Nix v. Sweeney, 77-1340

Decision Date08 May 1978
Docket NumberNo. 77-1340,77-1340
Citation573 F.2d 998
PartiesDennis NIX, Appellant, v. Donald SWEENEY et al., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Richard L. Geissal, Jr., St. Louis, Mo., for appellant; Martha Moody, American Civil Liberties Union, St. Louis, Mo., on the brief.

David O. Danis of Whalen, O'Connor & Danis, St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and HUNTER, District Judge. *

GIBSON, Chief Judge.

Dennis Nix brought this action against the Village of Breckenridge Hills and certain of its officials for damages and injunctive relief arising out of his allegedly illegal arrest and the allegedly unlawful search, seizure, and photocopying of his property. The District Court granted a motion to dismiss the defendant Village of Breckenridge Hills because of the Missouri doctrine of sovereign immunity. The District Court also granted partial summary judgment for defendant Donald Sweeney, acting chief of police, because of its view that the arrest was made with probable cause. A jury determined the remaining issues against Nix. He appeals from the refusal of the District Court to grant his motion for a new trial. We reverse and remand.

On July 5, 1974, a shooting occurred at 9799 B St. Charles Rock Road, Breckenridge Hills, Missouri. Nix resided in the basement of that address. The main floor served as the office of the National Socialist White People's Party, St. Louis Unit, and as a bookstore, the White Power Information Center. Also residing at the address were Allen Balogh and David Farrah.

Witnesses to the shooting reported that Farrah and another individual had used Nix's green 1965 Chevrolet station wagon at the time of the shooting. Farrah and Balogh were arrested as being the two persons involved in the crime. The automobile was subsequently located at a parking lot with spent shell casings inside.

Nix left his place of employment when he learned of the shooting. He went to the Village Hall where he was arrested at 11:00 p. m., at the instance of Donald Sweeney, lieutenant and acting chief in the Police Department of the Village of Breckenridge Hills.

Nix was released at 6:00 a. m. on the following day without formal charges being filed. The complaint alleged in part:

From the time of Plaintiff's arrest and imprisonment until the time of Plaintiff's release the following morning, Defendants Donald Sweeney, Willard Jacobs and Gerald Sweeney did unlawfully break in and enter upon Plaintiff's said place of business and residence and did take therefrom all of Plaintiff's records, files, documents and other materials of varying natures, some of which were related to Plaintiff's business and personal affairs, and many of which were confidential records regarding Plaintiff's political organizing and political associations. The individual Defendants transported all said materials, documents, files and records to the police department of the Defendant Village of Breckenridge Hills, where all documentary materials were photocopied. Multiple copies of each document were made, in order that there would be sufficient copies of each document to convey said copies of each said document to various other law enforcement agencies. Copies of each said document were in fact given, on the orders of Defendants Donald Sweeney and Willard Jacobs, to various other law enforcement agencies. Several other copies of each document were retained by the Police Department of the Defendant Village of Breckenridge Hills.

Nix brought this action asserting the defendants 1 had unlawfully arrested and confined him and had unlawfully seized and copied his property. He claimed these acts deprived him of his rights under the first, fourth, fifth, ninth and fourteenth amendments to the Constitution of the United States. Jurisdiction was based on 42 U.S.C. §§ 1983 and 1985(3), and 28 U.S.C. §§ 1331 and 1343(1), (2), and (3). 2 Nix sought $5,000,000 in actual damages; a like amount in punitive damages; a mandatory injunction requiring the return to him of "all files, papers, documents, materials and copies thereof now in the possession of Defendants"; and other equitable relief. The District Court denied all relief. Nix appeals, primarily complaining of the dismissal of the Village because of the Missouri sovereign immunity doctrine and the granting of summary judgment on the issue of probable cause for the arrest. We consider those points separately.

Summary Judgment on the Arrest

Fed.R.Civ.P. 56 provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." In determining the propriety of such action, the Supreme Court has stated all evidence must be interpreted in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The language of the Supreme Court indicates the Fed.R.Civ.P. 56 summary judgment standard is quite strict. The moving party must be entitled to judgment as a matter of law, and has the burden of establishing the absence of a genuine issue.

The Eighth Circuit has articulated the following guidelines to be used in applying Rule 56: "Summary judgment is an extreme remedy which is not to be granted unless the movant has established his right to judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any possible circumstances." New England Mutual Life Insurance Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977); Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976); Percival v. General Motors Corp., 539 F.2d 1126, 1128 (8th Cir. 1976). The party must be entitled "to relief 'beyond all doubt,' without 'room for controversy.' " Williams v. Chick, 373 F.2d 330, 331 (8th Cir. 1967).

In order to prevail on summary judgment in a false arrest case, the evidence, including admitted facts and disputed facts viewed in the light most favorable to the plaintiff, in the knowledge of the police officer ordering the arrest, must conclusively establish probable cause. See Giordano v. Lee,434 F.2d 1227 (8th Cir. 1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971). Conflicting evidence on any issue would make that issue a jury question.

The Supreme Court discussed probable cause for arrest in Beck v. Ohio,379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause exists if

the facts and circumstances within (the enforcement officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

379 U.S. at 91, 85 S.Ct. at 225. Probable cause for arrest, then, includes two aspects: first, that a crime has been committed, and, second, that the accused more probably than not participated in it.

In Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976), a civil rights action involving a claim of false arrest, the Eighth Circuit held that each case involving the question of probable cause for arrest must be decided on its own facts. The court further noted: "Where the facts are in dispute or where they are subject to different inferences the question of probable cause is for the jury; however, where the facts are not disputed or are susceptible to only one reasonable inference, the question is one of law for the court." 531 F.2d at 861.

This position had been enunciated several years earlier in Giordano v. Lee, supra. Citing cases from the Third, Ninth and Tenth Circuits, the court stated: "Our research also leads us to conclude that in civil rights actions of this nature (false arrest), where a genuine issue of fact on the existence of probable cause for arrest is presented, the question should be submitted to the jury." 434 F.2d at 1230. The court further clarified the guidelines to be used in determining whether a jury question existed: "Where the supporting evidentiary matter of the moving party reveals 'unexpected gaps' or where the truth is not certain, the movant has not sustained the burden of demonstrating the absence of genuine issue of fact." 434 F.2d at 1231.

In holding the issue of probable cause was a jury question, Giordano discussed a reasonableness standard: "We think that the evidence adduced * * * coupled with the inferences therefrom, was such that reasonable minds could differ as to whether or not the officers acted in good faith and with probable cause." 434 F.2d at 1231-32.

In applying the two-pronged Beck standard to the current case, it is clear that the officer ordering Nix's arrest knew a crime had been committed. However, it is not clear that the officer was prudent in his belief that Nix had committed it.

According to Donald Sweeney's affidavit, he knew that two shootings had taken place on July 5, 1974. Witnesses stated two men had participated in the first shooting and identified one of those men. Witnesses stated further that a car, known to be owned by the plaintiff, had been seen when the first shooting occurred. Two men were arrested but the car was not found in the area. The car was later located at a parking lot "not at police station" with spent casings inside. The plates on the car in question were issued to Dennis Nix. Dennis Nix was at the police station. Knowing all this information, defendant Donald Sweeney ordered Nix's arrest.

In addition to the above information, consistent with Fed.R.Civ.P. 56, in granting summary judgment in the present case the trial court must have considered the affidavits of Nix himself and of Les McCullum, the officer who arrested Nix. While Nix's affidavit is of limited value, since the...

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