Claiborne v. Cahalen

• Decision Date: 28 May 1986
• Docket Number: Civ. No. Y-85-2979.
• Citation: 636 F. Supp. 1271
• Parties: Horace L. CLAIBORNE, Sr., et al. v. Herbert CAHALEN, et al.
• Court: U.S. District Court — District of Maryland

636 F. Supp. 1271

Horace L. CLAIBORNE, Sr., et al. v. Herbert CAHALEN, et al.

Civ. No. Y-85-2979.

United States District Court, D. Maryland.

May 28, 1986.

COPYRIGHT MATERIAL OMITTED

Alfonso N. Pearson, Marlow Heights, Md., for plaintiffs.

Paul A. McGuckian, Co. Atty., Bruce P. Sherman, Sr. Asst. Co. Atty., and Richard D. Caplan, Asst. Co. Atty., Rockville, Md., for defendants.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This lawsuit was originally brought by Horace L. Claiborne, Senior, and Ethel Claiborne, as the parents and next friends of their son, Horace L. Claiborne, Junior ("Claiborne"). The Claibornes alleged several constitutional causes of action under 42 U.S.C. § 1983 and a host of state diversity claims arising from the allegedly unlawful arrest and prosecution of their son by officers of the Montgomery County, Maryland, Police Department. The complaint named as defendants, in their individual and official capacities, three Montgomery County police officers; Bernard Crooke, Chief of the Montgomery County Police; and Charles W. Gilchrist, Montgomery County Executive, as well as the Montgomery County Police Department and the State of Maryland.

By Order dated February 24, 1986, the Court granted plaintiffs leave to substitute Claiborne as the real party in interest, and leave to amend the complaint to allege the specific customs or policies of the Montgomery County Police Department that led to his arrest. Plaintiffs were also given leave to amend the complaint to allege personal involvement in those customs or policies on the parts of supervisory defendants Crooke and Gilchrist. The Court granted partial summary judgment for defendants Crooke and Gilchrist as to the Maryland tort claims brought against them in their individual capacities, and dismissed plaintiffs' Eighth Amendment and intentional infliction of emotional distress claims in their entirety.

On March 3, the defendants filed a consolidated motion for summary judgment as to the claims against the three policemen, and as to all other claims outside the permitted amendments. On March 19, Claiborne filed a second amended complaint,¹ and on April 1, he filed an opposition to the March 3 summary judgment motion. The supporting materials provided with the defendants' motion established that probable cause existed for Claiborne's arrest. Plaintiff failed to provide supporting materials in his response to show that a genuine issue of material fact remains as to whether plaintiff's arrest was lawful. The Court finds that all of plaintiff's constitutional claims fall because plaintiff's arrest was lawful. Plaintiff's diversity claims under Maryland state law also fall as a result. THE PROBABLE CAUSE DETERMINATION

Federal Rule of Civil Procedure 56 provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In their March 3 motion for summary judgment, the defendants attached as exhibits the sworn interrogatories of police officer defendants Herbert C. Cahalen, Richard Klocko, and Harry Bailey; the complete deposition testimony of plaintiff; and a sworn supplemental affidavit by officer Cahalen verifying the authenticity of a copy of his original police report. Plaintiff did not provide any supporting materials with his opposition to the March 3 summary judgment motion. The Court has reviewed the material submitted, resolving all inferences from that material against the defendants, and finds that probable cause existed for the arrest of the plaintiff.

Cahalen's original police report and his sworn answers to the interrogatories propounded by plaintiff are consistent. Cahalen's account of the arrest, detailed in his answer to plaintiff's interrogatory number ten, reads as follows:

On May 16, 1985, at approximately 0410 hours, I was on routine patrol in Silver Spring, Maryland, when I observed two individuals, later identified as Horace Claiborne and Tracey Keith standing to the rear of the 7-11 store located at 7901 Eastern Avenue. Both subjects were engaged in conversation and were looking around in a nervous manner. After approximately one minute, Keith walked to the side of the 7-11 out of my view, with what appeared to be what was later identified as a gas mask, sitting on the top of his head. Claiborne continued to look around and upon seeing me, walked away from the 7-11. After seeing me, Claiborne was observed looking back toward the 7-11 as if he was speaking to Keith, then started walking away from the store towards Georgia Avenue. I approached Claiborne in the parking lot while in my vehicle and observed Keith in the walkway along the side of the 7-11. I approached Claiborne and inquired as to what he was doing and where he was from. Claiborne replied that he was waiting for his friend who had gone to the 7-11 to buy food and that he was from D.C. During the conversation, I observed that Claiborne had a bulge under his black leather jacket on the right side. I advised Claiborne to move on and then went to check the 7-11 where the other individual was last seen heading towards.

I drove to the front of the 7-11 where Keith was seen watching me from around the front outside corner of the 7-11. He was not seen inside the store during the two minutes that I was observing it before returning to the rear of the store. Only the clerk was in the store. As I drove around to the rear, Keith was observed slowly walking from the back side of the 7-11 store. He then walked more quickly when he saw me. I observed him throw what was later identified as a black gas mask to the ground under a car. Keith continued to walk across the parking lot where he met Claiborne who was waiting.

I approached both subjects and advised them to place their hands on the front of the police cruiser. Keith was excited and appeared to be attempting to get into a position to run. He was also very vocal.

Back-up officers arrived at this point and a pat down for weapons was conducted. I patted down Claiborne and Klocko patted down Keith. Officer Klocko found an open knife in the jacket pocket of Keith. Claiborne was found to have a gas mask bag under his jacket causing the jacket to bulge. I also recovered a gas mask from the street from behind the 7-11 where Keith had thrown it. Both the mask and bag were U.S. military issue.

Both subjects were placed under arrest for conspiracy to rob the 7-11 and rogue and vagabond.

Cahalen's supplemental affidavit attests that it is "common knowledge in the Montgomery County Police Department that the area of the 7-11 located at 7901 Eastern Avenue is a high crime area," and that the gas mask he recovered from Keith "is constructed in such a manner that when the gas mask is worn over the head and on the face, it shields the entire face making identification of the wearer extremely difficult, if not impossible."

Claiborne's deposition does present innocent explanations for his presence at the 7-11 at four in the morning, and how he and Keith came into possession of the gas mask and bag, but it does not contradict Officer Cahalen's account of the events that led up to the arrest in any material way. Claiborne's deposition testimony confirmed:

— that Claiborne and Keith were together in the back of the 7-11 parking lot at approximately four a.m. (deposition at p. 44);

— that Keith walked toward the store while Claiborne remained behind (p. 44-45);

— that Keith had the mask with him as he approached the store (p. 45);

— that officer Cahalen approached Claiborne and told him to move on (p. 49-50);

— that Claiborne had the bag to the gas mask under his jacket (p. 53);

— that Claiborne walked towards the District of Columbia, but lingered waiting for Keith (pp. 50-51);

— that officer Cahalen then went around to the front of the 7-11 (p. 51);

— that Keith came around the side of the store, saw officer Cahalen, and threw the mask down beside a car because he was frightened (p. 54);

— that the police officers found a knife in Keith's possession when he was patted down (p. 73).

Claiborne's testimony did contradict Cahalen's in a few unimportant particulars. He testified that Keith was carrying the gas mask when he walked toward the front of the 7-11, instead of wearing it on top of his head. And Claiborne testified that he did not start walking away from the 7-11 until after officer Cahalen approached him. Resolving all inferences in Claiborne's favor, the Court will accept his version of the events where it contradicts the account of officer Cahalen.

At one point during his deposition, Claiborne also appeared to contradict Cahalen's account in a potentially important detail. Under questioning from the defendants' attorney, Claiborne testified that Cahalen told Claiborne and Keith they were under arrest before the pat down searches occurred. Deposition at pp. 55-56. That testimony was less then clear, however. Later, under questioning from his own attorney, Claiborne clearly testified that officer Cahalen searched him before placing him under arrest. Deposition at p. 77.

In light of Claiborne's unequivocal testimony later in the deposition, his counsel's acceptance of that testimony without asking further questions about it, and counsel's failure to address the issue in his opposition to the motion for summary judgment, the Court is not sure that Claiborne is entitled to an inference that a genuine dispute of fact exists on this point. But even assuming arguendo that plaintiff is entitled to an inference that the pat down searches occurred after arrest, the Court finds that probable cause existed.

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