(dissenting) :
The key issue is whether the district court erred in ruling as a matter of law that Bergstralh had failed to make a prima facie showing that he had been illegally arrested. The district court took the probable cause issue from the jury on two grounds: (1) Under Oregon law, applicable to this civil rights action, Bergstralh’s conviction for resisting arrest created a presumption that the arrest was supported by probable cause, absent proof that the conviction was obtained by fraud, perjury, or other corrupt means, and (2) testimony of some of Bergstralh’s witnesses would have supported a finding of probable cause. Neither ground is sustainable.
As my brother Chambers recognizes, the Oregon presumption, if any there be,1 cannot be applied to the federal right here asserted. He asserts, however, that the district court’s erroneous reliance on the presumption was harmless error because Bergstralh did not prove a prima facie case of illegal arrest under federal law standards. We cannot be sure that the district court would have taken the issue from the jury had it- been aware that the Oregon law was inapplicable — although the record strongly indicates that it would not have done so; therefore, we cannot properly say that the error was harmless.
Even if the district court had completely disregarded the presumption, the record does not support the removal of the issue from the jury. This case presents the situation described in the footnote that my brother Chambers quotes from Martin v. Duffie (10th Cir. *12811972) 463 F.2d 464, 469 n. 6: “[T]here may be instances in which the plaintiff’s evidence itself creates an issue of fact. . . . ”2 Bergstralh was arrested without a warrant, and no justification for the arrest existed unless he had committed a misdemeanor in the arresting officer’s presence. The only misdemeanors that appear to have been potentially in that category were' Berg-stralh’s throwing bottles into the street and his resistance to an arrest accomplished without excessive force. The testimony on both the bottle episode and the amount of force used to arrest him was conflicting. None of the evidence was inherently incredible. The conflicts were of .the garden variety that are the common accompaniment of the testimony of eye witnesses who perceive and recall the same event differently. Resolution of those conflicts was a task for the jury.
I would reverse and remand for a new trial.
504 F.2d — 81
. The district court concluded that Oregon had adopted Restatement of Torts § 667. Section 667 states that, in a malicious prosecution action probable cause is to be presumed from proof of the fact that the arrestee was convicted of the offense for which he was arrested, absent proof of taint in obtaining the conviction. The district court’s conclusion was based on Hryciuk v. Robinson (1958), 213 Or. 542, 326 P.2d 424. Sryciule, held that commitment by a magistrate was prima facie evidence of probable cause to arrest in a malicious prosecution action; it distinguished Trullinger v. Dooly & Co. (1928), 125 Or. 269, 266 P. 909 which held that proof of conviction was conclusive proof of probable cause in a malicious prosecution action. The vitality of Trullinger is dubious, but even if Trullinger survives, neither that ease nor Hryciuk adopted section 667. To the extent that Trullinger is the law of Oregon, it is an adjunct of its substantive law of malicious prosecution; it is not a part of the Oregon law of arrest. ' The effect of the presumption is to foreclose recovery for malicious prosecution, even if the arrest was without probable cause, when that arrest was followed by a conviction that is immune from attack on the specified grounds. Moreover, neither Oregon law nor the Restatement purported to formulate a rule applicable to a cause of action that resembles a federal civil rights action.
. The court in Martin held that the plaintiff’s proof of a warrantless arrest, the officers’ fruitless prior searches, and the subsequent filing of charges later dismissed established prima facie want of probable cause. The plaintiff was not required “to search out the subjective viewpoints of the arresting officers in a quest for information as to whether probable cause in a practical sense existed.” (463 F.2d at 468.) “[G]ood faith and probable cause [are] defenses,” and are so characterized in Pierson v. Ray (1967) 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (463 F.2d at 468.) Our problem did not arise in Martin because the evidence in the plaintiff’s case-in-chief was not conflicting, and the trial was without a jury.