concurring.
In my judgment it is factually clear the state police officers lacked probable cause to arrest McIntosh for disorderly conduct. I would so hold that there existed no probable cause to arrest McIntosh as a matter of law. At the time of his arrest, McIntosh was standing in a public access area of a public building. The uncontradicted testimony at trial revealed that McIntosh was neither loud nor disruptive prior to his arrest, and that he did not use abusive or profane language when requesting entrance to the luncheon. The district court conceded that the probable cause issue was a “close question,” but stated it was convinced by the officers’ “forthright testimony, their courteous treatment of Mr. McIntosh and the fact that Mr. McIntosh did refuse their lawful order to leave the premises.” I cannot accept the court’s reasoning. McIntosh had every right to be in the public hallway, and therefore the officers’ order to leave the premises was not “lawful.” In fact, McIntosh had paid $125.00 for a ticket to attend the luncheon. The officers’ conduct in arresting, handcuffing, and hauling McIntosh to the North Little Rock Police Station (although he was arrested in Little Rock) where he was jailed, interrogated, and detained for over two hours until the luncheon was over, can hardly be termed “courteous.” Finally, although the officers’ testimony may indeed have been forthright, I fail to see how the officers’ testimony that McIntosh “was not loud or disruptive at any time prior to his arrest” lends support to the district court’s erroneous finding that probable cause existed to arrest McIntosh for disorderly conduct. Under these circumstances, I would also hold that the officers’ conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known,” thus depriving the officers of the defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).