English-Clark v. City of Tucson

• Decision Date: 25 June 1984
• Docket Number: CA-CIV,ENGLISH-CLAR,No. 2,P,2
• Citation: 142 Ariz. 522,690 P.2d 1235
• Parties: Barbaralaintiff/Appellant, v. CITY OF TUCSON, a municipal corporation and Ernest E. Abbott, Defendants/Appellees. 5056.
• Court: Arizona Court of Appeals

Page 1235

690 P.2d 1235

142 Ariz. 522

Barbara ENGLISH-CLARK, Plaintiff/Appellant, v. CITY OF TUCSON, a municipal corporation and Ernest E. Abbott, Defendants/Appellees.

No. 2 CA-CIV 5056.

Court of Appeals of Arizona Division 2.

June 25, 1984.

Reconsideration Denied Sept. 24, 1984.

Review Denied Nov. 20, 1984.

Messing & Glicksman, P.C. by Elliot Glicksman, Tucson, for plaintiff/appellant

Chandler, Tullar, Udall & Redhair by Edwin M. Gaines, Jr., and S. Jon Trachta, Tucson, for defendants/appellees.

OPINION

HATHAWAY, Judge.

This appeal arises out of a lawsuit alleging that police officer Abbott used excessive force in arresting appellant and the City of Tucson negligently supervised its police force. We are required to address two issues: (1) Whether Officer Ernest Abbott had probable cause to arrest appellant Barbara English-Clark, and (2) whether evidence suggesting that Officer Abbott had a history of using excessive force and that the City of Tucson negligently retained and supervised Abbott was properly excluded. The jury found adversely to appellant on the issue of excessive force and the court directed a verdict for the city on the issue of negligent supervision.

The incident leading to this lawsuit occurred on April 3, 1980. Appellant was the passenger in a pickup truck driven by her husband, Cleet Clark. The Clarks had been transporting a car on a trailer, first to an insurance appraiser and then to an auto repair shop. They dropped the car off at about 4 p.m. at the Auto Center on Alvernon Way near 22nd Street. They went around the block and, as they returned from 22nd Street onto Alvernon, appellant noticed Officer Abbott sitting on a motorcycle. Abbott, as part of his duties, was watching afternoon rush hour traffic to make sure it flowed smoothly. His attention was drawn to the Clark vehicle when he heard tires squeal and observed a small compact station wagon almost hit the rear of the Clark's trailer. He noticed the absence of turn signals and brake lights on the trailer and drove up behind the Clark vehicle with his emergency lights flashing. Mr. Clark, who apparently saw Abbott in the rear view mirror, continued driving despite several opportunities to stop. At 29th Street and Alvernon, Abbott pulled alongside Clark's vehicle while it was stopped at a red light. Abbott informed Clark of the missing brake lights and asked Clark to pull off the road. Clark responded with profanities and drove off when the traffic light turned green. Abbott turned on his siren for a moment and Clark stopped his truck in the road near 32nd Street. Clark got out of his truck, walked toward Abbott with a walking stick and the two men engaged in a heated discussion. Abbott informed Clark that the tail lights were not working and that, as a result, an accident almost occurred at 22nd Street and Alvernon. When Abbott asked Clark for his driver's license and registration, Clark said that the truck belonged to his mother, returned to the truck and drove away. Abbott followed Clark, this time with his siren operating. Clark stopped several blocks later, this time in the single westbound lane of 32nd Street. Abbott had called for police assistance and two officers arrived within minutes. Clark, meanwhile, turned the ignition off, put the keys on the seat and got out of the truck. Abbott approached Clark asking for a driver's license and registration twice, each time Clark answered with profanities. At some point during these exchanges, Abbott received Clark's driver's license. Abbott grabbed Clark's walking stick and attempted to place him under arrest, and a struggle ensued. Eventually, Clark was subdued and escorted to a police car.

Abbott then approached appellant, who had remained in the truck during the incident. Abbott asked for and received appellant's driver's license and decided to inform appellant of her Miranda rights as a precautionary measure even though she was not under arrest. As appellant was giving Abbott her license, Abbott saw approximately six shotgun shells on the dashboard and an array of loose and bottled pills on the seat and floor. When Abbott left appellant to check her license, appellant left the truck, locked the door and went to a nearby house to call her mother-in-law. When she returned, Abbott approached her, read her the Miranda warnings and asked her for the keys to the truck, which were hanging from appellant's pants. When she refused, Abbott asked again and warned her that she would be arrested if she did not cooperate. Appellant refused again and was arrested for "hindering an investigation."

After being notified of her arrest, appellant was handcuffed. According to appellant's testimony, Abbott was excessively forceful when putting on the handcuffs despite his alleged awareness of her injured right wrist. After she was handcuffed, he searched her and allegedly fondled her breasts in the process. He denies any search or fondling.

When Abbott acquired the truck keys, he and another officer began searching the truck for the registration. As he sat down on the seat, he felt a hard object underneath a jacket. He lifted the jacket and turned over what appeared to be a .45-caliber automatic pistol. As he did, the weapon, a pellet gun, discharged. He picked it up and laid it on the dash. He opened the glove compartment in search of the registration and found a pistol in its holster. Later in the search, he saw several drug containers, most of them vials with Mr. or Mrs. Clark's name written on them, and he found the registration.

After completing the search, Abbott discussed with other officers the violations for which appellant would be charged. He decided to charge her with obstructing a criminal investigation, a class five felony under A.R.S. § 13-2409, after rejecting the charge of misdemeanor hindering a prosecution. This charge was ultimately dismissed.

Appellant and her husband filed a civil lawsuit against the City of Tucson and all of the officers involved arising from this incident. They alleged excessive force was used during both arrests, causing injuries to Mr. Clark's wrists, knuckles, lower back, kidneys, liver, etc., and to appellant's right wrist. They further alleged that the City of Tucson was liable for the officers' excessive use of force and that the city negligently supervised its police force, resulting in a fostered policy of police abuse. By the time of trial, the claims against two of the arresting officers had been dismissed and the remaining allegations were tried to a jury. The jury decided for appellee Abbott on the issue of excessive force and the court directed a verdict for the city on the allegation of negligent supervision.

Appellant first claims that no probable cause existed for her arrest for violating A.R.S. § 13-2409 because she did not "by means of bribery, misrepresentation, intimidation or force or threats of force [knowingly attempt to] obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer ...." Since A.R.S. § 13-409 permits the use of reasonable force only when an arrest is founded on probable cause, appellant claims that the issue of probable cause was relevant and that her case supporting excessive force "was severely hampered when counsel could not argue that the officer did not have a reasonable belief in the lawfulness of the arrest." We conclude that probable cause for the arrest was established.

A warrantless arrest is authorized when a police officer has probable cause to believe a felony has been committed and that the arrestee has committed it. A.R.S. § 13-3883(1). When arresting someone for a misdemeanor, the police officer must have probable cause to believe the misdemeanor has been committed in his presence and that the arrestee committed it. A.R.S. § 13-3883(2). Probable cause for an arrest exists when the police...