McIntosh v. Arkansas Republican Party-Frank White Election Committee, PARTY--FRANK

• Decision Date: 14 April 1987
• Docket Number: No. 86-1938,PARTY--FRANK,86-1938
• Parties: Robert "Say" McINTOSH, Appellant, v. ARKANSAS REPUBLICANWHITE ELECTION COMMITTEE; Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police; North Little Rock City Police Dept.; Bill Younts, Individually & as Chief of North Little Rock Police Dept.; John Doe, & Richard Roe, etc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 409

816 F.2d 409

55 USLW 2627

Robert "Say" McINTOSH, Appellant, v. ARKANSAS REPUBLICAN PARTY--FRANK WHITE ELECTION COMMITTEE Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police; North Little Rock City Police Dept.; Bill Younts, Individually & as Chief of North Little Rock Police Dept.; John Doe, & Richard Roe etc., Appellees.

No. 86-1938.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1987.

Decided April 14, 1987.

P.A. Hollingsworth, Little Rock, Ark., for appellant.

Bill Luppen, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and CAHILL, ^* District Judge.

HEANEY, Circuit Judge.

This case has been before this Court once before. See McIntosh v. Ark. Republican Party--Frank White, Election Comm., 766 F.2d 337 (8th Cir.1985). Robert McIntosh now appeals the dismissal by the district court on remand of his federal claim under 42 U.S.C. Sec. 1983 and of his pendent state claim. Those claims assert that McIntosh was arrested and falsely imprisoned in violation of the federal Constitution and state law by the appellees, Sergeants Jerry Reinold and Barney Phillips of the Arkansas State Police. We reverse and remand for trial on the issue of damages.

McIntosh lives in Little Rock, Arkansas, where he owns a restaurant. McIntosh is perhaps better known for his community activities such as operating a free breakfast program for school children and a work program to help young adults learn to start businesses. According to McIntosh, he also does "a little protesting now and then."

It was McIntosh's involvement in protesting that prompted him to buy a ticket for $125 to the Frank White Appreciation Luncheon scheduled for February 26, 1982, at a banquet hall in the Little Rock Convention Center. The purpose of the luncheon was to raise money for White's re-election campaign for Governor of Arkansas. Vice President George Bush was to be the luncheon's guest speaker.

Before the date of the luncheon, McIntosh notified Governor White's office that he intended to speak at the luncheon. Aware that McIntosh ardently opposed Governor White's re-election and of McIntosh's reputation as a political activist, Curtis Finch, the person in charge of the luncheon, decided that McIntosh should be refunded the money paid for the ticket and not allowed to speak. See McIntosh, 766 F.2d at 339.

On the day of the luncheon, a group of protesters gathered on the ground floor of the Convention Center. McIntosh stood by himself in a common access area on a lower floor connected to the ground floor by an escalator. McIntosh positioned himself about twenty feet from the double-doors of the banquet hall. He wore an old brown suit, a wide red necktie, a red tie around his waist, and tattered cowboy boots. McIntosh intended his attire to bring the plight of the poor to the attention of those attending the luncheon.

Upon noticing McIntosh in the common access area, Finch approached him and asked him to leave, offering a refund of the $125 paid for the ticket. Finch repeated his request two or three more times. Each time McIntosh responded that he had his ticket and planned to enter the banquet hall. Sergeants Reinold and Phillips, who had been forewarned of McIntosh's intended presence, went over to McIntosh. They told McIntosh that he could not attend the luncheon and asked him to leave. McIntosh repeated his intention to attend. When Reinold and Phillips threatened to arrest him, McIntosh responded "Well, then take me to jail." After McIntosh ignored another request by Reinold to leave, Reinold and Phillips arrested him.

Reinold and Phillips handcuffed McIntosh, carried him up the escalator, and brought him to the police car. McIntosh did not resist the arrest. The officers took McIntosh to North Little Rock jail where he was charged with disorderly conduct. The police detained McIntosh for one and three-quarters hours; McIntosh spent most of that time in a holding cell. The police released McIntosh on an appearance bond. The charge against him was later dismissed.

McIntosh filed a lawsuit in federal district court seeking compensatory and punitive damages of $2,000,000. McIntosh asserted that the defendants ¹ abridged his civil rights in violation of 42 U.S.C. Secs. 1981, 1983, 1985(3), and 1986, by denying him entrance to the luncheon because of his race, by denying him the opportunity to speak at the luncheon, and by arresting him. McIntosh also asserted state claims of false arrest and false imprisonment. The district court dismissed McIntosh's lawsuit. See McIntosh v. White, 582 F.Supp. 1244 (E.D.Ark.1984).

On the first appeal, this Court affirmed the dismissal of the federal claims based on allegations of racial discrimination and violations of free speech. See McIntosh, 766 F.2d at 340-41. We further held that the district court had not ruled on McIntosh's section 1983 claim based on false arrest, although McIntosh had pleaded and argued the issue below. We thus remanded this claim to the district court for a new trial on the merits. Id. at 341. Finally, in regard to McIntosh's pendent state claims of false arrest and false imprisonment, we determined that the district court had not followed state law in placing the burden of proving the arrest was without probable cause on McIntosh. We, therefore, reversed the district court. Id.

On remand, the district court again dismissed McIntosh's lawsuit. The district court held that Reinold and Phillips had probable cause under federal and state law to arrest McIntosh. This appeal ensued.

A. McIntosh's Section 1983 False Arrest Claim

It must initially be mentioned that McIntosh's section 1983 false arrest claim relies on a substantive fourth amendment right to be free from unreasonable searches and seizures. His claim is not based on procedural due process rights. Therefore, the Supreme Court's holding in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that a section 1983 due process claim cannot be based on a state employee's negligent loss of property if state remedies provide adequate relief, does not affect the viability of McIntosh's section 1983 claim. See Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985), (section 1983 false arrest claim based on substantive fourth amendment right not barred by Parratt ); see also Wilson v. City of North Little Rock, 801 F.2d 316, 321-22 (8th Cir.1986) (section 1983 claim of violation of equal protection clause of fourteenth amendment because of a racially motivated deprivation of property not barred by Parratt ).

Since the officers in this case do not dispute that they detained McIntosh, the central issue is whether the officers have carried their burden of showing they arrested McIntosh with probable cause. See Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971). In analyzing the probable cause issue, the district court, relying on Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979), asked whether Reinold and Phillips reasonably believed McIntosh had committed or was about to commit the misdemeanor of disorderly conduct. We believe this is the wrong standard.

Although DeFillippo seems to equivocate on the nature of probable cause standard, ² subsequent decisions of the Supreme Court and this Court have confirmed that the proper standard is whether the arresting officer reasonably believes an individual has committed or is committing a crime. ³

Examining the facts of this case and the Arkansas disorderly conduct statute under this standard, it is apparent that Reinold and Phillips did not have probable cause to arrest McIntosh. The provision of the Arkansas disorderly conduct statute, under which McIntosh was charged, states "[a] person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he * * * disrupts or disturbs any lawful assembly or meeting of persons." Ark.Stat. Sec. 41-2908(1)(d) (Repl.1977).

We find no evidence in the record which would give Reinold and Phillips a reasonable basis for believing McIntosh had violated or was violating the Arkansas disorderly conduct statute. At no time during the incident at the Convention Center could one have reasonably believed that McIntosh disrupted or disturbed the campaign luncheon.

Reinold and Phillips point out that, in their conversations with McIntosh in the common access area, he became agitated and his voice rose. Reinold testified that he thought the incident might "get out of hand." The officers, however, never state that McIntosh shouted, made loud noises, or otherwise became unruly. The district court did not find nor did Reinold and Phillips claim that they thought McIntosh's voice was audible in the banquet hall. In fact, we find no evidence in the record showing the officers could reasonably have thought McIntosh's voice or actions in any way affected the persons entering or gathering in the banquet hall.

Reinold and Phillips counter that they should not have been forced to "sit idly by and wait until a verbal confrontation developed into a physical confrontation or until Mr. McIntosh stepped through the threshold of the door." According to Reinold and Phillips, McIntosh's stated intention of entering the banquet hall and his agitated state provided sufficient probable cause to arrest McIntosh. We disagree. While Reinold and Phillips did not have to "sit idly by," they did have to wait to arrest McIntosh until they reasonably believed he had committed an offense or was in the process of committing an offense. From the record it is clear that McIntosh had not so much as nodded toward the doors of the banquet hall once he assumed his position approximately twenty...