Scott v. Donovan, C80-2243A.

• Decision Date: 06 May 1982
• Docket Number: No. C80-2243A.,C80-2243A.
• Citation: 539 F. Supp. 255
• Parties: Katie O. SCOTT and Robert Hall, Plaintiffs, v. Theresa DONOVAN, Defendant and Third-Party Plaintiff, v. Dennis Ray FARMER and City of Atlanta, Third-Party Defendants.
• Court: U.S. District Court — Northern District of Georgia

539 F. Supp. 255

Katie O. SCOTT and Robert Hall, Plaintiffs, v. Theresa DONOVAN, Defendant and Third-Party Plaintiff, v. Dennis Ray FARMER and City of Atlanta, Third-Party Defendants.

No. C80-2243A.

United States District Court, N. D. Georgia, Atlanta Division.

May 6, 1982.

James B. Drew, Jr., Atlanta, Ga., for plaintiffs.

George N. Sparrow, Jr., East Point, Ga., Marva Jones Brooks, Laurince C. Mayes, Atlanta, Ga., for third-party defendants.

Dennis Ray Farmer, pro se.

ORDER

MOYE, Chief Judge.

The above-styled matter is before the Court on several motions: (1) plaintiffs' motion for leave to amend their complaint to add the City of Atlanta, Georgia, as a defendant; (2) defendant Donovan's motion for summary judgment; and (3) the City of Atlanta's motion for summary judgment.

Plaintiffs' motion for leave to amend their complaint to add the City of Atlanta, Georgia, as a direct defendant, having been read and considered, is hereby GRANTED. The Court will consider the City's motion for summary judgment as seeking dismissal both as a direct defendant and as a third-party defendant.

The undisputed facts of this case, based upon the pleadings and the six depositions filed are as follows. On February 2, 1980, plaintiff Scott purchased a 1965 Ford Fairlane Galaxie from Dennis Ray Farmer, d/b/a D & J Auto Parts in East Point, Georgia. Farmer sold the automobile for the account of Paul Carrigan and gave the sale proceeds to Carrigan. Dep. of Farmer at 18. Plaintiffs were not furnished title to the automobile on the date of purchase, but were promised by Farmer that he would soon acquire title by mail and furnish it to them. Dep. of Scott at 9. The car actually was titled in the name of Fred Beasley, from whom the vehicle had been stolen while it was loaned to his brother, Larry Beasley. Dep. of F. Beasley at 8, 11-12.

After having purchased the Ford from Farmer, the plaintiffs were stopped by City of Atlanta police officers on March 16, 1980, who told plaintiffs that their vehicle was reported stolen. The officers' "informant" failed to appear to press charges, so the police released the plaintiffs, advising them to acquire title from their vendor. Dep. of Scott at 10-11.

On the afternoon of March 17, 1980, plaintiffs returned to Farmers' place of business to attempt to obtain a refund. Dep. of Scott at 12. Farmer's wife, Juanita, called the East Point, Georgia, police at plaintiff Scott's request to ascertain whether the automobile was listed as stolen. Id. As a result of this call, officer Theresa Donovan was dispatched to D & J Auto Parts; she had ascertained that the vehicle in question was listed as stolen prior to her arrival. Dep. of Donovan at 8. Officer Donovan had obtained this information over her radio from a central communications office, id. at 10-11, which had checked with Atlanta police Sergeant J. L. Stroud, Sr., to make sure the car was still listed as stolen. Dep. of Stroud at 22. There is no indication that Sergeant Stroud directed officer Donovan to hold the automobile for the City of Atlanta; the depositions of the officers indicate that Sergeant Stroud merely told the communications officer the car was still listed as stolen, dep. of Stroud at 20, and that the communications officer told officer Donovan that she had talked with Sergeant Stroud and that officer Donovan should hold the plaintiffs for Atlanta. Dep. of Donovan at 14. It would be contrary to the policy of the Atlanta Bureau of Police Services for Atlanta to prosecute the individuals found in possession of a car actually stolen in Atlanta if those individuals were arrested for theft by receiving in another jurisdiction. Dep. of Stroud at 44. The prosecution would be left to the arresting jurisdiction.

While on the premises of D & J Auto Parts in East Point, plaintiffs showed officer Donovan a receipt they had received from Farmer when they purchased the car. Officer Donovan's "understanding at the time was that she (Scott) had been stopped by Atlanta and was unaware that the car was stolen and she was back at Mr. Farmer's trying to get the incident straightened out." Dep. of Donovan at 8. Donovan arrested plaintiffs as opposed to Farmer because they were in possession of a stolen vehicle and she felt she was making the arrest for the City of Atlanta, id. at 18-19, although Farmer acknowledged to officer Donovan that he had sold the car to the plaintiffs, id. at 26. Plaintiffs were taken to the East Point booking room, read their Miranda rights, and placed in a small room. Dep. of Scott at 13. Approximately thirty minutes after plaintiffs were booked, officer Donovan returned and said to plaintiff Scott, "This is your lucky day. You can go. Because you have small children you can go." Id. at 15.

On the basis of the above facts, plaintiffs aver that they were wrongfully arrested and imprisoned in violation of 42 U.S.C. § 1983, and that they were deprived of the privileges, immunities, and the equal protection guaranteed to them as citizens of the United States by the fourth, fifth, seventh, and fourteenth amendments to the Constitution of the United States. Complaint ¶ 8.

Donovan's Motion for Summary Judgment

Defendant Donovan seeks dismissal of the case against her on the ground that the arrest of plaintiffs was based upon probable cause and that even if her acts were negligent they do not arise to the stature of a constitutional tort.

"The Constitution does not guarantee that only the guilty will be arrested," Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979), but "a warrantless and malicious arrest based on no probable cause violates liberty, and hence section 1983." Reeves v. City of Jackson, 608 F.2d 644, 650 (5th Cir. 1979). In Reeves, the plaintiff alleged that he was falsely arrested and imprisoned in violation of his fourteenth amendment liberty interest. The court held that a jury should decide whether probable cause existed for plaintiff's arrest, id. at 650, as well as whether the arresting officers could assert a good faith immunity. Id. at 651. The court's holding was not that "probable cause" and "good faith" determinations are always jury questions, but that on the basis of the facts confronted in the case at bar they were jury questions.

Defendant Donovan argues that she had probable cause to arrest plaintiffs because they were in possession of an automobile known by her to have been stolen, in violation of Ga.Code Ann. § 26-1806, which reads:

Theft by receiving stolen property

(a) A person commits theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. "Receiving" means acquiring possession or control or lending on the security of the property.

(b) In any prosecution under this section it shall not be necessary to show a conviction of the principal thief.

The City has argued that probable cause for arrest arose from the fact that the plaintiffs were the occupants of a stolen vehicle, citing Lipton v. United States, 348 F.2d 591 (9th Cir. 1965), and Coley v. State, 135 Ga.App. 810, 219 S.E.2d 35 (1975).

Lipton held that upon learning via radio from his headquarters that a stopped car was a stolen car in the possession of a particular driver, an officer had probable cause for arresting the driver on the charge of driving a stolen vehicle. 348 F.2d at 594. Coley held that the occupants of a stolen vehicle were lawfully placed under arrest under the facts and circumstances presented, which included an informant's prior tip that a stolen car would arrive at a particular residence on a particular night. 135 Ga.App. at 814, 219 S.E.2d 35.

The Court concludes that the question of existence of probable cause, which is based upon the facts and circumstances within the arresting officer's knowledge, is a genuine issue of material fact which may best be determined by a jury. Thus, the Court declines to conclude as a matter of law that probable cause arose for plaintiffs' arrest because of the explanatory factors known to defendant Donovan with respect to plaintiffs' possession of the stolen vehicle.

In her answer, although not in her brief, defendant Donovan relied on her good faith as a defense to plaintiffs' claim. Even if defendant Donovan lacked probable cause in arresting plaintiffs, she can avoid section 1983 liability by virtue of her qualified immunity if she can demonstrate her good faith in making the arrests. Walters v. City of Ocean Springs, 626 F.2d 1317, 1320 (5th Cir. 1980) (per curiam). Good faith not having been briefed on summary judgment, however, that question is similarly held for trial by jury. See Reeves v. City of Jackson, 608 F.2d 644, 651 (5th...