    that would prevent a finding that the defendants' actions, with

    regard to applying or following such clearly established law,

    were objectively reasonable. See Stella v. Kelley, 63 F.3d 71, ___ ______ ______

    73 (1st Cir. 1995). In effect, qualified immunity protects "all




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    but the plainly incompetent or those who knowingly violate the

    law." Malley v. Briggs, 475 U.S. 335, 341 (1986). ______ ______

    This appeal presents two distinct legal issues. First,

    we must determine whether the warrantless arrest of a suspected

    misdemeanant, where the misdemeanor did not occur in the

    officers' presence, would have violated clearly established

    federal law as of December 1990. Second, we must determine

    whether the officers acted in conformity with clearly established

    law under an objective reasonableness standard.

    B. The Clearly Established Law B. The Clearly Established Law

    It is not disputed that at the time of Vargas' arrest,

    clearly established Fourth Amendment law required that the

    defendants have probable cause to support Vargas' warrantless

    arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964). Whether there ___ ____ ____

    were adequate grounds for making a probable cause determination

    is addressed in the next section. However, Vargas also appears

    to contend that the officers violated a rule prohibiting

    warrantless arrests for misdemeanors that do not occur in the

    presence of the arresting officers. We must thus determine

    whether such a rule was a clearly established part of federal law

    in December 1990, when Vargas' arrest occurred.

    Vargas correctly points out that in Puerto Rico, such a

    rule exists. Rule 11 of the Puerto Rico Rules of Criminal

    Procedure provides that a warrantless arrest for a misdemeanor

    offense is only permitted where the arresting officer has grounds

    to believe that the misdemeanor was committed in his presence,


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    whereas no such presence requirement governs the warrantless

    arrest of felons. See P.R. Laws Ann. tit. 34, App. II, R. 11 ___

    (1991). Driving under the influence of alcohol is a misdemeanor

    in Puerto Rico. See P.R. Laws Ann. tit. 9, 1042 (1976). ___

    Regardless of whether the arresting officers violated Rule 11,

    Vargas can offer no support for the proposition that, as of

    December 1990, this provision had a clear basis in federal _______

    constitutional or statutory law. "Mere violations of state law

    do not, of course, create constitutional claims." Roy v. City of ___ _______

    Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983). _______

    To date, neither the Supreme Court nor this circuit

    ever has held that the Fourth Amendment prohibits warrantless

    arrests for misdemeanors not committed in the presence of

    arresting officers. Into this silent past, a "clearly

    established right" cannot be retrojected. Moreover, cases from

    sister circuits addressing this very issue have arrived at the

    opposite conclusion. See, e.g., Pyles v. Raisor, 60 F.3d 1211, ___ ____ _____ ______

    1215 (6th Cir. 1995) (arrestee cannot recover under section 1983

    on ground that officers violated state law prohibition of

    warrantless arrests for misdemeanors not committed in officers'

    presence); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) _____ ______

    (same); Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir. 1974) ______ _______

    (same); see also Vargas-Badillo v. D az-Torres, Opinion and _________ ______________ ___________

    Order of May 24, 1996, at 12-17 (D.P.R. 1996) (providing an

    illuminating discussion of the questionable constitutional status

    of this longstanding rule). Thus, we conclude that the only


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    clearly established federal right implicated in Vargas'

    warrantless arrest in December 1990 was his Fourth Amendment

    right not to be arrested without probable cause.

    C. Objective Reasonableness and Probable Cause C. Objective Reasonableness and Probable Cause

    We next assess whether the second part of the qualified

    immunity standard, requiring that the officers acted in an

    objectively reasonable fashion in light of clearly established

    law, was met. Here, that assessment turns on the officers'

    determination of probable cause.

    In cases applying this [qualified
    immunity] standard to police arrests in
    this circuit, an arrest challenged as
    unsupported by probable cause is deemed
    "'objectively reasonable'" unless "there
    clearly was no probable cause at the time
    the arrest was made."

    Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (quoting Floyd ____ _________ _____

    v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)). In the instant case, _______

    the evidence giving rise to probable cause to believe Vargas

    drove under the influence of alcohol was far from substantial --

    and yet we cannot say that there clearly was no probable cause

    from the point of view of reasonable persons standing in these

    police officers' shoes. See Farrell, 765 F.2d at 5 ("Despite a ___ _______

    finding of no probable cause at a later hearing, a police officer

    should not be found liable under 1983 for a warrantless arrest

    because the presence of probable cause was merely questionable at

    the time of arrest."); Briggs v. Malley, 748 F.2d 715, 719 (1st ______ ______

    Cir. 1984).




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    The Fourth Amendment requirement of probable cause to

    perform a warrantless arrest turns on "whether at that moment the

    facts and circumstances within [the officers'] knowledge and of

    which they had reasonably trustworthy information were sufficient

    to warrant a prudent man in believing that the petitioner had

    committed or was committing an offense." Beck, 379 U.S. at 91; ____

    see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. ________ _____________ ________

    1987) (quoting Beck). Here, the following undisputed facts ____

    could, at the very least, have led reasonable police officers to

    believe that they were obeying the probable cause requirement in

    proceeding to arrest Vargas for driving under the influence of

    alcohol. The officers were informed by Delgado, whether

    correctly or incorrectly, that Vargas was the driver of the

    truck. Delgado also informed the defendants that Vargas and the

    other men smelled of alcohol and had glassy eyes. Reasonable

    police officers could further believe that Vargas' actions

    suggested insolence, and were thus the kind of actions that

    correlate with drunkenness.

    It is worth emphasizing that in the qualified immunity

    context, we need not adjudge whether these facts were legally

    sufficient grounds for this warrantless arrest.3 We only

    conclude that the undisputed facts in this case preclude a
    ____________________

    3 The evidence suggesting that an arrest was necessary was
    frankly not very strong in this case. We are concerned, for
    example, that in light of Vargas' cooperation with the police and
    voluntary decision to report to the police station, the police so
    quickly chose the option of arrest and handcuffing, rather than
    some less severe means to the end of giving him a breathalyzer
    test.

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    finding that there was clearly no probable cause, or that "no

    reasonably competent officer would have found probable cause."

    Prokey v. Watkins, 942 F.2d 67, 72 n.4 (1st Cir. 1991). The ______ _______

    reports and observations suggesting that Vargas had been driving

    while intoxicated were sufficient to satisfy the rule in this

    circuit that questionable calls on matters of probable cause,

    such as the one in this case, are protected through the doctrine

    of qualified immunity. Cf. Rivera v. Murphy, 979 F.2d 259, 263- ___ ______ _______

    64 (1st Cir. 1992) (denying qualified immunity where arresting

    officer provided "no facts to support his legal conclusion that

    he had probable cause"). This kind of discretionary judgment

    call, made routinely by peace officers, must be protected from

    the chilling effect of personal liability. Our binding

    precedents addressing qualified immunity strike the difficult

    balance between chilling effective law enforcement and protecting

    individual liberties by reviewing allegedly unlawful warrantless

    arrests to determine whether there was clearly no probable cause,

    and we follow these precedents today. See, e.g., Topp, 994 F.2d ___ ____ ____

    at 48.

    CONCLUSION CONCLUSION

    For the foregoing reasons, the district court's grant

    of summary judgment to the defendants is affirmed. affirmed ________










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