Gassner v. City of Garland, Tex.

• Decision Date: 02 February 1989
• Docket Number: No. 88-1225,88-1225
• Citation: 864 F.2d 394
• Parties: Jules GASSNER, Plaintiff-Appellee, v. CITY OF GARLAND, TEXAS, et al., Defendants, M.L. Bates, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 394

864 F.2d 394

Jules GASSNER, Plaintiff-Appellee, v. CITY OF GARLAND, TEXAS, et al., Defendants M.L. Bates, Defendant-Appellant.

No. 88-1225.

United States Court of Appeals Fifth Circuit.

Feb. 2, 1989.

Rehearing Denied March 7, 1989.

Gary Crapster, Mark Donheiser, Dallas, Tex., for defendant-appellant.

Douglas R. Larson, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WILLIAMS, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Plaintiff Jules Gassner filed suit under 42 U.S.C. Sec. 1983 against the City of Garland, Texas, and M.L. Bates, a police officer employed by the city, alleging, inter alia, that Bates arrested him without probable cause and used excessive force in making the arrest, in violation of his rights under the fourth and fourteenth amendments and state law. The district court dismissed the case as to the city, but denied Bates's motion for summary judgment on the ground that no reasonable police officer could have believed that there was probable cause to arrest Gassner for the offenses with which Gassner was charged.

I.

We state the facts as alleged by the plaintiff in his deposition. ¹ On February 12, 1985, Gassner, his wife, Carol Gassner, and their eight-year-old son, Gregory, ate dinner at a restaurant located in a Garland, Texas, shopping center. Gregory finished eating before his parents, and was permitted to wander off alone; some time later, Carol left the restaurant to attend a function at a nearby church. Finally, some time after his wife left, Gassner paid the check, but was unable to locate his son. After looking for him for approximately thirty minutes, Gassner decided to drive to the church to see whether, by some misunderstanding, Carol had taken Gregory with her.

When Gassner arrived at the church and found his wife, he learned that she had not taken Gregory with her. At that point, the Gassners became, in Gassner's words, "concerned"; his wife he described as "super frantic." Gassner, accompanied by his wife, got into his car and began to drive back to the shopping center. By this time, it was approximately 7:30 p.m.; in Gassner's words, "it was full dark."

On the way to the shopping center, according to his testimony, Gassner did not exceed the legal speed limit; he did admit, however, that when he made a right turn on a red light, his vehicle left the pavement on the righthand side of the intersection and went onto the dirt shoulder, at which time the car "bounced" when one of the wheels hit a hole in the shoulder. Shortly after making this right turn, Gassner saw the emergency lights of Officer Bates's police car behind him, and came to a quick stop on the side of the road.

Without waiting for the officer to approach, Gassner immediately exited his vehicle and began to walk "quickly"--he insists that he did not run--toward the police car, reaching the rear of his car before Bates was able to exit his squad car. According to Gassner, he walked with his arms extended out in front of his body, the palms of his hands facing forward, with his sportcoat unbuttoned to show the officer that he was unarmed; ² at the same time, he said, in a moderately loud voice, that he was glad to see the officer and that he needed his help.

Unfortunately, Gassner's actions did not elicit the desired response. After observing Gassner quickly approach him in an unusual fashion, Officer Bates exited his vehicle, drew his service revolver, and ordered Gassner to "freeze" and raise his hands above his head. After radioing for assistance, Bates approached Gassner and frisked him for weapons. After finding that Gassner was unarmed, Bates put away his service revolver.

The conversation that thereafter occurred can best be described as confused. The Gassners--Mrs. Gassner had by this time exited the car and joined the two men--both repeatedly attempted to inform Bates that they had lost their son at a nearby shopping center; Bates sought information as to who the Gassners were, where they lived, and where the shopping center was. From Gassner's deposition, the most one can conclude is that the Gassners expected the officer to come with them immediately to the shopping center to aid them in their search for their son; Officer Bates, on the other hand, expected them to stay and answer his questions until he decided on a course of action. From Bates's point of view, in other words, the Gassners were under an implicit but unmistakable order to remain where they were until directed otherwise.

The upshot of all this was that, after three or four exchanges, Gassner, obviously frustrated by either Bates's failure to understand the couple's situation or his refusal to do as Gassner expected, told Bates:

I'm going back up to that shopping center. You can get in your damn squad car and follow me up there, and we'll talk there.

As Gassner started to turn around to get into his car, Bates grabbed him by the shoulder and told him that the "only place you're going is to jail." In his own words, Gassner did not "cooperate" with Bates's attempt to push him against the back of Gassner's car; eventually, a scuffle ensued, which ended when Bates put Gassner in a chokehold, wrestled him to the ground, and handcuffed him.

After Gassner was handcuffed, other Garland police officers arrived and took Mrs. Gassner to the shopping center, where they found the Gassners' son. After placing Gassner in the back of his squad car, Bates also drove to the shopping center. On the way there, Gassner asked Bates why he had been arrested; Bates answered by saying that he had been arrested for "speeding," to which Gassner replied, "You dumb f---. That's the only thing you can't arrest me for."

After locating the Gassners' son, Bates took Gassner to the police station, where Gassner was charged with speeding and disorderly conduct. Later that night, he was released after signing the speeding ticket and posting bond on the disorderly conduct charge. Although he was prosecuted, the jury acquitted him on both charges.

II.

Gassner then filed this action. The complaint stated numerous causes of action under both state and federal law; in essence, the federal causes of action were unlawful arrest and the use of excessive force.

After both defendants deposed Gassner, the city obtained a dismissal of Gassner's complaint as to it. However, the court denied Bates's motion for summary judgment, which was based upon qualified immunity, concluding that no reasonable officer could have believed that there was probable cause to arrest Gassner for the offenses with which he was charged, namely, speeding and disorderly conduct. Bates appeals the denial of his motion, pursuant to Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

III.

Once again, we are called upon to define the contours of the qualified immunity from suit enjoyed by police officers under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In Harlow, the court described the parameters of what has become known as "Harlow immunity" for state officials who are charged in civil actions with violating a plaintiff's constitutional rights. The court defined this form of qualified immunity as follows:

[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

457 U.S. at 818, 102 S.Ct. at 2738.

In Anderson, the Court carefully considered the threshold which section 1983 plaintiffs must meet in order to overcome a claim of Harlow immunity:

The operation of [the Harlow ] standard ... depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.

Much the same could be said of any other constitutional or statutory violation. But if the test of 'clearly established law' were to be applied at this level of generality, it would bear no relationship to the 'objective legal reasonableness' that is the touchstone of Harlow....

107 S.Ct. at 3038-39. Hence, the Court offered the following refinement of the Harlow qualified immunity test:

[O]ur cases establish that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.

Id. at 3039. This court has taken the teaching of Anderson to heart. See Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir.1988) (holding that a right to "family integrity," although certainly of "constitutional stature," was an unsuitable basis upon which to fix section 1983 liability in particularized circumstances).

Indeed, even our cases predating Anderson--and specifically those involving section 1983 claims based upon alleged unlawful arrests--anticipated, and were responsive to, the concerns expressed therein. In Saldana v. Garza, 684 F.2d 1159 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983), the plaintiff argued that, because there was no probable cause for his arrest on charges of "public intoxication" and "disorderly conduct by abusive language," and because both the elements of those crimes and the constitutional requirement of probable cause were "well-settled," the defendant police officers could not claim qualified immunity under Harlow. In...