Bodzin v. City of Dallas

• Citation: 768 F.2d 722
• Decision Date: 19 August 1985
• Docket Number: No. 84-1695,84-1695
• Parties: Frank BODZIN, Plaintiff-Appellant, v. CITY OF DALLAS, Alonzo Burgin, Steven Padgett, and Skaggs Companies, Inc., Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 722

768 F.2d 722

Frank BODZIN, Plaintiff-Appellant, v. CITY OF DALLAS, Alonzo Burgin, Steven Padgett, and Skaggs Companies, Inc., Defendants-Appellees.

No. 84-1695.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1985.

Douglas R. Larson, Dallas, Tex., for plaintiff-appellant.

Joseph G. Werner, 1st Asst. City Atty., Sam A. Lindsay, Rhonda F. Hunter, Asst. City Attys., Dallas, Tex., for City of Dallas, A. Burgin & S. Padgett.

Strasburger & Price, W. Neil Rambin, Michael Jung, Dallas, Tex., for Skaggs Companies/American Stores, Inc.

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

Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Frank Bodzin appeals the district court's dismissal by directed verdict, judgment upon verdict, and judgment notwithstanding verdict of his claims against two Dallas police officers, the City of Dallas, and Skaggs Companies, Inc. arising from an assertedly illegal arrest for trespass. Persuaded that even under Bodzin's version of the evidence, the officers had probable cause to arrest, we affirm.

I

Because the court entered judgment notwithstanding the jury's verdict for Bodzin on his 42 U.S.C. Sec. 1983 claim of unconstitutional arrest against one officer, we review and here describe the evidence "in the light and with all reasonable inferences most favorable to" Bodzin. Eyre v. McDonough Power Equipment, Inc., 755 F.2d 416, 419 (5th Cir.1985); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).

Bodzin, in an effort to gather signatures on petitions urging the Dallas City Council to grant a special property tax rate for homeowners, set up a chair, card table and signs on a sidewalk and grassy area adjoining the parking lot of a shopping center on Mockingbird Lane in Dallas. He did not enter the parking lot, but rather remained at his table and asked approaching passersby if they would sign the petition.

After about two hours, the manager of the Skaggs Alpha Beta grocery store at the shopping center demanded that Bodzin leave. Bodzin refused, stating that he was on public property and was exercising his constitutional rights. The manager called the police; Alonzo Burgin was the first officer to arrive. The store manager told Burgin that Bodzin was on Skaggs Companies property and had refused to leave. Burgin told Bodzin that the manager wanted him to leave but he refused. Officer Steven Padgett then arrived and discussed the situation with the other participants. When the officers told the store manager that Bodzin had refused to leave, the manager asked them to arrest Bodzin. The officers told Bodzin that he was under arrest for criminal trespass, handcuffed him, and took him to the police station, where he was booked for attempted criminal trespass, a class C misdemeanor. The charges were later dropped.

Bodzin sued the two officers, the City of Dallas, and Skaggs Companies, Inc., asserting Sec. 1983 claims for unconstitutional arrest, use of excessive force, infringement of First Amendment rights, and conspiracy to violate his constitutional rights, as well as pendent state-law claims for false arrest, malicious prosecution, and libel and slander. The district court granted a directed verdict for the City of Dallas on all counts, for Skaggs on all claims except common-law false arrest, and for the officers on all claims except unconstitutional arrest, use of excessive force, and common-law false arrest.

At the jury trial, Bodzin, the manager, and the officers each testified. The city surveyor testified that according to a city plat, Bodzin had been partly on public and partly on private property, but that a survey performed during the trial showed that the plat was in error and that Bodzin had been located entirely on the public right-of-way. Finally, Bodzin called a retired Dallas police officer, William Ira Trantham, the elderly father of the law partner of Bodzin's counsel. Trantham testified that in a non-emergency situation where a decision to arrest a suspect would depend on whether the suspect was on public or private property, a reasonably prudent police officer would do nothing until checking with supervisors or county records.

The jury, answering special interrogatories, found that Burgin, but not Padgett, had violated Bodzin's right not to be deprived of liberty without due process of law by reason of the arrest. The jury found that Burgin had not acted in good faith, and awarded Bodzin $10,000 on this claim. The jury further found that Burgin and Skaggs had falsely arrested or imprisoned Bodzin under state law, but awarded no damages on these claims. All other claims were resolved adversely to Bodzin. The court entered judgment on the verdict for Padgett and Skaggs, and, without opinion, granted Burgin's motion for judgment notwithstanding the verdict. On appeal, in addition to challenging the district court's j.n.o.v. grant, Bodzin contests the court's failure to award damages against Skaggs, its submission of the good-faith issue to the jury, and its refusal to submit jury issues on municipal liability, civil conspiracy, malicious prosecution, and infringement of First Amendment rights. We are persuaded that the controlling issue of this appeal is the legality of the arrest and we turn directly to that issue.

II

A warrantless arrest violates a suspect's Fourth and Fourteenth Amendment rights if the arresting officer lacks probable cause to believe that the suspect has committed a crime. Trejo v. Perez, 693 F.2d 482, 488 & n. 10 (5th Cir.1982). Under Texas law, for a warrantless misdemeanor arrest to be valid, the officer must have probable cause to believe that the suspect has committed a crime in his presence. Carlock v. State, 609 S.W.2d 787, 790 (Tex.Crim.App.1980); Tex.Code Crim.Proc. art. 14.01(b) (Vernon 1977).

The Texas criminal trespass statute reads in relevant part:

A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

Tex.Penal Code Sec. 30.05(a) (Vernon Supp.1985). When the officers arrived on the scene, the manager told them that Bodzin was on Skaggs property, had been asked to leave, and had not done so. The officers observed Bodzin on a site that the manager said was private property, and heard Bodzin refuse to leave after being told that he was not welcome. Burgin and Padgett then had probable cause to believe that Bodzin had committed all the elements of criminal trespass in their presence. Bodzin's argument that the manager had to formally tell Bodzin to leave in the presence of the officers is without merit. The officers knew from what they had been told at the scene that Bodzin was remaining at his table despite the manager's opposition. They saw Bodzin there. No more was required.

Bodzin contests the conclusion that under the undisputed facts the arrest was supported by probable cause. Bodzin first says that as a matter of law, the officers could not have reasonably believed him to be trespassing without first ascertaining the location of the property line from official sources, and thus did not have probable cause to believe that he was on private property. He essentially proposes this search as an additional element of probable cause in such property cases. We decline to engraft such a universal insistence upon the essentially ad hoc inquiry into probable cause. In Saldana v. Garza, 684 F.2d 1159 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983), a Sec. 1983 false-arrest case in which the plaintiff had been arrested for public intoxication despite his contention that he was standing in his own driveway, we affirmed a judgment for the defendant officers,...