IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-10458
Summary Calendar
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JAMES G. GIBSON,
Plaintiff-Appellee,
versus
OFFICER P.A. RICH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(January 26, 1995)
Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.
JOHNSON, Circuit Judge:
Defendant appeals the federal district court's order denying
its summary judgment based on qualified immunity. For the reasons
stated below, this Court will reverse the denial of qualified
immunity and remand the case to the federal district court for
further proceedings.
I. Facts and Procedural History
On Friday, July 5, 1991, James Gregory Gibson ("Gibson") and
his wife, Sandra, went to a Dallas billiards bar. While at the
1
bar, Gibson and Sandra shared a pitcher of beer and played pool.1
Before leaving the bar, the couple began arguing. The argument
continued in the car when the couple left to return home. Sandra
became so irritated by the argument that she stopped the car,
exited, and began to walk home on a major interstate. Gibson drove
the car home without Sandra.
While walking home Sandra became distressed and called the
Garland police department to request help.2 The police dispatched
Officer P.A. Rich ("Officer Rich") to the scene to assist Sandra.
When Officer Rich arrived at Sandra's location and heard her story,
he decided to escort her home.
When Officer Rich and Sandra arrived at the apartments where
the Gibsons lived, Officer Rich saw Gibson sitting in the driver's
seat of his parked car with the door open and one leg extended out
of the car. Gibson had in his possession an anti-theft device
known as "the Club," which a car owner uses to lock a car's
steering column in place. Upon identifying Gibson as Sandra's
husband, Officer Rich instructed Sandra to remain in the patrol car
while he spoke with Gibson.
Officer Rich then approached Gibson and identified himself.
1
Neither Gibson nor Sandra could recall exactly how many
glasses of beer each individually consumed from the pitcher. In
addition to the pitcher at the billiards bar, Gibson stated that he
could not recall whether he had any alcoholic beverages earlier in
the evening at dinner.
2
The facts are in dispute as to precisely why Sandra called
the police for help.
2
Officer Rich smelled alcohol on the breath of Gibson.3 Officer
Rich also stated that Gibson had blood shot eyes and was slurring
his speech.4 Additionally, after Officer Rich asked Gibson a few
questions, Gibson called Officer Rich "a fucking asshole." Based
on all these circumstances and his experience as a police officer,
Officer Rich formed the opinion that Gibson was intoxicated.5
Officer Rich also formed the opinion that Gibson was or could be a
danger to himself or others. Therefore, Officer Rich arrested
Gibson for public intoxication.
As Officer Rich was trying to get Gibson into the police car,
Sandra began objecting and otherwise interfering with the arrest.
At this time, Officer Rich also arrested Sandra for public
intoxication and then proceeded to the police station for
"booking." After Officer Rich and the Gibsons arrived at the
police station, the Gibsons began arguing again. The argument
culminated in Gibson kicking Sandra in the face.
3
In addition to the other alcohol, after Gibson arrived home
he immediately opened another beer, took a drink, and then returned
to his car in the parking lot for the apparent purpose of securing
his car with "the Club."
4
While Gibson does not dispute that he had the pitcher of beer
nor that he smelled of alcohol, he does dispute that he had blood
shot eyes and slurred speech. Even assuming in Gibson's favor,
which we must do since he is the non-movant in this summary
judgment proceeding, the totality of the circumstances still
provided Officer Rich with an objectively reasonable basis to
arrest Gibson for public intoxication.
5
Assisting Officer Rich that night was the security guard of
the apartment complex, who happened to be an off-duty police
officer himself. The other officer swore in his summary judgment
affidavit that Gibson appeared to be intoxicated on the evening in
question.
3
Gibson was formally charged with assault for kicking his wife.
The charge was later changed to retaliation; however, the grand
jury no-billed Gibson on the retaliation charge. No charge of
public intoxication was pursued by the district attorney. Gibson
sued Officer Rich for false imprisonment, malicious prosecution,
and violation of his civil rights under section 1983. Officer Rich
filed a motion for summary judgment asserting qualified immunity.
The district court denied the motion and Officer Rich now appeals
that denial.6
II. Discussion
This Court reviews the denial of a summary judgment de novo,
using the same criteria used by the district court. Fraire v. City
of Arlington, 957 F.2d 1268, 1273 (5th Cir.), cert. denied, 113 S.
Ct. 462 (1992). The Court reviews the "evidence and inferences to
be drawn therefrom in the light most favorable to the non-moving
party." Id. Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED. R. CIV. P. 56(c). When a
proper motion for summary judgment is made, the non-moving party
must set forth specific facts showing that there is a genuine issue
for trial. FED. R. CIV. P. 56(e); see Anderson v. Liberty Lobby,
6
Officer Rich also raises issues in his brief other than that
of qualified immunity. However, these other issues cannot be
considered by the Court at this time since an interlocutory appeal
under 28 U.S.C. § 1291 is limited to the issue of qualified
immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
4
Inc., 477 U.S. 242, 250 (1986). The mere allegation of a factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment. Fraire, 957 F.2d at 1273.
A dispute about a material fact is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-moving
party. See Anderson, 477 U.S. at 248. Material facts are facts
that might affect the outcome of the suit under the governing law.
Id.
Qualified immunity shields government officials performing
discretionary functions from liability unless their conduct
violates clearly established statutory or constitutional rights of
which a reasonable person would have known. Babb v. Dorman, 33
F.3d 472, 477 (5th Cir. 1994). The protection afforded by the
defense is an "immunity from suit, not simply immunity from
liability." Id. (quoting Geter v. Fortenberry, 849 F.2d 1550, 1552
(5th Cir. 1988)). Consequently, the immunity issue must be
resolved at the earliest possible stage of the litigation since it
entails an entitlement to immunity from suit and not merely a
defense to liability. See Hunter v. Bryant, 112 S. Ct. 534, 536
(1991).
In suits alleging illegal arrest, the qualified immunity
determination turns on whether a reasonable officer could have
believed the arrest to be lawful, in light of clearly established
law and the information the officer possessed. Babb, 33 F.3d at
477. Even law enforcement officials who reasonably, but
mistakenly, conclude that probable cause is present are entitled to
5
immunity. Anderson v. Creighton, 483 U.S. 635, 641 (1987); Babb,
33 F.3d at 477. The qualified immunity defense "'gives ample room
for mistaken judgments' by protecting 'all but the plainly
incompetent or those who knowingly violate the law.'" Hunter v.
Bryant, 112 S. Ct. 534, 537 (1991) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). Thus, if officers of reasonable competence
could disagree on whether or not there was probable cause to arrest
a defendant, immunity should be recognized. Babb, 33 F.3d at 477.
Given the smell of alcohol, Officer Rich's knowledge that
Gibson had shared a pitcher of beer with Sandra, Gibson's
belligerence, and the cumulative circumstances of the night in
question, Officer Rich acted as a reasonable officer could have
acted in arresting Gibson for public intoxication. This Court is
not willing to second guess the officer on the beat who must act on
the spur of the moment if that officer's action can be classified
as "arguably reasonable." Certainly the smell of alcohol on
Gibson's breath, the officer's knowledge of Gibson's drinking a
pitcher of beer with his wife, and Gibson's belligerent attitude
made it "arguably reasonable" for Officer Rich to believe that
Gibson was intoxicated that night. The fact that Gibson was in the
driver's seat of his car renders Officer Rich's decision that he
presented a potential danger to the public reasonable since
intoxicated drivers are a grave threat to the public.
Additionally, the ongoing arguments throughout the night between
Gibson and his wife could have led Officer Rich to believe that
there was a possibility of Gibson becoming a danger to his wife.
6
Such circumstances present the precise type of scenario in which a
police officer needs discretion to act.7 Because Officer Rich was
exercising reasonable discretion based on his perception of the
circumstances on the scene, we find that he was entitled to
qualified immunity on the false arrest, malicious prosecution, and
section 1983 claims to the extent they were grounded on a wrongful
arrest.8 Given the discretionary nature of Officer Rich's
decision, the qualified immunity should extend to the state claims
stemming from the arrest as well.
III. Conclusion
Officer Rich acted within the bounds of reason in arresting
7
The district court erred in believing that there were
disputed facts which prevented the qualified immunity summary
judgment from being granted. The district court held that Gibson's
allegation that he was not drunk put the issue of intoxication in
dispute. However, the district court errs in dwelling on the issue
of whether or not Gibson actually was drunk instead of on the issue
of whether Rich was reasonable in believing Gibson was intoxicated.
Despite Gibson's allegation otherwise, all facts in evidence
indicate that Rich was justified in believing that Gibson was
intoxicated. The other facts with which the district court
expressed concern were not material or necessary to the case and
therefore did not preclude summary judgment. For example, the
precise reason that Sandra exited the car on the way home from the
billiards bar is not material to whether Gibson was intoxicated or
dangerous to the public. Such immaterial disputes should not
result in a summary judgment denial.
8
Gibson claims that in addition to the public intoxication
charge, assault and retaliation were also wrongfully charged
against him by Rich. However, the assault charge developed after
the public intoxication arrest and given Gibson's admission that he
kicked his wife, it would certainly appear that this charge was
reasonably made. This retaliation charge could really only even
support the malicious prosecution claim since the false arrest and
§ 1983 claims require that the arrest itself be wrongful. Officer
Rich's involvement with the retaliation charge is unapparent from
the record; however, the degree of involvement should be resolved
in further district court proceedings.
7
Gibson for public intoxication given the cumulative circumstances
surrounding the arrest. Therefore, the judgment of the federal
district court denying Officer Rich's motion for summary judgment
is reversed, and the case is remanded to that court.
REVERSED AND REMANDED.
8