Abouzari v. Foster, 88CA1336

• Decision Date: 19 July 1990
• Docket Number: No. 88CA1336,88CA1336
• Citation: 795 P.2d 1386
• Parties: Diane Gay ABOUZARI, Plaintiff-Appellee, v. Robert FOSTER, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1386

795 P.2d 1386

Diane Gay ABOUZARI, Plaintiff-Appellee, v. Robert FOSTER, Defendant-Appellant.

No. 88CA1336.

Colorado Court of Appeals,

Div. IV.

July 19, 1990.

Gary M. Jackson, Lucy Hojo, Denver, for plaintiff-appellee.

Hall & Evans, William F. Eggert, Denver, for defendant-appellant.

Opinion by Judge HUME.

Defendant, Robert Foster, a Fort Collins, Colorado, police detective, appeals a civil rights damage judgment entered pursuant to a jury verdict in favor of plaintiff, Diane Gay Abouzari. We reverse the judgment and order dismissal of plaintiff's complaint.

On October 29, 1984, a woman representing herself to be Diane G. Abouzari and using a Colorado driver's license issued in that name rented certain welding equipment from a Fort Collins rental shop. One employee for the shop examined the license and recorded its number on the rental contract. Another employee helped the woman load the rental equipment into her van, but did not see the driver's license.

When the rental equipment was not returned within five days after the expiration of the contract period, the rental shop made a theft report to the Fort Collins Police Department. Defendant went to the shop, obtained a copy of the rental contract, and took a written report of the incident from one of the two shop employees who had participated in the rental transaction with the woman.

Using the driver's license number from the contract, defendant obtained from the Colorado Department of Revenue a photograph of plaintiff to whom the license had been issued by that department. He placed that photograph together with five pictures of other women in an array that he then presented to the two employees who had participated in the rental transaction.

The employee who had not seen the license tendered during the rental transaction, after initially asking if defendant had a clearer photograph, chose plaintiff's photograph from the array and positively identified it as that of the woman who had rented the welding equipment. The employee who had examined the license previously, although he remarked that plaintiff's photograph resembled that of the perpetrator, was unable to make a positive identification from the array.

On the basis of this investigation, defendant applied, through the district attorney's office, for a warrant authorizing plaintiff's arrest. Defendant's probable cause affidavit incorporated the employee's written incident report, the photographic array compiled by defendant, and defendant's report describing the compilation, use, and results of the photographic identification process including defendant's characterization of one witness' identification as positive and the other as negative.

A district judge issued an arrest warrant on November 28, 1984, and plaintiff was arrested at her home in Westminster, Colorado, approximately two weeks later. Plaintiff was booked, transported, and detained by the Westminster police and by Larimer County Sheriff's officers for a total of about six hours before being released on bond.

When plaintiff was arrested, she attempted to explain to the Westminster police that her purse and her driver's license had been lost or stolen, and that she had previously reported the loss to various police authorities. The arresting officers contacted defendant and advised him of these explanations, but nevertheless proceeded with the arrest after defendant told them to do so.

The theft charge was dismissed after a preliminary hearing show-up revealed that no prosecution witness could identify plaintiff as the perpetrator of the theft. Following that dismissal, plaintiff commenced a civil action seeking monetary damages against defendant.

Plaintiff's civil complaint alleged that defendant, acting under color of state law, had deprived her of the right to liberty without probable cause, as guaranteed by the federal constitution, in violation of 42 U.S.C. § 1983 (1982). Plaintiff's complaint also claimed damages under state law for false arrest, false imprisonment, and outrageous conduct.

Defendant's answer denied that his conduct was outrageous or that the arrest was not based upon probable cause. In addition, he asserted the affirmative defense of qualified immunity.

At trial, plaintiff withdrew her state claims based upon false arrest and false imprisonment. The outrageous conduct claim was also dismissed pursuant to defendant's motion after the jury was unable to return a verdict on that claim. The court denied defendant's motions for dismissal, summary judgment, and for directed verdict, and submitted the issues of probable cause and qualified immunity to the jury, resulting in a verdict for the plaintiff on the § 1983 claim.

Thereafter, the court denied defendant's motion for judgment notwithstanding the verdict and entered a judgment for damages as determined by the verdict and for attorney fees as determined by the court. Defendant appeals from that judgment.

Defendant contends that the trial court erred as a matter of law in denying his motions to dismiss, for summary judgment, and for directed verdict. More specifically, defendant contends that the court erred in submitting the qualified immunity defense issue to the jury, rather than determining that issue as a matter of law. We agree.

In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the United States Supreme Court re-confirmed that police officers are to be accorded qualified immunity from § 1983 damage suits brought by citizens and that the test to be applied is the objective reasonableness standard adopted in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Under that test, an officer cannot avoid liability by showing only that he believed facts alleged in an affidavit for an arrest warrant to be true. Nor is he entitled to rely solely upon a magistrate's judgment in issuing the warrant. Malley v. Briggs, supra. The mere issuance of a warrant is not controlling as to whether probable cause existed to support that issuance. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

Conversely, a police officer is not liable for false arrest simply because the innocence of the suspect is later established or because the suspect is ultimately acquitted or the criminal charges are dismissed.

"A policeman's lot is not so unhappy that he must choose between being charged with a dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does."

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

Under the Harlow standard adopted in Malley v. Briggs, supra, officers will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized. Only if the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the mantle of immunity be lost.

In order to determine whether a police officer's conduct is violative of clearly established laws under the objective reasonableness test, a specific examination of the legal principle alleged to be violated is required. It is not sufficient to say that the right to be...