29 F.3d 1012 (5th Cir. 1994), 93-1488, Mangieri v. Clifton

• Date: 25 August 1994
• Docket Number: 93-1488.
• Citation: 29 F.3d 1012
• Parties: Robert E. MANGIERI, Plaintiff-Appellee, v. W. CLIFTON, et al., Defendants, W. Clifton and Gordon Hager, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

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29 F.3d 1012 (5th Cir. 1994)

Robert E. MANGIERI, Plaintiff-Appellee,

v.

W. CLIFTON, et al., Defendants,

W. Clifton and Gordon Hager, Defendants-Appellants.

No. 93-1488.

United States Court of Appeals, Fifth Circuit

August 25, 1994

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[Copyrighted Material Omitted]

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Edwin P. Voss, Jr., Asst. City Atty., Dallas, TX, for appellants.

T. Wesley Holmes and Donovan Campbell, Jr., Rader, Campbell & Fisher, Dallas, TX, for appellee.

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

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 subsequently dropped.

Mangieri filed the instant 42 U.S.C. Sec. 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

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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 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, 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 Supreme Court's decision in Hunter v.

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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

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 made, the officers had...