Gainor v. Rogers

• Decision Date: 09 October 1992
• Docket Number: No. 91-1708,91-1708
• Citation: 973 F.2d 1379
• Parties: John M. GAINOR, Appellee, v. Scott ROGERS; City of Moorhead, a Minnesota municipality; and John Doe, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1379

973 F.2d 1379

John M. GAINOR, Appellee, v. Scott ROGERS; City of Moorhead, a Minnesota municipality and John Doe, Appellants.

No. 91-1708.

United States Court of Appeals Eighth Circuit.

Submitted March 3, 1992.

Decided Aug. 20, 1992.

Rehearing and Rehearing En Banc Denied Oct. 9, 1992.

Barry P. Hogan, Moorhead, Minn., argued, for appellant.

Keith L. Miller, Moorhead, Minn., argued, for appellee.

Before LOKEN, Circuit Judge, LAY and HEANEY, Senior Circuit Judges.

LAY, Senior Circuit Judge.

This is an appeal from the district court's ¹ denial of a motion for summary judgment for claims brought against the defendant, police officer Scott Rogers, under 42 U.S.C. § 1983 (1988), for false arrest, use of excessive force, and violation of his First Amendment rights. Rogers sought summary judgment on the ground of qualified immunity. The district court determined that genuine issues of material fact existed and denied the motion. ² We affirm the judgment of the district court.

BACKGROUND

On the afternoon of March 24, 1989, John Michael Gainor was observed by Officer Rogers carrying a twelve-foot by six-foot wooden cross ³ through downtown Moorhead, Minnesota and distributing leaflets. Gainor was walking with a companion, Todd Dittmer. Rogers claims to have approached the two men because he suspected Gainor might be intoxicated, soliciting, begging, ⁴ obstructing traffic or otherwise creating a public nuisance. When questioned, Gainor informed Rogers of his walking ministry and his personal quest to carry the cross along the border of the United States to spread his religious message. After obtaining one of Gainor's leaflets, Rogers asked if Gainor was an ordained minister. Gainor responded affirmatively, and Rogers then asked for identification. Gainor pulled out a copy of the United States Constitution and informed Rogers that he had the constitutional right not to produce identification.

Gainor and Rogers entered into a debate about Gainor's right to withhold identification. Gainor eventually requested that Rogers contact his supervisor. Rogers radioed for assistance, and Sergeant Minnie and Officers Forsythe and McCullough arrived shortly. Gainor claims that the officers threatened to arrest him if he did not produce identification. Although the defendants dispute this allegation, Gainor's companion, Dittmer, was allowed to leave after he acceded to the officers' requests for identification. Gainor was placed under arrest and forced into a police car.

The manner in which Gainor was arrested is hotly disputed. Gainor claims that he suffered facial abrasions and injuries to his wrist and knee when the officers, without provocation, threw him to the ground, twisted his arms, and kneeled on his back and legs to handcuff him. The officers contend that the level of force used to handcuff Gainor was reasonable because Gainor physically resisted arrest. Gainor was formally charged with disorderly conduct and obstruction of the legal process. Those charges were later dropped and this suit followed.

Gainor's complaint alleged that the defendant officers lacked probable cause to arrest him, that they used excessive force in facilitating his arrest, and that his First Amendment rights of free exercise of religion and free speech were violated by his warrantless arrest. After a period of discovery, the defendants moved for summary judgment based on qualified immunity from suit. ⁵ The district court denied defendants' motion, finding issues of material fact with respect to each of the remaining claims. ⁶

DISCUSSION

It is well settled that the denial of a summary judgment motion which asserts qualified immunity from suit is appealable "to the extent that it turns on an issue of law...." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); see also Johnson v. Hay, 931 F.2d 456, 459 (8th Cir.1991); Wright v. South Arkansas Regional Health Center, 800 F.2d 199, 202 (8th Cir.1986).

We note further that the purpose of the qualified immunity defense for a state official is to shield a government official from suit rather than merely to serve as a defense to liability. Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815. Where the defense of qualified immunity is raised to an allegation of illegal arrest under the Fourth Amendment, the focal issue is the objective reasonableness of the officer making the arrest, even though probable cause to arrest is lacking. Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir.1989). The test is "whether a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987).

The district court denied the motion for summary judgment on the defense of qualified immunity by reasoning that a dispute of material fact existed for a jury to determine concerning whether Rogers reasonably believed he had probable cause to arrest the plaintiff. Reviewing a denial of a summary judgment on the basis of qualified immunity, the Ninth Circuit, in Bryant v. United States Treasury Dep't, 903 F.2d 717 (9th Cir.1990), similarly reasoned that whether an officer reasonably believed he or she had probable cause to make an arrest was a question of fact for the jury unless there was only one reasonable conclusion for a jury to find. The Supreme Court reversed, however, stating:

This statement of law is wrong for two reasons. First, it routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial. Second, the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be construed five years after the fact.

Hunter v. Bryant, --- U.S. ----, -----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (citation omitted).

Qualified immunity is best understood by reference to the basic analysis offered by Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). There the Court made clear that the issue on qualified immunity is separate from the merits. The issue on the merits is whether the officer violated the law when the arrest was made, whereas the immunity question is whether the officer violated clearly established law when the arrest was made.

In discussing the appealability of an interlocutory decision denying a motion for summary judgment based on qualified immunity, the Court in Mitchell observed:

Such a decision is "conclusive" in either of two respects. In some cases, it may represent the trial court's conclusion that even if the facts are as asserted by the defendant, the defendant's actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the district court that can alter the court's conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court's denial of summary judgment finally and conclusively determines the defendant's claim of right not to stand trial on the plaintiff's allegations, and because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred," it is apparent that "Cohen's threshold requirement of a fully consummated decision is satisfied" in such a case.

Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)) (emphasis added).

Thus, the only concern on appeal from a denial of summary judgment based on qualified immunity is whether a defendant is immune from trial. This issue is ordinarily one of law and not for a jury to determine. Hunter v. Bryant, --- U.S. ----, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Mitchell once again makes clear what the court's objective analysis should be on such a motion:

Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law.

Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (citation omitted) (emphasis added).

In reviewing the denial of the summary judgment on the defense of qualified immunity, Justice White outlined the role of the appellate court:

An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took. To be sure, the...