Hill v. Rowland

• Decision Date: 14 March 1973
• Docket Number: No. 72-1258.,72-1258.
• Citation: 474 F.2d 1374
• Parties: Mrs. Cornelius Cuthbertson HILL, Appellee, v. W. A. ROWLAND and B. S. Treadaway, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

474 F.2d 1374 (1973)

Mrs. Cornelius Cuthbertson HILL, Appellee, v. W. A. ROWLAND and B. S. Treadaway, Appellants.

No. 72-1258.

United States Court of Appeals, Fourth Circuit.

Argued October 3, 1972.

Decided March 14, 1973.

J. J. Wade, Jr., Charlotte, N. C. (R. C. Carmichael, Jr., G. Patrick Hunter, Jr., and Wade & Carmichael, Charlotte, N. C., on brief), for appellants.

George S. Daly, Jr., Charlotte, N. C., submitted on brief, for appellee.

Frank G. Carrington, Jr., Executive Director, Americans for Effective Law Enforcement, Inc., on brief, for amicus curiae, Americans for Effective Law Enforcement, Inc.

Before BOREMAN and BRYAN, Senior Circuit Judges, and CRAVEN, Circuit Judge.

BOREMAN, Senior Circuit Judge:

This is a civil action wherein the plaintiff, Mrs. Cornelius Cuthbertson Hill, seeks to recover compensatory and punitive damages from the defendants, police officers of the City of Charlotte, North Carolina.

On August 18, 1969, Mrs. Hill, black, a 40-year old widow, was employed as a taxi-driver in Charlotte. At about 10 A.M. on that day, she parked her cab across from, and started across the street toward, an establishment known as "Mr. Fred's," her purpose, as subsequently stated by her, being to arrange with the proprietor to have her shoes repaired at a later date.¹ "Mr. Fred's" had been under surveillance by the Charlotte police during the preceding week due to an informant's tip that an illegal lottery² was there being operated. On three separate days during the surveillance, and shortly after several other persons had entered and left, Mrs. Hill had been observed entering the premises, staying only one or two minutes, then returning to her taxi and driving away. At the moment of her arrival on the morning of August 18, Charlotte police officers, including defendants W. A. Rowland and B. S. Treadaway, who were inside the premises known as "Mr. Fred's" executing a search warrant, had seized certain evidence of an illegal lottery and had arrested several persons present including the proprietor who was found with "tickets," money and an adding machine on a table.

Mrs. Hill testified that she had started across the street after parking her cab when she saw a policeman, not in uniform, who was a "boyfriend" of hers leaning across a car parked in front of her cab, and she spoke to him but he did not answer. Someone at that time, "was hollering something about don't go there, or something." Mrs. Hill "started back across the street to slap the hell out of him because he didn't speak to me," but was, she claimed, grabbed from behind by a white man who pushed her into "Mr. Fred's." She was not able to identify the person who had so pushed her and there was no evidence that the officers inside the premises being searched had any knowledge that her entry was involuntary or accomplished by force. Upon her entrance, officers Treadaway and Rowland recognized Mrs. Hill as the black female observed on previous occasions during the surveillance. According to his testimony, officer Treadaway had been told by a reliable informer that she was periodically "taking away the lottery tickets." Mrs. Hill was officially placed under arrest by officer Rowland.

Mrs. Hill was searched by a female police officer who was participating in the raid and who testified that she first identified herself as "Officer Gillespie."³ No evidence of participation in a lottery was found on plaintiff's person. A pistol, which was described as a ".38 special" and which she carried in a holster on her hip, was taken from her. Mrs. Hill testified: "And then she the female officer started unbuttoning my blouse. I had on a blue blouse and she started unbuttoning it down the front. And then I started cursing and reached for my gun . . . and they grabbed my gun because I was going to shoot anybody trying to take my clothes off." The female officer denied searching the "upper portion of Mrs. Hill" and testified that the gun was confiscated prior to the search.

Mrs. Hill was taken before a Magistrate at the recommendation of defendant Treadaway. Evidence was presented to the Magistrate but, at the request of Treadaway, no warrant was issued for her arrest and she was released. However, the police kept her pistol temporarily and required her to produce evidence of lawful ownership. She was released and upon her return with persuasive evidence of lawful ownership of the pistol it was delivered to her.

Mrs. Hill instituted this suit in the district court against the several named defendants and advanced various theories of liability. The case ultimately went to the jury for a determination whether the arresting officers, Rowland and Treadaway, were liable to Mrs. Hill for (1) a violation of her civil rights under 42 U.S.C. § 1983, which violation assertedly arose from her warrantless arrest without probable cause, (2) false imprisonment, and (3) assault and battery, the latter two theories presented in plaintiff's complaint under the common law of North Carolina. The jury found each defendant liable under the first two theories but not under the third, and further found Mrs. Hill entitled to recover damages in the amount of $2.50 from each of the two defendant officers for each wrong. Rowland and Treadaway prosecute this appeal, not because of the amount of damages awarded but, as they say, because of the principle involved.

The issue is not unimportant. It concerns the standards by which police officers are to be governed and which they must observe and satisfy when making an arrest without a warrant if they are to avoid civil liability under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983. In their answer to the complaint, under "First Defense," the police officers alleged a "good faith" defense by stating: ". . . Plaintiff was temporarily detained in good faith by some police officers on suspicion of operating a lottery, with reasonable grounds and probable cause to do so." Under "Motions" in their answer, the police officers additionally stated that they were acting upon reasonable grounds and probable cause while attempting to locate and arrest persons charged in warrants with criminal offenses. The defendants requested that the jury be instructed as follows:

"4. The defense of good faith and probable cause is available to the defendants, and if you find that any defendant arrested the plaintiff, and that said defendant reasonably believed in good faith that the arrest was constitutional, then it would be your duty to render a verdict for the defendant even though the arrest was in fact unconstitutional."

This requested instruction was based upon Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a case which arose under § 1983 and which concerned the standard of civil liability for arrests made under a law later held unconstitutional. The Court there stated:

"We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983." 386 U.S. at 557, 87 S. Ct. at 1219.

The district court refused to instruct the jury as requested for the stated reason that Pierson v. Ray "is not a pertinent authority in this case." Instead, the court instructed the jury:

"The standard for arrest without a warrant amounts, instead, to a requirement that the arresting officer have probable cause and this is an objective standard, not personal to the law enforcement officer, and this standard has been very succinctly expressed by the Supreme Court a few years ago in Beck against Ohio 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) as follows: Whether an arrest is constitutionally valid depends upon whether at the moment the arrest was made the officers had probable cause to make it, whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man to (sic) in believing that the petitioner had committed or was committing an offense, bearing in mind that as in the case of searches the warrant is the procedure of choice.

. . . . . .

". . . The basic question is not the rights of law enforcement officers nor what the attitude of this community is towards, or the feeling of people of this community towards arrests, but the question is whether as between the individuals here the circumstances gave these officers probable cause to believe that a violation of law was taking place by Mrs. Hill at the time she was arrested. And this is the simplest statement I know to make of the question, the first question you\'ve got to decide.

"The concept of probable cause is not a personal thing. We are not here trying any case whether the defendants are mean or not, whether they acted in good faith belief that what they were doing was correct. The standard which, as I read the constitution and the decisions, the standard which applies doesn\'t challenge the good faith of the defendants. It simply asks you to decide whether under the circumstances, at the time of the arrest, a reasonably prudent man in their circumstances, knowing what they did, had probable reason or probable cause to believe that Mrs. Hill was then and there committing or had at that time committed a crime."

We think the lower court was in error in instructing the jury that the test of liability in this § 1983 action was the objective test of "probable cause" rather than the partly subjective test of the reasonable good faith belief of the police officers in the legality of the arrest.

In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2 Cir. 1972), the court reviewed the defense of good faith and probable cause which "at common law the police officer always had available to him," stating that such defense "has been consistently read as meaning good faith and ...