Ramirez v. City of Wichita
| Decision Date | 29 November 1993 |
| Citation | 78 F.3d 597 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before PORFILIO, Circuit Judge; HOLLOWAY, Senior Circuit Judge; and HOLMES, District Judge. 2
Roberto A. Ramirez, his wife, and his two minor children brought this civil rights action pursuant to 42 U.S.C.1981, 1983, 1985, and 1986 and Kansas state law against the City of Wichita, the Wichita Police Department (WPD), and ten Wichita police officers. The plaintiffs contended their civil rights were violated when Wichita police twice mistakenly arrested Mr. Ramirez after confusing him with a person wanted in Texas on a murder warrant. The district court granted summary judgment for all the defendants. We affirm on all issues except the district court's conclusion the individual officers were entitled to qualified immunity regarding the second arrest.
The confusion between plaintiff, Roberto Ramirez, and the Texas fugitive, Pedro Ramirez, arose when plaintiff pawned a firearm with a Wichita pawnbroker. As required by the City's ordinance, the broker forwarded information on the pawn, including Mr. Ramirez' physical description and date of birth, to the Wichita police, who, in turn, attempted to match that information to data on the National Crime Information Center computer.
The search resulted in a match between Roberto and Pedro Ramirez. Significantly, their birth dates, weight, and physical description were identical. Only their given names and height, which indicated a difference of one inch, did not coincide exactly. The officer who discovered the match forwarded the information for investigation.
On August 26, 1991, during the third shift, Lt. Darrell Haynes sent two officers to the Ramirez home to determine whether Mr. Ramirez was the wanted fugitive. Arriving at approximately 3:00 a.m., the officers learned Mr. Ramirez had previously been questioned about the same murder several years before and knew about the confusion. After comparing a teletype photograph of Pedro Ramirez with Mr. Ramirez' present appearance and old photographs of him, one of the officers requested assistance from Lt. Haynes.
When Lt. Haynes arrived at the scene, he unsuccessfully attempted to obtain additional information about Pedro Ramirez from Texas authorities. Unable to confirm Mr. Ramirez was the fugitive, Lt. Haynes ordered his release. Prior to leaving, Lt. Haynes gave Mr. Ramirez a document prepared by Haynes stating Mr. Ramirez had been "checked out about the homicide case." Lt. Haynes and the two officers then left at approximately 5:00 a.m.
Two hours later, Lt. Lee B. Harp arrived for work on the first shift and on his desk found the information concerning Roberto Ramirez and the outstanding warrant for Pedro Ramirez. He passed the information on to the first shift officers under his command.
Soon thereafter, five first shift officers went to Mr. Ramirez' home, arriving at 7:43 a.m. According to Mr. Ramirez, when he came to the door, two officers handcuffed him and took him outside. The other officers then conducted a search of the Ramirez home, but they and Mr. Ramirez disagree over the scope of that search. That disagreement remains unresolved.
Mr. Ramirez informed the officers about the encounter he had less than three hours before, prompting the officers at the scene to contact Lt. Harp, who informed them the Dallas County Sheriff's Office had provided fingerprints of Pedro Ramirez to the WPD. With Mr. Ramirez' consent, his fingerprints were taken and compared to those of the Texas suspect. The comparison established plaintiff was not Pedro Ramirez, and the officers released him. This suit ensued.
Initially, Mr. Ramirez argues two theories why the district court erred in granting summary judgment on qualified immunity grounds to the individual police officers. He contends police violated a clearly established constitutional right, and he asserts genuine issues of material fact remain in controversy precluding summary judgment. We conclude the district court properly granted the individual WPD officers qualified immunity regarding the first arrest, but agree with Mr. Ramirez factual issues remain in controversy precluding summary judgment in connection with the second arrest.
We review both the district court's qualified immunity decision and its conclusion no genuine issues of material fact existed precluding summary judgment de novo. Wilson v. Meeks, 52 F.3d 1547, 1551 (10th Cir.1995); Cummins v. Campbell, 44 F.3d 847, 850 (10th Cir.1994). When a defendant raises the affirmative defense of qualified immunity, the plaintiff assumes the burden of showing the defendant's actions violated either a constitutional or statutory right, and the right alleged to have been violated was clearly established at the time of the defendant's conduct. Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir.1995). If a plaintiff satisfies this two-part test, the burden shifts to the defendant to show there are no genuine issues of material fact at issue precluding summary judgment. Id. at 1535. The traditional summary judgment standard applies. The evidence is considered in the light most favorable to the non-moving party, Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990), including drawing all reasonable inferences from the available underlying facts. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Summary judgment is appropriate only if there is no genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986).
The Fourth Amendment prohibits the police from arresting someone without either a warrant or probable cause. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995) (citing Tennessee v. Garner, 471 U.S. 1, 6-8 (1985)). 3 "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." Id. (quoting Jones v. City & County of Denver, Colo., 854 F.2d 1206, 1210 (10th Cir.1988)). "Officers may rely on information furnished by other law enforcement officials to establish reasonable suspicion, and to develop probable cause for an arrest." Albright, 51 F.3d at 1536 (citations omitted).
The description of Pedro Ramirez contained in the NCIC printout and the description of Mr. Ramirez on the pawnshop form are strikingly similar. Both share surnames, hair color, eye color, weight, age, and most particularly identical dates of birth. The only differences are relatively insignificant. Under these circumstances, we have no difficulty concluding the police possessed probable cause to arrest Mr. Ramirez, and therefore did not violate his constitutional rights during the first episode.
In an attempt to avoid this conclusion, Mr. Ramirez challenges the reliability of the NCIC computer record on hearsay grounds. Obviously, because the contents of the computer record were not offered to establish the truth of the statements it contained, the record is not inadmissible hearsay by definition. Fed.R.Evid. 801(c).
Mr. Ramirez also argues the police cannot rely on an NCIC printout to establish probable cause. Again, we disagree. We have not explicitly answered this precise inquiry, although in dicta in United States v. Hines, 564 F.2d 925 (10th Cir.1977), cert. denied, 98 S.Ct. 748 (1978), we commented, "information received from the NCIC computer bank has been routinely accepted in establishing probable cause for a valid arrest." Id. at 927. However, other circuits who have addressed this issue have squarely held an NCIC computer printout is sufficient to establish probable cause for an arrest. See, e.g., Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 280 (5th Cir.1992); Lowrance v. Pflueger, 878 F.2d 1014, 1019-20 (7th Cir.1989); United States v. Towne, 870 F.2d 880, 884-85 (2d Cir.), cert. denied, 490 U.S. 1101 (1989); Capone v. Marinelli, 868 F.2d 102, 105-06 (3d Cir.1989). We conclude the NCIC information was sufficient to provide probable cause to arrest Mr. Ramirez. We hold the individual police officers were entitled to qualified immunity relating to Mr. Ramirez' first arrest.
In contrast, the factual predicate concerning the second arrest remains unclear, thus precluding summary judgment. The validity of the second arrest hinges on the extent of the knowledge of Lt. Harp and the officers of the first shift concerning the third shift's prior arrest and release of Mr. Ramirez. If the first shift knew of the third shift's prior activities, the similarities between Mr. Ramirez and the suspect are insufficient to establish probable cause a second time without any additional information suggesting Mr. Ramirez and Pedro Ramirez were the same individual. However, if the first shift independently acted on the NCIC and pawnshop information without any knowledge of the third shift's activities, qualified immunity would be appropriate.
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