Gladden v. Roach, 87-6173

• Decision Date: 08 February 1989
• Docket Number: No. 87-6173,87-6173
• Parties: Richard GLADDEN, Plaintiff-Appellant, Cross-Appellee, v. Randy W. ROACH (Officer), et al., Defendants-Appellees, and City of Denton, Defendant-Appellee Cross-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1196

864 F.2d 1196

Richard GLADDEN, Plaintiff-Appellant, Cross-Appellee, v. Randy W. ROACH (Officer), et al., Defendants-Appellees and City of Denton, Defendant-Appellee Cross-Appellant.

No. 87-6173

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 8, 1989.

Don Gladden, Fort Worth, Tex., for plaintiff-appellant cross-appellee.

Ronald H. Clark, Henderson, Bryant & Wolfe, Sherman, Tex., Debra Adami Drayovitch, Denton, Tex., for all defendants except Roach.

Louis Bright, Austin, Tex., Patricia Higginbotham, Asst. Atty. Gen., Dallas, Tex., for Roach.

Appeals from the United States District Court for the Eastern District of Texas.

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

Richard Gladden filed suit under 42 U.S.C. Sec. 1983, alleging that Officer Randy Roach of the North Texas State University (NTSU) Police, members of the Police Department of Denton, Texas, the City of Denton, and others, had violated his rights under the First, Fourth, Fifth, and Fourteenth Amendments. The complaint also contained state law claims. The violations alleged in the complaint arose out of two separate arrests of Gladden, one by NTSU and one by Denton police officers. After a trial, several interrogatories were submitted to the jury, which returned a verdict for the defendants on all of the interrogatories.

Both parties made motions for judgment, and in a memorandum opinion the district court found that Gladden's civil rights had been violated by his detention for 87 hours after his September 15, 1984, arrest. The district court awarded Gladden nominal damages of $1.00 for the violation.

On April 23, 1983, NTSU police officer Randy Roach arrested Gladden for public intoxication. After arresting Gladden, Roach transported him to the university police station for booking. Roach, in an effort to fill out the arrest report, asked Gladden for his name, address, and date of birth. Gladden refused to answer the questions, asserted that he had a right to remain silent, and requested that he be allowed to call his attorney. Roach informed Gladden that if he continued to refuse to answer, he would be charged, under Texas Penal Code Article 38.02, with failure to identify himself to a police officer. Gladden attempted to use the phone without permission and was physically restrained by Officer Roach. Roach then transported Gladden to the Denton Municipal Jail, where Gladden was charged with public intoxication and failure to identify himself. Gladden posted a cash appearance bond. The charge of failure to identify was dismissed on Gladden's motion, and a jury found Gladden not guilty of the public intoxication charge.

On September 15, 1984, Denton Police Officer Britt arrested Gladden. The arrest occurred when officers attempted to shut down a loud party about which they had received at least two complaints. Gladden, who was a guest at the party, interfered with the officers and Britt arrested him for public intoxication and disorderly conduct. Gladden contends that Britt lacked probable cause for the arrest.

Following the arrest, Gladden was transported to the Denton police station where he again refused to answer when asked his name, address, and other booking information. Two of Gladden's friends came to the jail and posted $200 bond to free him. After the officers completed the necessary paperwork to free Gladden, they retrieved his personal property to return to him, but Gladden refused to accept the bond. Gladden was held for 87 hours before he was arraigned before a magistrate and released on a $400 surety bond.

Gladden contends that the district court erred in holding that he did not have an absolute right to remain silent after his arrest on April 23, 1983. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself...." U.S. Const. Amend. V. The Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627-1628, 16 L.Ed.2d 694 (1966), that once a defendant in custody asks to speak with a lawyer all interrogation must cease until a lawyer is present. The Miranda safeguards apply whenever a person in custody is interrogated, either by express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Interrogation is defined as words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id.

We held in United States v. Menichino, 497 F.2d 935, 941 (5th Cir.1974) that biographical questions, which are part of the booking routine and are not intended to elicit damaging statements, are not interrogation for Fifth Amendment purposes. Thus, it is permissible for officers to ask straightforward questions to secure the biographical data necessary to complete the booking process. Other circuits have held that questions seeking biographical information for booking purposes do not constitute interrogation or its functional equivalent. See United States v. Morrow, 731 F.2d 233, 237 (4th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2689, 81 L.Ed.2d 883 (1984); United States v. Kane, 726 F.2d 344, 348-49 (7th Cir.1984); United States v. Sims, 719 F.2d 375, 378-79 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984).

While it is conceivable that questions about a person's identity or residence could be incriminating, or lead to incriminating information, on the facts of this case such statements were not incriminating. Identity was not an element of either the crime of public intoxication or that of disorderly conduct. The district court did not err, therefore, in holding that Gladden did not have an absolute right to remain silent following his arrest.

Gladden also asserts that the district court erred in ruling that Texas Penal Code Article 38.02 as applied to him on April 23, 1983, did not violate the Fourth, ¹ Fifth, and Fourteenth Amendments. Gladden asks this court to declare Article 38.02 unconstitutional as applied to the plaintiff and to grant him injunctive relief from having the statute enforced against him in the future.

The State of Texas argues that Gladden lacks standing to seek injunctive relief. This contention has merit. One seeking injunctive relief must demonstrate a real and immediate threat that he will be subject to the behavior which he seeks to enjoin. It is not sufficient for the plaintiff to speculate that he will be subject to injurious conduct if the practice is continued or the law remains on the books. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

Gladden was charged with a violation of Article 38.02 only at the time of his April 23, 1983, arrest. He was not charged with violating the statute the other time he was arrested nor has he demonstrated that he is realistically threatened by the statute. The record does not suggest that Gladden is any more likely than other persons to be subjected to a charge of failure to identify. Additionally, the statute has been amended since Gladden's arrest. At the time of Gladden's arrest, Art. 38.02 made it an offense for a person "lawfully stopped" by an officer to fail to identify himself to the officer. The statute was amended, effective September 1987, to require a lawful arrest before identification is required. Nothing in the record suggests that Gladden is more likely to be arrested than other people. See Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984). Since he lacks standing, Gladden cannot receive the equitable relief he requests.

Gladden asserts that City of Houston v. Hill, 482 U.S. 451, ----, n. 7, 107 S.Ct. 2502, 2508 n. 7, 96 L.Ed.2d 398, 410, n. 7 (1987), is analogous to his situation and provides him with standing. In Hill, a municipal ordinance made it unlawful for a person to interrupt a police officer in the performance of duty. Hill, a "gay" activist, had been arrested four times for violating the ordinance; the last arrest involved only verbal "interference." Hill sought an order permanently enjoining enforcement of the ordinance. At the hearing on the injunction, Hill testified that he planned to continue to interrupt "nonviolently any illegal police activity" he observed at any time, under any circumstances. 107 S.Ct. at 2505 n. 1. The Supreme Court concluded that Hill's stated intention to interfere meant he confronted a genuine threat that the statute would be enforced against him. Id. n. 7. Gladden asserts that his statement that he would sue officers Roach and Hooper for their allegedly illegal conduct "if it takes me the rest of my life," is akin to the statement in Hill. This argument is meritless. Gladden cannot use his isolated statement of April 23, 1983, to elevate himself to the role of "citizen provacateur," Hill, 107 S.Ct. at 2508 n. 7, so as to accord him standing.

Insomuch as Gladden's second assignment of error seeks to overturn the trial court's decision that the ordinance was not unconstitutionally applied to him on April 23, 1983, this argument does not differ from his first assignment of error. The basis of Gladden's argument on this point is that the Article 38.02 imposes a cost on his assertion of his Fifth Amendment privilege to remain silent; but if no such privilege exists, then clearly the statute does not unconstitutionally impose a cost on the exercise of it. Consequently, even had the court found that Gladden had standing to request injunctive relief, it properly denied it.

Gladden also asserts that Officer Britt lacked probable cause to arrest him on September 15. That arrest occurred after Gladden interfered when officers attempted to shut down a loud party. The arrest was for disorderly conduct and public intoxication. Gladden argues that the court's instruction on the elements of the offense of disorderly conduct failed to properly define that offense, so that...