Pickens v. Hollowell

                  United States Court of Appeals,

                         Eleventh Circuit.

                              No. 94-9364

                      Non-Argument Calendar.

           Buelah Magdalene PICKENS, Plaintiff-Appellee,

                                  v.

Deputy Timothy HOLLOWELL, individually and as a Deputy Sheriff in
the County of Rockdale; Deputy Douglas Wilson, individually and as
a Deputy Sheriff in the County of Rockdale, Defendants-Appellants,

Rockdale County Sheriff Department;    Rockdale County, Defendants.

                          July 31, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-00830-CV-ODE), Orinda D. Evans,
Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

     CARNES, Circuit Judge:

     This appeal arises from Buelah Pickens' 42 U.S.C. § 1983

complaint alleging that she was arrested in violation of her

constitutional rights.    Timothy Hollowell and Douglas Wilson,

deputies in the Rockdale County Sheriff's Department, appeal the

district court's denial of their motion for summary judgment on the

basis of qualified immunity.    We reverse that denial.
                           I. BACKGROUND

     The relevant facts as found by the district court are not in

dispute.   On September 13, 1992, Buelah Pickens arrived at the

Rockdale County Jail to visit her son, an inmate in the jail.

Pursuant to the Rockdale County Sheriff's Department's normal

practice of conducting a criminal record check on all visitors,

Deputy Wilson checked the computer and discovered that there were
four warrants for Pickens' arrest on bad check charges.                  Wilson

called   the    Sheriff's       Department's     Warrant    Division,   and   was

informed that the warrants were still outstanding.

     After verifying the identity of Pickens by questioning her and

examining her driver's license, Wilson called his superior, Deputy

Hollowell, and apprised him of the situation.                   Hollowell then

obtained the actual warrants from the Warrant Division and met

Wilson and Pickens in the booking area of the jail.                     Pickens

testified in her deposition about the statements she made to Wilson

and Hollowell upon learning that she would be arrested:

     Q. And you say he took the purse from you?

     A. Snatched the purse from me and said, you're under arrest.
     And I said, this has to be on charges on checks that were
     stolen out of my car. And he said, I wouldn't know. And I
     said, what's the date on it? And he said, '87. And I said,
     I filed forgery charges on this.     You need to check into
     your—he said, my computer says 12 charges on you, and you're
     under arrest.

          And I said, well, check in your computer a little bit
     closer because I filed for forgery on this. They were stolen
     from me. I didn't write these checks, and I said, I thought
     the statute of limitations was two years on a misdemeanor.

Pickens also gave Hollowell the name of one of the investigators

that she claimed had knowledge of her forgery complaint. Hollowell

contacted the investigator, who acknowledged that Pickens had

reported forgery of her checks but was unable to remember any other

details.

     Despite her protests, Hollowell placed Pickens under arrest.

She was held in the jail for several hours before being released on

a cash bond.         The Rockdale County District Attorney subsequently

dismissed      the    charges    because   she    had   a   valid   statute    of

limitations defense.            The misdemeanor offenses upon which the
arrest warrants were based had a two-year statute of limitations,

and Pickens' arrest had occurred five years after the arrest

warrants were issued.

      Pickens filed suit under § 1983 against Wilson, Hollowell, the

Rockdale County Sheriff's Department, and Rockdale County.                     The

district court denied the defendants' motion for summary judgment.

The Sheriff's Department subsequently was dismissed from the case

pursuant to a stipulation approved by the district court.                 Wilson

and   Hollowell   appealed.       We        have   jurisdiction    over    their

interlocutory appeal from the district court's denial of summary

judgment on qualified immunity grounds.             Mitchell v. Forsyth, 472

U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).
                              II. DISCUSSION

                                       A.

      In its denial of summary judgment on the qualified immunity

issue, the district court stated that the only issue in the case

was whether the officers had violated the Fourth Amendment by
                     1
arresting Pickens.       Finding that "the right to be free from

unlawful arrest is a clearly established constitutional right" and

that a factual dispute existed about whether Wilson and Hollowell

knew that the statute of limitations for the charged offenses had

expired, the district court concluded that the "officers' knowledge

regarding   the   statute   of   limitations        issue   will   have   to   be

      1
      As the district court observed, Pickens' complaint is
somewhat unclear as to what constitutional provisions she alleges
were violated by her arrest and detention. The district court
analyzed the complaint as a Fourth Amendment claim, and Pickens
treats it as such in her brief to this Court. Accordingly, we
also use a Fourth Amendment analysis in reviewing the district
court's order.
submitted to the fact finder at trial before the court is able to

resolve the officers' entitlement to qualified immunity."

       We review de novo the denial of summary judgment on qualified

immunity grounds.      L.S.T., Inc. v. Crow, 49 F.3d 679, 683 (11th

Cir.1995).     This Court uses a two-part analysis to evaluate a

qualified immunity defense:

      First, the defendant government official must prove that he
      was acting within the scope of his discretionary authority
      when the allegedly wrongful acts occurred. If the defendant
      meets this burden, the plaintiff must then demonstrate that
      the defendant violated clearly established law based upon
      objective standards.

Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995).          There is

no question that Wilson and Hollowell were acting within their

discretionary authority when they arrested Pickens. Therefore, the

issue in this appeal is whether Pickens has met her burden under

the   second   prong   of   the   analysis   by   demonstrating   that   the

officers' actions violated clearly established law.

       In order for the law to be clearly established for purposes

of qualified immunity, "the law must have earlier been developed in

such a concrete and factually defined context to make it obvious to

all reasonable government actors, in the defendant's place, that

"what he is doing' violates federal law."         Lassiter v. Alabama A &

M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994)

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

3039, 97 L.Ed.2d 523 (1987)).        "When considering whether the law

applicable to certain facts is clearly established, the facts of

cases relied upon as precedent are important.          The facts need not

be the same as the facts of the immediate case.          But they do need

to be materially similar."         Adams v. St. Lucie County Sheriff's
Dep't,    962     F.2d   1563,      1575    (11th       Cir.1992)     (Edmondson,   J.,

dissenting), approved en banc, 998 F.2d 923 (11th Cir.1993).                        Mere

recitations of general rules or abstract rights do not demonstrate

that the law was clearly established at the time of the relevant

conduct.       Lassiter, 28 F.3d at 1150;           see also Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993) ("If case law, in

factual terms, has not staked out a bright line, qualified immunity

almost always protects the defendant."), modified on other grounds,

14 F.3d 583 (11th Cir.1994).

         The    Fourth   Amendment         is    violated   by   an    arrest   without

probable cause.        E.g., Lowe v. Aldridge, 958 F.2d 1565, 1570 (11th

Cir.1992).       Probable cause exists if "the facts and circumstances

within the officer's knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe,

under the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense."                          Von Stein v.

Brescher,       904   F.2d   572,    578        (11th   Cir.1990).       However,    the

appropriate inquiry for qualified immunity is not whether there was

probable cause, but whether there was "arguable" probable cause to

arrest.     E.g., Swint v. City of Wadley, Ala., 51 F.3d 988, 996

(11th Cir.1995);         Post, 7 F.3d at 1558.            In other words, we "must

determine whether reasonable officers in the same circumstances and

possessing the same knowledge as the Defendants could have believed

that probable cause existed to arrest...."                   Von Stein, 904 F.2d at

579 (emphasis added);         see also Moore v. Gwinnett County, 967 F.2d

1495, 1497-98 (11th Cir.1992), cert. denied, --- U.S. ----, 113

S.Ct. 1049, 122 L.Ed.2d 357 (1993).
      The district court did not question, and Pickens does not

dispute, that the warrants which the deputies executed by arresting

her were supported by probable cause at the time they were issued.

In other words, the warrants were valid on their face insofar as

the affidavits attached to the warrants provided probable cause to

believe that Pickens had committed the offenses charged.                    Thus,

this is not the typical false arrest/Fourth Amendment case where

the merits issue is probable cause and the qualified immunity issue

is arguable probable cause.

      Instead, the issue in this case arises because the deputies

had at least some reason to believe—and for present purposes we

assume that they knew—that the statute of limitations period had

expired at the time they served the warrants by arresting Pickens.

The   merits   question    then    is     whether   it   violates    the   Fourth

Amendment for law enforcement officers to arrest based upon a

warrant supported by probable cause if they know that the statute

of limitations period has run.             But this case is not here for a

review on the merits;        it is here for a review of the district

court's qualified immunity ruling. The qualified immunity issue is

whether,   when   this    case    arose    in   1992,    the   law   was   clearly

established that the Fourth Amendment forbade an arrest based upon

an otherwise valid warrant if the arresting officers knew the

statute of limitations period had run.

      Pickens relies upon Malley v. Briggs, 475 U.S. 335, 106 S.Ct.

1092, 89 L.Ed.2d 271 (1986), and Garmon v. Lumpkin County, Ga., 878

F.2d 1406 (11th Cir.1989), but those cases are not helpful.                   Both

dealt   with   qualified    immunity       where    an   "officer    caused    the
plaintiffs to be unconstitutionally arrested by presenting a judge

with    a    complaint   and   a   supporting    affidavit   which      failed   to

establish probable cause."          Malley, 475 U.S. at 337, 106 S.Ct. at

1094;       see Garmon, 878 F.2d at 1410 (rejecting claim of qualified

immunity for officer who had no "objectively reasonable basis for

believing that his investigator's affidavit established probable

cause to arrest");       see also Kelly v. Curtis, 21 F.3d 1544, 1553-55

(11th Cir.1994) (discussing these and related cases).                   Malley and

Garmon clearly establish that a police officer is not protected by

qualified immunity if he applies for an arrest warrant where "a

reasonably well-trained officer ... would have known that his

affidavit failed to establish probable cause and that he should not

have applied for the warrant."           Garmon, 878 F.2d at 1410 (quoting

Malley, 475 U.S. at 345, 106 S.Ct. at 1098).              But that is not this

case.       As we have already discussed, everyone agrees that the

warrants in this case were issued upon probable cause to believe

that Pickens had committed the charged offenses.                 Moreover, these

two deputies did not cause the warrants to be issued, all they did

was execute them by arresting Pickens.                  See, e.g., Fullman v.

Graddick, 739 F.2d 553, 561 (11th Cir.1984) (executing officer

entitled to immunity where warrants valid on face and supported by

probable cause).

       Although Malley and Garmon are not very helpful in resolving

the issue at hand, two other decisions are.              The first one is Baker

v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979),

where the plaintiff was arrested and held in jail for three days

before      the   sheriff   discovered    that    the    wrong    man    had   been
imprisoned.     Id. at 141, 99 S.Ct. at 2693.                       The Supreme Court

rejected the plaintiff's argument that the sheriff's failure to

investigate     his   protests          of     misidentification       constituted      a

violation of due process, and explained:

     Given the requirements that arrest be made only on probable
     cause and that one detained be accorded a speedy trial, we do
     not think a sheriff executing an arrest warrant is required by
     the Constitution to investigate independently every claim of
     innocence, whether the claim is based on mistaken identity or
     a defense such as lack of requisite intent.... The ultimate
     determination of such claims of innocence is placed in the
     hands of the judge and the jury.

Id. at 145-46, 99 S.Ct. at 2695.                 Although the plaintiff in Baker

did not challenge the validity of his arrest or bring a claim under

the Fourth Amendment, the Supreme Court's decision in that case

does suggest that the two deputies in this case—who otherwise had

probable cause to arrest Pickens pursuant to facially valid arrest

warrants—did    not    have     a       duty   to   investigate       and   decide    the

potential     viability    of       a    defense,     such     as    the    statute    of

limitations, before arresting Pickens.

     Our own decision in Williams v. City of Albany, 936 F.2d 1256

(11th   Cir.1991),      provides          even      stronger    support      for      that

conclusion.     In Williams, a § 1983 action was brought against two

police officers based, in part, on the allegation that they had

presented their criminal investigation of the plaintiff to the

district    attorney      "with         the    knowledge     that    the    statute    of

limitations for the charge had expired."                Id. at 1260.        We rejected

the plaintiff's argument that these facts were sufficient to

withstand summary judgment:

     [The police officers] should not be held personally liable for
     presenting this evidence to the district attorney who has the
     authority to make the ultimate decision whether to seek an
     indictment.    Whether the statute of limitations bars a
     prosecution is a question of law.     The officers properly
     deferred legal decisions to the district attorney.

Id. at 1260 (emphasis added);        see also Kelly, 21 F.3d at 1552 (the

Constitution "imposes no obligation upon law enforcement officers

to second guess prosecutors....").

     The present case involves the execution of an arrest warrant

rather than the presentation of an investigation to the district

attorney.    However, we believe that          Williams makes clear that

police officers have no responsibility to determine the viability

of a statute of limitations defense when executing a valid arrest

warrant.    The existence of a statute of limitations bar is a legal

question that is appropriately evaluated by the district attorney

or by a court after a prosecution is begun, not by police officers

executing an arrest warrant.          Our conclusion to that effect is

reinforced    by   the   knowledge   that   whether   a   valid   statute   of

limitations defense exists is not a cut and dry matter.                     For

example, the statute of limitations for a criminal proceeding in

Georgia is tolled during the time the "accused is not usually and

publicly a resident within" Georgia.            Ga.Code Ann. § 17-3-2(1)

(Michie 1990);      see Danuel v. State, 262 Ga. 349, 418 S.E.2d 45

(1992).     An arresting officer is not in a position to make that

type of determination, nor is he required to know the law relating

to statute of limitations issues.           At the very least,     Baker and

Williams establish that the law was not clearly established when

this arrest was made in 1992 that an officer had a duty to

correctly decide any statute of limitations issues before executing

an arrest warrant.        That is sufficient to dispose of the issue
before us.      The district court should not have rejected the

qualified immunity defense on grounds relating to the statute of

limitations having run at the time of the arrest.

      In    addition   to   her   argument      regarding   the   statute   of

limitations, Pickens contends that notwithstanding the otherwise

valid warrants, the deputies lacked probable cause to arrest once

she told them that she had reported that the checks had been stolen

from her car and forged.     That contention is foreclosed byBaker v.

McCollan, 443 U.S. at 145-46, 99 S.Ct. at 2695, where the Court

held, "we do not think a sheriff executing an arrest warrant is

required by the Constitution to investigate independently every

claim of innocence."        Pickens' contention that her checks were

stolen was a claim of innocence, and at the very least, the law was

not clearly established in 1992 that the officers were required to

investigate and determine whether she was guilty or innocent before

they executed the arrest warrants.

     The    ultimate   success    of   Pickens'   statute   of    limitations

defense changes nothing about the issues we have resolved. It does

not mean that her arrest was not based upon arguable probable

cause, or even probable cause.         Nor does it mean that the arrest

was unconstitutional under clearly established law at the time, or

even now.     Cf. Baker, 443 U.S. at 145, 99 S.Ct. at 2695 ("The

Constitution does not guarantee that only the guilty will be

arrested.    If it did, § 1983 would provide a cause of action for

every defendant acquitted—indeed, for every suspect released.");

Von Stein, 904 F.2d at 578 n. 9 (" "Probable cause' defines a

radically     different     standard     than     "beyond    a     reasonable
doubt'....").

        Deputies Wilson and Hollowell request that we review the

district court's denial of Rockdale County's motion for summary

judgment, but we are foreclosed from doing so by Swint v. Chambers

County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60

(1995),   which   held   that    we    have   no   pendent   party    appellate

jurisdiction.     They also request that we review the district

court's denial of their own motion for summary judgment in their

official capacities.      The existence of pendent issue jurisdiction

is uncertain in the wake of Swint, --- U.S. at ---- - ----, 115

S.Ct.   at   1211-12,    but    even   assuming    we   have   that    kind   of

jurisdiction, we exercise our discretion not to employ it in this

case.
                               III. CONCLUSION

     The district court's denial of Wilson and Hollowell's motion

for summary judgment on qualified immunity grounds is REVERSED.