Edward Brodnicki v. City of Omaha ( 1996 )

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No. 95-1785
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Edward Brodnicki, *
*
Appellant, *
*
v. *
*
City of Omaha, Nebraska, a * Appeal from the United States
Municipal Corporation; County * District Court for the
of Douglas, a Nebraska * District of Nebraska.
Political Subdivision; *
Patrick A. McCaslin; Kevin *
Donlan; Jeffery J. Theulen; *
John Skanes; Michael Hoch; *
James Jansen; John Swanson, *
*
Appellees. *
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Submitted: October 18, 1995
Filed: January 31, 1996
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Before BOWMAN, FLOYD R. GIBSON, and WOLLMAN, Circuit Judges.
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BOWMAN, Circuit Judge.
Edward Brodnicki appeals the adverse grant of summary judgment
by the District Court1 in Brodnicki's 42 U.S.C. § 1983 action
against the City of Omaha, Douglas County, members of the Omaha
Police Department, and the county attorney, James Jansen. We
affirm.
1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
This case began when a nine-year-old girl, Meaghan
Callaghan, reported to Omaha police that she had been approached
and followed by a man who tried to coax her into his car. She
stated that the man had dirty-blonde hair, a moustache, wore
sunglasses, a black hat and black shirt, and drove a white car with
license plate number 1-AA864. Callaghan reported that the man
opened his car door and said, "Your mother's going to be late at
work, and she told me to pick you up." Callaghan stated that
although she refused to get into the car with the man, he continued
to follow her for two blocks, repeating his request for her to
accompany him. The police traced the license plate number to
Brodnicki's car.
Police brought Callaghan and her father to Brodnicki's home,
where she identified Brodnicki's car as the one that followed her.
After obtaining Brodnicki's consent, police arranged for a
"showup,"2 with Brodnicki standing in his front yard so that
Callaghan could observe him from the police cruiser. The officers
cautioned Callaghan about the serious nature of her allegations and
the importance of accuracy. Callaghan positively identified
Brodnicki as the driver of the car that had followed her.
Next, the officers obtained Brodnicki's consent to search his
car where they found sunglasses, a baseball cap similar to the one
described by Callaghan, and a stocking cap. Subsequently,
Brodnicki was taken to police headquarters for questioning. He
explained that he was at home alone on the afternoon in question;
he did not provide the name of any person who could verify his
whereabouts. He was given an opportunity to confront Callaghan,
but he declined. The officers concluded there was sufficient
2
A "showup" is a procedure where a single individual is
exhibited to a witness and the witness is asked whether she can
identify the individual as the perpetrator of the crime being
investigated.
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evidence to arrest Brodnicki and to charge him with attempted
kidnapping. A preliminary hearing was held in which Brodnicki
cross-examined the state's witnesses, and he was provided the
opportunity to present evidence, but he declined. Brodnicki was
bound over for trial and released on bond. Soon thereafter,
Brodnicki hired his own investigators, who concluded that he was at
home during the alleged incident and did not drive his car during
the relevant time period. The investigators also interviewed
children with whom Callaghan had played on the day of the alleged
incident. One child stated that she followed Callaghan home, but
never saw Brodnicki approach Callaghan. After confirming this
information, the county attorney's office dismissed the charges
against Brodnicki.
Brodnicki then brought this § 1983 action, claiming that he
was arrested without probable cause and that the arrest was
pursuant to a policy or practice of the City of Omaha. Brodnicki
also claimed that Jansen violated his due process rights by
prosecuting him for attempted kidnapping and that Jansen's actions
were taken pursuant to the policies and practices of Douglas
County. Defendants Jansen and Douglas County moved for summary
judgment arguing, inter alia, that Jansen, as county attorney, was
entitled to absolute immunity for his actions in connection with
the charges against Brodnicki and that Jansen's conduct was not
pursuant to policies and practices approved by Douglas County. The
District Court granted summary judgment to Jansen and Douglas
County, concluding that Jansen was entitled to absolute immunity
and that there was no basis for finding Douglas County liable. The
police officers also filed a motion for summary judgment, claiming
that they were entitled to qualified immunity. Before the District
Court ruled on that motion, the officers and the City moved for
summary judgment on the merits. The District Court did not address
the officers' qualified immunity defense, but instead granted
summary judgment on the merits in favor of the officers and the
City. The District Court held that the officers had probable cause
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to arrest Brodnicki, and, since the officers' actions were proper,
there was no basis for holding the City liable under a theory of
inadequate training or municipal custom.
Brodnicki timely appeals.3 He argues that as a matter of law
(1) the police officers violated his Fourth Amendment rights by
arresting him without probable cause; (2) the officers acted
pursuant to policies and practices approved by the City of Omaha;
and (3) Jansen violated Brodnicki's due process rights by
prosecuting him for attempted kidnapping.4
I.
We review de novo the decision to grant a summary judgment
motion. Maitland v. University of Minn., 43 F.3d 357, 360 (8th
Cir. 1994). We will affirm the judgment if the record shows that
there is no genuine issue of material fact and that the prevailing
party is entitled to judgment as a matter of law. Id.; see also
Fed. R. Civ. P. 56(c).
II.
Brodnicki argues that the facts, as to which there are no
material disputes, show that the Omaha police officers did not have
probable cause for his arrest, which therefore violated his rights
under the Fourth Amendment made applicable to the states through
the Fourteenth Amendment's Due Process clause. See Baker v.
McCollan, 443 U.S. 137, 142 (1979); Hannah v. City of Overland, 795
F.2d 1385, 1389 (8th Cir. 1986) (holding § 1983 action lies for
3
On June 8, 1995, Brodnicki filed a motion to supplement the
record. His motion was ordered taken with the case. Brodnicki's
motion to supplement the record is granted.
4
Because Brodnicki does not challenge the District Court's
decision granting summary judgment in favor of Douglas County, that
ruling is not before us.
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warrantless arrest without probable cause). Probable cause exists
if "the totality of facts based on reasonably trustworthy
information would justify a prudent person in believing the
individual arrested had committed . . . an offense" at the time of
the arrest. Hannah, 795 F.2d at 1389 (quoting United States v.
Wallraff, 705 F.2d 980, 990 (8th Cir. 1983). "[T]he probability,
and not a prima facie showing, of criminal activity is the standard
of probable cause." Id. (quoting Wallraff, 705 F.2d at 990)
(internal quotations omitted)).
Brodnicki makes several arguments as to why, in his view, his
arrest lacked probable cause. First, he argues that the police
were not justified in believing Callaghan's story when confronted
with his denial of the alleged incident, and that the police had a
duty to investigate his alibi before making their probable cause
determination. We disagree. The officers were not required to
conduct a mini-trial before arresting Brodnicki. Morrison v.
United States, 491 F.2d 344, 346 (8th Cir. 1974). Probable cause
is to be determined upon the objective facts available to the
officers at the time of the arrest. Id. Moreover, the officers'
reliance on Callaghan's story of her near-abduction was not
objectively unreasonable. Callaghan appeared to be a credible
witness. She gave the police a specific description of the car,
its license plate number, and a detailed account of the incident.
This information led the police to identify Brodnicki's car, which
matched Callaghan's description. Brodnicki's car then was found in
the immediate vicinity where, according to Callaghan, she was
accosted while on her way home after playing with her friends.
Callaghan's mother made statements to the officers attesting to her
daughter's truthfulness. Callaghan identified Brodnicki in a
showup. Upon this evidence, a reasonable police officer could
conclude that probable cause existed to arrest Brodnicki.
Brodnicki correctly asserts that his physical appearance is
somewhat inconsistent with Callaghan's description of the man who
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allegedly attempted to lure her into his car. For example,
Brodnicki is six feet two inches tall and 280 pounds with dark
brown hair as opposed to five feet eleven inches tall and 220
pounds with dirty-blonde hair; Brodnicki has a beard but no
mustache; he was dressed in a brown shirt rather than a black
shirt. Brodnicki argues that such inconsistencies vitiate probable
cause. We disagree. The evaluation of evidence to determine if
probable cause exists is not an exact science. Brinegar v. United
States, 338 U.S. 160, 175-76 (1949) (defining probable cause as a
practical, nontechnical concept that strikes a balance between
society's interest in effective law enforcement and protection of
law-abiding citizens). We must consider the inconsistencies that
Brodnicki points out in light of all of the circumstances of which
the arresting officers were aware at the time of his arrest,
including Callaghan's tender age. Having done so, we conclude that
these inconsistencies are not sufficient to defeat a finding of
probable cause.
Brodnicki next argues that the showup at his house was so
suggestive that it was improper to include it in the probable cause
evaluation. Brodnicki further argues that without Callaghan's
identification of him at the showup the police lacked probable
cause for his arrest. We are not persuaded. Even if we exclude
the showup from our probable cause analysis, what remains are
police officers who reasonably believed that they were dealing with
a credible victim-witness. They acted on a specific, detailed
account of events that led them to Brodnicki's car, and to
Brodnicki, who fit the nine-year-old's description of her near-
abductor fairly well. At the time of Brodnicki's arrest, the
police had no reason to suspect that Callaghan may have been
fabricating her story. Indeed, Callaghan's mother vouched to the
officers for their daughter's truthfulness and good character. Any
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objective reasons for skepticism about Callaghan's allegations
emerged only after Brodnicki's arrest.5
Nonetheless, we find no need to exclude the showup from our
probable cause analysis, for we conclude that the showup was
conducted in a constitutional manner. See Neil v. Biggers, 409
U.S. 188, 199-200 (1972) (explaining factors to be considered when
evaluating likelihood of misidentification because of
suggestiveness of confrontation procedures). While one-man showups
have been criticized as "inherently suggestive and a practice to be
avoided," United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir.
1976), cert. denied, 431 U.S. 956 (1977), evidence of such a showup
without more does not violate due process. See Pratt v. Parratt,
615 F.2d 486, 488 (8th Cir.), cert. denied, 449 U.S. 852 (1980).
The question is whether the showup was impermissibly suggestive,
and if so whether in all of the circumstances of the case the
suggestive confrontation created "a very substantial likelihood of
irreparable misidentification." See United States v. Henderson,
719 F.2d 934, 936 (8th Cir. 1983) (internal quotations and citation
omitted). In assessing reliability, we consider such factors as
the opportunity of the witness to view the suspect during the
commission of the crime; the witness's degree of attention; the
accuracy of the witness's prior description of the suspect; the
level of certainty demonstrated by the witness at the
confrontation; and the length of time between the crime and the
confrontation. Biggers, 409 U.S. at 199-200. Applying these
factors to the showup in this case, we find the showup was not
impermissibly suggestive. Callaghan had ample opportunity to
observe the man she alleged had tried to entice her into his car;
5
For example, at the preliminary hearing Callaghan testified
that Brodnicki wore a green, red, and yellow shirt, and had gray
hair. This is irrelevant to our probable cause analysis because it
happened after the police officers already had arrested Brodnicki
based on their determination that they had probable cause to do so.
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it was daytime and her view of the driver was not obstructed. She
gave the police a detailed description of the man and the car that
he allegedly was driving. Her description of the man did not
precisely fit Brodnicki, but was not totally off the mark either;
the inconsistencies were not so glaring as necessarily to cast
doubt on her story. She was certain in her identification of
Brodnicki at the showup. The showup took place on the same
afternoon as the alleged incident and within an hour of Callaghan's
report of the incident to the police. In these circumstances, we
conclude that the showup created, at most, only a minimal
likelihood of misidentification, and that it therefore was not
unreasonable for the police officers to rely on Callaghan's
positive identification of Brodnicki in making their probable cause
determination.
Because we conclude that the officers had probable cause to
arrest Brodnicki, he has no basis for his § 1983 claim against
them. See Warren v. City of Lincoln, 864 F.2d 1436, 1441 (8th
Cir.), cert. denied, 490 U.S. 1091 (1989). In addition, since the
officers did not violate Brodnicki's constitutional rights, it
follows that Brodnicki's claim against the City of Omaha under a
theory of inadequate training or municipal custom lacks merit. See
e.g., Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994)
(holding that city cannot be held liable on a failure to train
theory unless the police officer is found liable on the underlying
substantive claim). Accordingly, the District Court did not err in
granting summary judgment for the officers and the City on
Brodnicki's § 1983 claims against them. We need not and do not
consider the officers' qualified immunity defense, which the
District Court did not address, presumably because the record that
already had been developed so clearly supported the officers'
alternative motion for summary judgment on the merits.
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III.
Brodnicki argues that the District Court improperly granted
summary judgment on his § 1983 claim against county attorney
Jansen. Claiming that Jansen violated his due process rights in
prosecuting him for attempted kidnapping, Brodnicki contends that
Jansen's actions during the handling of his criminal case fell
outside the protection of absolute immunity normally afforded
prosecutors. Brodnicki asserts that he was deprived of due process
when Jansen stepped outside of his role as advocate for the state
and instead took on administrative functions akin to a police
detective. According to Brodnicki, Jansen is not entitled to
absolute immunity for: (1) Jansen's request to examine certain
polygraph charts; (2) Jansen's oversight of his investigator who
interviewed potential alibi witnesses in preparation for a bond
revocation hearing; and (3) a meeting held between Jansen and
Brodnicki's counsel, at the latter's request, to discuss the case.
We hold that the District Court correctly concluded that Jansen is
entitled to absolute immunity.
Prosecutors may be entitled to either absolute or qualified
immunity from civil liability under 42 U.S.C. § 1983 for actions
undertaken pursuant to their official duties. If the prosecutor is
acting as advocate for the state in a criminal prosecution, then
the prosecutor is entitled to absolute immunity. Buckley v.
Fitzsimmons, 113 S. Ct. 2606, 2615 (1993). Absolute immunity
covers prosecutorial functions such as the initiation and pursuit
of a criminal prosecution, the presentation of the state's case at
trial, and other conduct that is intimately associated with the
judicial process. Id.; Imbler v. Pachtman, 424 U.S. 409, 430-31
n.33 (1976). In contrast, a prosecutor is entitled only to
qualified immunity when he pursues actions in an "investigatory" or
"administrative" capacity. Buckley, 113 S. Ct. at 2616. In
determining whether particular actions of government officials fit
within the absolute or qualified immunity standard, the Supreme
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Court has adopted a functional approach that looks to "the nature
of the function performed, not the identity of the actor who
performed it." Forrester v. White, 484 U.S. 219, 229 (1987)
(finding state court judge does not have absolute immunity from
damages suit for his administrative decision to demote and dismiss
a court employee); see also Buckley, 113 S. Ct. at 2618 (holding
prosecutor's comments to the media have no functional tie to the
judicial process because they do not involve presentation of
state's case in court or initiation of prosecution); Burns v.
Reed, 500 U.S. 478, 494 (1991) (finding absolute immunity from
liability for damages under § 1983 does not apply to state
prosecutor's giving of legal advice to police but does extend to
his participating in probable cause hearing); Imbler, 424 U.S. at
431 (holding prosecutor is absolutely immune from activity of
initiating prosecution or for actions taken in presenting state's
case).
Brodnicki asserts that Jansen's review of the polygraph
results was investigative work usually performed by the police, and
therefore Jansen is not entitled to absolute immunity. We
disagree. While it may be true that some of Jansen's actions on
this case are similar to those performed by the police or other
administrative agents of the state, our inquiry focuses not on
whether the act could be performed by the police as investigators,
but rather on whether the act was closely related to Jansen's role
as an advocate for the state. See Buckley, 113 S. Ct. at 2615. It
is fundamental that "[p]reparation both for the initiation of the
criminal process and for trial, may require the obtaining,
reviewing, and evaluating of evidence." Imbler, 424 U.S. at 431
n.33. In this case, Brodnicki's counsel brought the results of
Brodnicki's polygraph test to Jansen in an effort to persuade him
to dismiss the case. As county attorney, Jansen was under a duty
to review this information as part of his role as advocate for the
state. Jansen reviewed the polygraph results to determine whether
the case should proceed or should be dismissed. Jansen is entitled
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to absolute immunity for these actions. To hold otherwise would be
to fashion a rule that would allow defense counsel to defeat
absolute immunity by initiating a meeting with the prosecutor and
asking the prosecutor to review the case with an eye toward
dismissal of the charges. Such a rule has no support in the law
and will not be countenanced here.
Brodnicki also asserts that because Jansen had not assigned
Brodnicki's case to himself (a deputy county attorney had been
placed in charge of the case) and because, according to Brodnicki,
Jansen played merely an administrative role in the case, he is
entitled only to qualified immunity. This argument is without
merit. One of Jansen's responsibilities as county attorney
includes supervision of all of the deputy county attorneys in both
criminal and civil matters. It is irrelevant that Jansen was not
the trial attorney assigned to Brodnicki's case. As county
attorney, Jansen is the person to whom his deputy county attorneys
must come for permission to dismiss a case. At oral argument,
Brodnicki's counsel conceded that the primary reason he went to
Jansen with the polygraph results was to persuade Jansen to dismiss
the charges. In short, counsel asked Jansen to exercise his
professional judgment and Jansen did so, although not with the
immediate result counsel wished. It is precisely the exercise of
professional judgment of this sort that is at the core of Jansen's
role as advocate for the state. We thus conclude that Jansen is
absolutely immune for the decisions that he made with respect to
the disposition of Brodnicki's case. See Zar v. South Dakota Bd.
of Examiners, 976 F.2d 459, 466 (8th Cir. 1992); Williams v.
Hartje, 827 F.2d 1203, 1210 (8th Cir. 1987).
Brodnicki maintains that Jansen is not entitled to absolute
immunity with respect to the interviews that Jansen's investigator
conducted with Brodnicki's potential witnesses. Here again,
Brodnicki's arguments are without merit. These interviews were
conducted during the pendency of a proceeding to revoke Brodnicki's
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release on bond.6 Brodnicki concedes that the interviews could be
viewed either as preparation for the revocation hearing or as an
evaluation of the reliability of the witnesses. Under either view,
Jansen was carrying out his responsibilities as advocate for the
state and is entitled to absolute immunity.
Finally, Brodnicki argues that Jansen erred in believing that
Brodnicki was guilty of a crime and in deciding to pursue a
criminal action against him. This argument misses the point.
While Brodnicki may believe that Jansen's decision to pursue the
case was incorrect, Jansen does not have to defend alleged
prosecutorial mistakes if those mistakes occurred in the
performance of a function recognized as inherent in his role as
advocate for the state. Myers v. Morris, 810 F.2d 1437, 1446 (8th
Cir.), cert. denied, 484 U.S. 828 (1987). The decisions relating
to the initiation and dismissal of cases are at the very heart of
a prosecutor's function as an advocate for the state, and absolute
immunity thus attaches to those decisions.
Having considered all Brodnicki's arguments, we hold that the
District Court was correct in dismissing Brodnicki's claims against
Jansen on the ground that Jansen is entitled to absolute immunity
from suit on those claims.
6
One of the conditions of Brodnicki's release on bond was that
he have no contact with Callaghan. Callaghan reported that
Brodnicki, while released on bond, had attempted to contact her at
her home. A revocation hearing was held before the district court
of Douglas County to determine if in fact Brodnicki had violated
this condition of his release on bond. Because of time problems,
the court was unable to hear the testimony of Brodnicki's
witnesses, and the hearing was ordered continued, without a date
certain being set for its resumption. During the continuance, the
county attorney's office sent an investigator to interview
Brodnicki's witnesses. The bond revocation proceedings were not
pursued and the case later was dismissed.
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IV.
For the foregoing reasons, the judgment of the District Court
is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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