Perkins v. Cross, H-C-79-77.

• Decision Date: 29 April 1983
• Docket Number: No. H-C-79-77.,H-C-79-77.
• Parties: Rev. P.L. PERKINS, Rev. C.W. Gilcreast, Will Collier, Will Rodgers, Betty Jakes and Jessie Jakes, Plaintiffs, v. James T. CROSS, Clyde Murphy, Edwerne, Charles Weaver, Bill Chapman and Bob Chisnoll, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

562 F. Supp. 85

Rev. P.L. PERKINS, Rev. C.W. Gilcreast, Will Collier, Will Rodgers, Betty Jakes and Jessie Jakes, Plaintiffs, v. James T. CROSS, Clyde Murphy, Edwerne, Charles Weaver, Bill Chapman and Bob Chisnoll, Defendants.

No. H-C-79-77.

United States District Court, E.D. Arkansas, E.D.

January 24, 1983.

On Petition for Attorneys Fees April 29, 1983.

L.T. Simes, II, West Helena, Ark., for plaintiffs.

Ralph C. Murray, West Helena, Ark., for defendants.

MEMORANDUM OPINION

WOODS, District Judge.

PRELIMINARY STATEMENT

In September of 1977 the Concerned Citizens, an organization of black citizens in West Helena, Arkansas, began a boycott against Twin Center Shopping Center, the principal retail merchandizing area in that municipality. The aims of the boycott as expressed in a petition submitted to the City Council were to force aldermanic elections by wards, resignation of the Mayor, dismissal of the Chief of Police and several police officers, more black employment, and action regarding alleged police brutality. (PX 2) The boycott was led by plaintiffs Perkins and Gilcreast. There were marches, picketing and extensive distribution of leaflets at the shopping center. The boycott was effective, causing a substantial loss of revenue to businesses in the shopping center. It was supported by a majority of the black community although some blacks resented the rather aggressive attempts of the Concerned Citizens to dissuade them from patronizing stores in the shopping center.

The boycott continued without serious incident until December 23, 1977. Police and city officials conceded the right of the Concerned Citizens to picket and distribute leaflets. As the Christmas crowds began to build up at the shopping center, the police received complaints that the pickets were impeding pedestrian and vehicular traffic. The Chief of Police instructed his officers to closely monitor the situation at the shopping center. On December 23, and December 24, 1977 five of the plaintiffs were arrested for disorderly conduct. In addition, plaintiff Gilcreast was charged with resisting arrest and interfering with an officer's exercise of his duty. The plaintiffs contend that they were arrested for exercising their constitutional right to picket and distribute literature. Defendants claim that plaintiffs were arrested under the section of the disorderly conduct statute which makes it a misdemeanor to impede vehicular or pedestrian traffic. Ark.Stat.Ann. § 41-2908.

THE PLEADINGS

There are serious deficiencies in the pleadings filed in this case. The complaint seeks compensatory and punitive damages against the defendants, all of whom are police officers. The Concerned Citizens as an organization is not a party plaintiff. The municipality of West Helena is not a party defendant. Class action rights are not asserted on behalf of members of the Concerned Citizens. The complaint was filed two years after the events which formed the gravamen of the complaint. Although an injunction is sought, the boycott was terminated early in 1978 and the organization has been inactive for almost five years. Obviously, there is no basis for an injunction. Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir.1981).

This suit is in the simple posture of a suit by individual plaintiffs against individual defendants for damages sustained because of arrests made in violation of 42 U.S.C. §§ 1981, 1983 and 1985. The answer filed on behalf of the defendants is also deficient. It fails to raise the affirmative defense of qualified immunity, which protects police officers who make an arrest in good faith and for probable cause.

When a court evaluates police conduct relating to an arrest, its guidelines are good faith and probable cause. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978); cert. den. 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1978). See also, Harlow v. Fitzgerald, ___ U.S. ___, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) where the court reexamined the qualified immunity defense in relation to White House aides but said that principles enunciated were applicable in § 1983 cases against state officials. 102 S.Ct. at 2738-39 n. 30. The entire matter of the qualified immunity of police officers in making arrests was thoroughly examined by the Court of Appeals of this Circuit within the last few months. In Harris v. Pirch, 677 F.2d 681 (8th Cir.1982) a jury verdict was reversed and judgment n.o.v. was entered for a sheriff who had made an alleged unconstitutional arrest and detention. Judge McMillian quoted from the Sixth Circuit opinion of Glasson v. Louisville, 518 F.2d 899 (6th Cir.1975): "Thus even though a police officer may not have chosen the wisest or most reasonable course of action, he will not be civilly liable if his conduct is based on a reasonable and good faith belief that it was necessary under the circumstances." Id. at 910.

The law is clear that the qualified immunity defense must be affirmatively pled, which was not done in this case. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980):

Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead we have described it as a defense available to the official in question. See Procunier v. Navarette, supra 434 U.S. at 562 98 S.Ct., at 859; Pierson v. Ray, supra, 386 U.S. at 556, 557 87 S.Ct., at 1219; Butz v. Economou, 438 U.S. 478, 508 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed. Rule Civ.Proc. 8(c) (defendant must plead any "matter constituting an avoidance or affirmative defense"); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969). It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith. Id. at 640, 100 S.Ct. at 1923.

In their answer, the defendants place much reliance on the statute of limitations 42 U.S.C. § 1983, which they argue should be one year. In Glasscoe v. Howell, 431 F.2d 863 (8th Cir.1971) the Court of Appeals decided this issue contrary to defendants' contention.

The posture of the pleadings dictates summary disposition against three of the plaintiffs. Reverend P.L. Perkins, who testified that he is legally blind, by his own admission did not participate in picketing or distributing literature. He was arrested on other occasions not on the initiative of any of the defendants but on private warrants by two black citizens who are not party defendants. The undisputed testimony is that Betty Jakes was arrested by Lt. Sam Gause, a black police shift commander. While it is true that Sgt. Bob Chisnoll did transport her to the police department and book her, he was acting on orders of his superior and did not participate in any way in her arrest. Lt. Gause, the arresting officer, was not made a party defendant. The same is true of Wilson Rodgers who was arrested by Officer Kenneth Bryant, who was not made a party defendant.

REV. C.W. GILCREAST

Reverend C.W. Gilcreast was secretary of the Concerned Citizens. He authored most of its literature, petitions and broadsides to public officials and the public generally. He was an aggressive and highly visible leader of the boycott. He was arrested by Sgt. Murphy at the shopping center at about 12:20 p.m. on December 24, 1977 for disorderly conduct. The arrest report states that "subject was passing out handbills and blocking pedestrian traffic." The testimony is in conflict as to the nature and extent of his resistance to the arrest. Murphy claims that Rev. Gilcreast sat down and then stretched out on his back and refused to enter the police car and that the only force exerted was in trying to force him into the police car against his active resistance, which mainly consisted of kicking the officers. Mayo Powell, a deputy sheriff, happened to be off duty in the shopping center with his wife. He went to the assistance of Murphy and radioed to another police unit operated by Officer Edwerne. Powell was an original defendant, but plaintiffs dismissed him from the suit. The three of them succeeded in handcuffing Gilcreast and placing him in the police car. Murphy and Powell testified that Gilcreast was not assaulted and that he offered substantial resistance to the arrest. Gilcreast denied this version. He claimed the officers threw him to the sidewalk, manhandled him into the police car and struck him after getting him into the car. He also claimed that Sgt. Murphy used profanity toward him. Murphy, an ordained minister like Perkins and Gilcreast, denied using profanity or mistreating Gilcreast. He testified that he only used such force as was necessary to effect the arrest. Gilcreast claimed that he had contusions at several locations on his body which required two-days hospitalization. There is no proof of any permanent disability or serious injury. Gilcreast's version of the incident is supported by the testimony of several members of the Concerned Citizens who were passing out literature and picketing at the time. The version given by Murphy is supported by Deputy Sheriff Mayo Powell, the present Mayor, Bob Teeter, then an alderman who observed the arrest of Rev. Gilcreast, and other witnesses who were present. The testimony is in hopeless conflict. I find that Rev. Gilcreast has failed to sustain his burden of proving that the officers were unjustified in their conduct toward him. Without question, he had the right to picket and pass out literature. He did not have a constitutional right to resist arrest. See Trejo v. Perez, 693 F.2d 482 (5th Cir.1...