Boscarino v. Nelson, 71-C-531.

• Decision Date: 05 June 1974
• Docket Number: No. 71-C-531.,71-C-531.
• Citation: 377 F. Supp. 1308
• Parties: Louis Peter BOSCARINO, Plaintiff, v. Carl NELSON, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

377 F. Supp. 1308

Louis Peter BOSCARINO, Plaintiff, v. Carl NELSON, Defendant.

No. 71-C-531.

United States District Court, E. D. Wisconsin.

June 5, 1974.

Hayes, Peck & Gerlach by Gary A. Gerlach, Milwaukee, Wis., for plaintiff.

James B. Brennan City Atty. by Rudolph Randa, Asst. City Atty., Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiff brought this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 to recover damages incurred as the result of an allegedly unlawful arrest. Following a trial to the court, an oral decision was rendered in favor of the defendant. The plaintiff has now moved for reconsideration of that decision.

While there was some conflict between the testimony of the plaintiff and the defendant, there was substantial agreement at to the principal facts. As to all others, I fully accept the defendant's version as correct. The issue before the court is whether the proper legal standard was applied to those facts, and I conclude that it was not.

The defendant, a police officer, was off duty and traveling in his car during daylight hours on a south side Milwaukee street when he observed the defendant walking on that street. Officer Nelson knew the plaintiff, was aware of the fact that he lived in another area of town, at least recently, and was familiar with his reputation as a burglar. Consequently, the defendant decided to watch the plaintiff. What he saw was the plaintiff approach the front door of a relatively new apartment building, leave, and then proceed to the rear of an older apartment building in the next block on the opposite side of the street.

Officer Nelson testified that the plaintiff's past burglaries were largely concentrated in older apartment buildings. He suspected that the plaintiff had attempted to gain access to the newer building for larcenous purposes, had been unable to do so, and had reverted to an older, and presumably more familiar type of building for the same purpose. While the plaintiff was behind the building, the officer sent his wife home to get his service revolver and positioned himself in such a manner that he would be able to see the plaintiff emerge from the rear of the building if he should do so. The defendant made no effort to see what was actually occurring in back of the structure. Although he could see that an alley ran behind the building, he did not attempt to determine if the plaintiff had simply been using the alley without regard to the apartment building.

After approximately fifteen minutes, the plaintiff emerged from the rear of the building, and the defendant immediately arrested him for burglary. The plaintiff was not asked to explain his presence or conduct and no investigation of the scene was made prior to the arrest. A search of the plaintiff's person was conducted incident to the arrest, and a small paring knife, which testimony proved to be a "case knife", was discovered.

The defendant testified that he did not ask the plaintiff to explain his conduct prior to the arrest because the defendant believed, based on prior contact with the plaintiff, that the reply would be a prevarication. He also stated that he immediately searched the plaintiff for the same reason that he sent his wife for his gun: he believed that the plaintiff might become violent in view of his probationary status and potentially lengthy commitment upon revocation.

Mr. Boscarino was subsequently convicted of carrying a concealed weapon, the knife referred to above. His county court conviction was appealed to the circuit court; it was reversed, and the charge was dismissed. The circuit court's action was based upon a determination that there had been no probable cause for the arrest and, therefor, that the search was illegal.

In an oral opinion at the conclusion of the trial in this court, I agreed that the arrest was unlawful in the constitutional sense in that it was without a warrant and probable cause was lacking. I also found, however, that the police officer had acted in good faith and with a reasonably held belief that he had probable cause to arrest the plaintiff. It was my view, at the time of such oral opinion, that judges familiar with the case law concerning probable cause determinations could well differ on whether the arrest here was constitutional as the county and circuit court judges apparently did. Therefore, the policeman's good faith and reasonably held belief in the lawfulness of his act were determined in my oral findings to be a sufficient defense to the plaintiff's action. Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2nd Cir. 1972), was relied on for such ruling.

"Therefore, to prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection." 456 F.2d at 1348.

See also Williams v. Gould, 486 F.2d 547 (9th Cir. 1973).

In concluding that the Bivens rationale (which is clearly the law in the second circuit) is also applicable in this circuit, I considered several comments in recent seventh circuit cases. While those cases are not directly on point, they do tend to suggest an adherence to the philosophy of Bivens: a strong respect for the subjective good faith belief of the official whose conduct is challenged in a § 1983 action.

Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), stands for the proposition that "damages are inappropriate where defendant officials have acted out of good faith and upon reasonable grounds." 435 F.2d at 1058. In United States ex rel. Miller v. Twomey, 479 F. 2d 701 (7th Cir. 1973), the court stated that "the defense of good faith is available to prison officials, as it is to police officers." 479 F.2d at 719 n. 38. This sentiment was repeated in Haines v. Kerner, 492 F.2d 937 (7th Cir. 1974) where the court held that "good faith is a defense to state officials sued for damages under 42 U.S.C. § 1983. . . ." 492 F.2d at 941.

The plaintiff makes the argument however, that despite these comments, the case law of this circuit requires not only good faith and reasonableness but also objective probable cause in the narrow case of a policeman making an arrest without a warrant. He contends that later cases have not dealt directly with the issues decided in Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968), and, therefore, that Joseph is binding in its literal sense. Joseph provides:

"Where a police officer makes an arrest which is unlawful under the federal constitution because made without a warrant and without probable cause to believe that the person arrested had committed or was committing an offense, sec. 1983 imposes on the officer a liability which is recoverable in federal court. Additional circumstances coloring the officer's action as flagrant or malevolent are not required." 402 F.2d at 370.

The defendant counters that the probable cause referred to in Joseph is a subjective test; it is the equivalent, he urges, of requiring a reasonable belief that objective probable cause in the constitutional sense exists. Alternatively, it is argued that the court of appeals for the seventh circuit has effectively, albeit indirectly, liberalized the requirements of Joseph in Briscoe, Miller and Haines.

The defendant's arguments are attractive and acceptance of them following a chance to view the demeanor of the parties at trial would be comfortable. Having examined the foundation for Joseph as well as its history, however, I am unable to say that the court meant anything other than precisely what it said, and I am equally at a loss to point out any subsequent modification in cases on point.

That Joseph referred to the objective probable cause requirement as an essential element of the available defense is evident from its reliance on Anderson v. Haas, 341 F.2d 497 (3d Cir. 1965). In Anderson, the finding of probable cause was based on a determination of the reasonable beliefs of prudent men under the circumstances. It was clearly an objective and not a subjective test. Indeed, the court in Anderson quoted from Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142 (1964):

"If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses,

...