Mangieri v. Clifton

United States Court of Appeals,

Fifth Circuit.

No. 93-1488.

Robert E. MANGIERI, Plaintiff-Appellee,

v.

W. CLIFTON, et al., Defendants,

W. Clifton and Gordon Hager, Defendants-Appellants.

Aug. 25, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before GOLDBERG, KING and WIENER, Circuit Judges.

GOLDBERG, Circuit Judge:

Dallas Police Officers Walter M. Clifton and Gordon Hager

appeal the district court's denial of their motion for summary

judgment on the grounds of qualified immunity. The district court

found that a question of fact precluded summary judgment because

there was still a controversy as to whether the defendant officers

acted reasonably when they arrested the plaintiff, Robert Mangieri,

for violating the Texas disorderly conduct statute.1 Finding that

no material factual dispute exists that would hinder a decision on

qualified immunity as a matter of law, we conclude that these

officers acted in an objectively reasonable manner under the

circumstances of Mangieri's arrest. We therefore reverse and

remand this case with directions to enter judgment for appellants.

I. Facts

1
Tex.Penal Code Ann. 42.01(a) (West 1989).

1
 The basic facts of this case are not in dispute. On Saturday,

September 28, 1986, Robert Mangieri participated in an

anti-abortion protest outside of a Dallas, Texas women's health

clinic. Mangieri was standing on a grassy area next to the

clinic's parking lot and was using a bullhorn set at full volume to

communicate his opposition to abortion. Although Mangieri directed

the bullhorn towards the clinic itself and the patients entering

the clinic, the sound could also be heard in nearby apartments.

Officers Clifton and Hager were dispatched to the location of

a neighboring residence after the police received complaints from

the residents regarding the loud noise. The officers entered the

complainant's apartment and spoke with the two occupants. The

complainants stated that the noise was annoying and disturbing to

them and that it recurred every Saturday. The officers could hear

the noise made by Mangieri while they stood in the apartment. They

described the sound as annoying and "quite audible". Having

confirmed the disturbance created by the amplified voice, the

officers exited the apartment and approached Mangieri who was

continuing to speak through the bullhorn. The officers did not

observe any other persons using a bullhorn. Officer Clifton walked

up behind Mangieri and arrested him for disorderly conduct, giving

no warning prior to the arrest.2 Charges against Mangieri were

2
The disorderly conduct statute, Tex.Penal Code Ann. §
42.01(a) (West 1989), provides:

A person commits an offense if he intentionally or
knowingly:

(5) makes unreasonable noise in a public place or in or

2
subsequently dropped.

Mangieri filed the instant 42 U.S.C. § 1983 lawsuit on

September 20, 1988 against officer Clifton, an unnamed officer John

Doe,3 the City of Dallas, and various other defendants. Mangieri

alleged, inter alia, that Clifton and officer John Doe violated his

Fourth Amendment right to be free from false arrest.

On December 6, 1989, after the parties had been allowed

limited discovery, the defendants moved for summary judgment. In

this motion, the defendants asserted, in part, that Mangieri's

claim of false arrest failed as a matter of law and that the

officers were entitled to qualified immunity. The district court

denied summary judgment with respect to the false arrest claim and

with respect to the assertion of qualified immunity.4 As to the

false arrest claim, the district court concluded that a question of

material fact remained as to the reasonableness of the officer's

decision to arrest Mangieri. Similarly, as to qualified immunity,

the court stated: "The Defendant officers have not shown that they

should not have known that their conduct might have violated both

state law and the more restrictive city policy. Nor has the court

near a private residence that he has no right to
occupy.
3
Mangieri identified this officer through deposition
testimony as Officer Hager. Service of process, however, was
never effected with respect to Officer Hager and Hager alleges
that he has never made an appearance in this action. Hager has,
however, declined to press the issue of the court's personal
jurisdiction over him in the present interlocutory appeal.
4
The district court concluded that Hager too was not
entitled to assert a claim of qualified immunity even though
Clifton was the only party who had asserted the immunity.

3
determined whether the decision to arrest the Plaintiff without a

warning was reasonable."

Clifton filed a timely notice of appeal with respect to the

denial of his claim of qualified immunity. That appeal was later

withdrawn when the City of Dallas filed a motion for

reconsideration. The district court denied the motion for

reconsideration in its entirety on April 29, 1993. Clifton and

Hager appeal.5

II. Analysis

It is now well settled law that denials of summary judgment

motions based on a defendant's qualified immunity from suit are

subject to interlocutory appeal. Mitchell v. Forsyth, 472 U.S.

511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). On appeal,

5
Mangieri contends that Clifton and Hager's second notice of
appeal was not timely filed. We disagree. Fed.R.App.P. 4(a)(1)
requires that a notice of appeal be filed within thirty days of
the entry of the judgment or order appealed from. This thirty
day period is tolled under Fed.R.App.P. 4(a)(4), as to all
parties, however, if any party makes a timely motion to alter or
amend the judgment under Fed.R.Civ.P. 59. The thirty day period
for filing a notice of appeal does not begin to run until the
district court enters an order disposing of the motion for
reconsideration. Fed.R.App.P. 4(a)(4).

A motion for reconsideration is "deemed to arise under
Rule 59 if filed within rule 59's ten-day time limit"
regardless of the label applied to the motion. Richardson
v. Oldham, 12 F.3d 1373, 1377 (5th Cir.1994) (citing Harcon
Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,
669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107
S.Ct. 398, 93 L.Ed.2d 351 (1986)). Because the motion for
reconsideration in this case was filed within the 10-day
limit for Rule 59 motions, the thirty day time period for
appealing was tolled. Therefore, the second notice of
appeal filed on May 27, 1993, was made within thirty days of
the denial of the motion for reconsideration, filed on April
29, and was therefore timely.

4
we review a denial of summary judgment based upon qualified

immunity de novo, examining the evidence in the light most

favorable to the non-movant. Pfannstiel v. City of Marion, 918

F.2d 1178, 1183 (5th Cir.1990).

The question of qualified immunity must be addressed as a

threshold issue because this issue determines a defendant's

immunity from suit, that is, his or her ability to avoid a trial

altogether, rather than merely his or her immunity from damages.

Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 1081, 127 L.Ed.2d 397 (1994); see also

Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793-94,

114 L.Ed.2d 277 (1991). A police officer is entitled to claim the

cloak of qualified immunity "unless it is shown that, at the time

of the incident, he violated a clearly established constitutional

right." Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993).

We have jurisdiction to review a summary judgment denial of

qualified immunity only to the extent that "it turns on an issue of

law." Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817. Because the

district court determined that a question of fact exists regarding

the reasonableness of the probable cause to arrest determination,

Mangieri contends that we lack jurisdiction to hear this appeal.

We do not agree.

We recently determined that a district court errs in "holding

that the objective reasonableness prong of the qualified immunity

standard is generally a factual question for the jury." Lampkin v.

City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993). Following the

5
Supreme Court's decision in Hunter v. Bryant, 502 U.S. 224, ----,

112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991), we held that in

evaluating a claim of qualified immunity, the district court is to

make a determination of the objective reasonableness of the

official's act as a matter of law. Lampkin, 7 F.3d at 434-35.

Our interpretation of Hunter does not preclude the

possibility that a disputed question of fact might still eliminate

our jurisdiction to hear an appeal of a denial of summary judgment.

"[E]ven though [Hunter ] diminished the jury's role in qualified

immunity cases, it did not entirely abolish it." Lampkin, 7 F.3d

at 430. A denial of summary judgment based on a material factual

dispute would still be appropriate if there are "underlying

historical facts in dispute that are material to the resolution of

the questions whether the defendants acted in an objectively

reasonable manner." Id. The parties in Lampkin disputed whether

force was used against the plaintiffs, the amount of time the

plaintiffs were detained, and whether any reason existed to detain

the plaintiffs. We concluded that this court would be unable to

make the determination of the objective reasonableness of the

officer's activities "without settling on a coherent view of what

happened in the first place." Id.6

6
Similarly, in Johnston v. City of Houston, we held that
"the differing accounts of the various" parties precluded summary
judgment on the basis of qualified immunity. 14 F.3d 1056, 1061
(5th Cir.1994). The parties in this case had "divergent versions
of what happened" with regards to the force used by the police,
the attempt by the arrestee to strike the arresting officer, and
the effort by the officer to diffuse the situation. Id. at 1058.

6
 In this case, however, there is general agreement as to the

factual events that gave rise to this lawsuit. Mangieri was using

a bullhorn at full volume when the officers, responding to a

disturbance call, witnessed the disturbance for themselves and then

proceeded to arrest Mangieri without first admonishing him to stop.

The only material factual dispute revolves around the

reasonableness of the officer's decision to arrest Mangieri without

first issuing a warning. Motions for summary judgment based on

qualified immunity are, in the normal course of events, to be

resolved as a matter of law. See Hunter, 502 U.S. at ----, 112

S.Ct. at 537 ("Immunity ordinarily should be decided by the court

long before trial."). Because the historical factual background of

this case is not in controversy, the district court erred in

refusing to consider the motion for summary judgment because of the

disputed issue of the reasonableness of the police officer's

decision to arrest Mangieri.

We proceed at this point to an evaluation of the officer's

claim of qualified immunity. In determining the applicability of

qualified immunity, we employ a two step analysis. "[W]e must

first consider whether the asserted constitutional injury involved

a clearly established right at the time of the unfortunate event."

Hare v. City of Corinth, Ms., 22 F.3d 612, 614 (5th Cir.1994). The

right to be free from arrest without probable cause is a clearly

established constitutional right. See Beck v. Ohio, 379 U.S. 89,

91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (The constitutionality

of an arrest depends upon "whether, at the moment the arrest was

7
made, the officers had probable cause to make it.").

In the second analytical step, we consider whether the

official's actions were objectively reasonable. Anderson v.

Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523

(1987). Objective reasonableness is assessed in light of legal

rules clearly established at the time of the incident. Pfannstiel,

918 F.2d at 1183. For warrantless arrests, the test for whether

the "police officer ha[d] probable cause to arrest [is] if, at the

time of the arrest, he had knowledge that would warrant a prudent

person's belief that the person arrested had already committed or

was committing a crime." Duckett v. City of Cedar Park, 950 F.2d

272, 278 (5th Cir.1992).7

Police officers who "reasonably but mistakenly conclude that

probable cause is present" are entitled to qualified immunity.

Hunter v. Bryant, 502 U.S. at ----, 112 S.Ct. at 536 (quoting

Anderson, 483 U.S. at 641, 107 S.Ct. at 3040). "The qualified

immunity standard "gives ample room for mistaken judgments' by

protecting "all but the plainly incompetent or those who knowingly

violate the law.' " Id. at ----, at 537 (quoting Malley v. Briggs,

475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).

Similarly, "[t]he Constitution does not guarantee that only the

7
See also Beck, 379 U.S. at 91, 85 S.Ct. at 225 (Whether an
arrest is valid depends upon whether at the moment of arrest,
"the facts and circumstances within [the police officer's]
knowledge and of which [the officer] had reasonably trustworthy
information were sufficient to warrant a prudent man in believing
that the [arrestee] had committed or was committing an
offense."); Bennett v. City of Grand Prairie, Tex., 883 F.2d
400, 404 (5th Cir.1989) (same).

8
guilty will be arrested. If it did, § 1983 would provide a cause

of action for every defendant acquitted—indeed, for every suspect

released." Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689,

2695, 61 L.Ed.2d 433 (1979).

The central question in the instant case turns on whether

probable cause existed to arrest Mangieri. "Probable cause is a

defense to a § 1983 claim based on an alleged false arrest."

Pfannstiel, 918 F.2d at 1183. In the instant case, the officers

arrested Mangieri based upon their belief that Mangieri had

violated the Texas disorderly conduct statute prohibiting the

making of "unreasonable noise in a public place or in or near a

private residence he has no right to occupy."8 The officers made

the arrest after entering the complainants apartment, hearing the

offending noise, and finding Mangieri engaged in the use of a

bullhorn in a location near to the residence.

In enacting this statute, the Texas legislature recognized the

First Amendment difficulties that could arise when the police are

given too free a reign in apprehending those who, in the course of

exercising their right to speak, create disturbing noise. Section

42.04 provides a defense to prosecution where the offending conduct

consists of speech. This defense provides that a defendant must be

"ordered to move, disperse or otherwise remedy the violation prior

to his arrest if he has not yet intentionally harmed the interest

of others which those sections seek to protect."9 In this case,

8
Tex.Penal Code Ann. § 42.01(a)(5).
9
Tex.Penal Code Ann. § 42.04.

9
probable cause to arrest without a warning would exist, therefore,

only if a prudent person would have concluded that Mangieri was

intentionally engaging in conduct aimed at harming the interests of

others.

Mangieri contends that based upon the facts of his arrest,

that he was quite a distance away from the apartments in question10

and that he was directing the bullhorn away from the apartments, no

reasonable officer could have concluded that he intended to harm

the interests of the apartment dwellers. We need not confront this

contention because probable cause nevertheless existed to arrest

Mangieri. Even assuming that Mangieri is correct that it was not

reasonable to believe he intended to harm the apartment dweller's

peace, it was reasonable for the officers to believe that Mangieri

intended to engage in a violation of the disorderly conduct

statute.

The subjective beliefs of Clifton and Hager as to what facts

they relied upon in forming the probable cause to arrest Mangieri

are irrelevant to the objective reasonableness of their actions.

Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. The issue here is an

"objective (albeit fact-specific) question whether a reasonable

officer could have believed" that he was violating a person's

constitutionally protected rights under the circumstances of the

10
There is some dispute as to whether the apartments were
100 feet away as alleged by the defendants or 200 feet as alleged
by Mangieri. The precise distance between Mangieri and the
complainant's residence, however, is not directly pertinent to
our analysis of the reasonableness of the officer's decision
given the undisputed testimony of the officers that the noise in
the apartment was annoying and "quite audible".

10
complained of action. Id. For this reason, we have held that

"[e]ven if there was not probable cause to arrest the plaintiff for

the crime charged, proof of probable cause to arrest the plaintiff

for a related offense is also a defense" to a false arrest section

1983 claim. Pfannstiel, 918 F.2d at 1183.

A reasonable officer could have concluded from the

circumstances surrounding Mangieri's arrest, that he was

intentionally or knowingly making unreasonable noise in a public

place and that he intended to harm the interests of people in that

place in violation of the disorderly conduct statute. Even if he

had no intention of disrupting the people in the nearby residences,

Mangieri does not dispute that he was attempting to dissuade women

from entering the clinic. A reasonable officer could therefore

have concluded that by directing at the clinic a bullhorn set at

full volume, Mangieri intended to harm the interests of clinic

patients and personnel as they entered and left the clinic and who

were therefore sharing the public space with him. When they saw

Mangieri intentionally disrupting the peace in the public area

outside the clinic, the officers possessed the requisite

objectively reasonable basis for probable cause to arrest him

without a warning.

Texas law states that "[a] person is nevertheless criminally

responsible for causing a result if the only difference between

what actually occurred and what he desired, contemplated, or risked

is that ... a different person or property was injured, harmed, or

otherwise affected." Tex.Penal Code Ann. § 6.04(b) (West 1994).

11
Under this statute, it would have been objectively reasonable for

a police officer to imply a transfer of Mangieri's intent to harm

the interests of the clinic patients and staff to an intent to harm

the apartment dwellers situated within the sounding disquietude of

his bullhorn.

Notice and warning before the arrest was not required in this

case because Mangieri's was intentionally engaged in activities to

harm the rights of people within the sound area of the horn.

Mangieri, with his auditory assault, intended to disturb the peace

of those who sought medical attention at the women's health clinic

and who had no desire to be subjected to his vituperations. The

officers who arrested him, therefore, met their obligation to act

in a reasonable manner when they did not warn him prior to that

arrest.11

In sum, a reasonable officer could have concluded that

probable cause existed to arrest Mangieri. For this reason,

qualified immunity was improperly denied the appellants. See

Pfannstiel, 918 F.2d 1183-84. Mangieri has failed to convince us

that the officers here were "plainly incompetent" or that they

"knowingly violate[d] the law" and therefore these officers cannot

be subjected to section 1983 liability for their actions in this

case. Malley v. Briggs, 475 U.S. at 343, 106 S.Ct. at 1096.

11
Mangieri also contends that his Constitutional rights were
violated when the officers failed to abide by a police department
policy that required a warning be given prior to an arrest for
making unreasonable noise. Mangieri has not cited any authority
for his contention that a violation of this police policy gives
rise to a deprivation of rights secured by the Constitution.

12
III. Conclusion

The district court's denial of summary judgment on Mangieri's

false arrest claim was erroneous. The judgment of the district

court is therefore REVERSED and we REMAND this case with

instructions to enter judgment for officers Clifton and Hager on

the basis of qualified immunity.

. . . . .

13