Sexton v. Gibbs

• Decision Date: 05 May 1970
• Docket Number: Civ. A. No. 2-728.
• Parties: Bruce SEXTON, Plaintiff, v. Bruce GIBBS and Terry Stephens, Defendants.
• Court: U.S. District Court — Northern District of Texas

327 F. Supp. 134

Bruce SEXTON, Plaintiff, v. Bruce GIBBS and Terry Stephens, Defendants.

Civ. A. No. 2-728.

United States District Court, N. D. Texas, Amarillo Division.

May 5, 1970.

COPYRIGHT MATERIAL OMITTED

Harris E. Lofthus, Amarillo, Tex., for plaintiff.

J. Bruce Aycock, City Atty., Amarillo, Tex., for defendants.

MEMORANDUM OPINION

WOODWARD, District Judge.

On the 13th day of April, 1970, the above entitled and numbered cause came on for trial before the Court. Plaintiff and his attorney were present in open Court as were Defendants and their attorneys.

This is a suit brought under Section 1983 of Title 42, United States Code, which provides for civil action for deprivation of rights and reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Those rights which Plaintiff claims that Defendants deprived him of are the right to be free of unreasonable searches and seizures guaranteed by the Fourth Amendment and the right to be free from unlawful arrest guaranteed by the Fifth Amendment. Both rights are extended protection from state action by the Fourteenth Amendment and Section 1983 of Title 42, United States Code.

Plaintiff seeks monetary damages in the amount of $5,000.00 from each Defendant for deprivation of the aforementioned rights. Section 1983 of Title 42, United States Code, authorizes the award of money damages in appropriate cases brought under this section. Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965).

The conduct of the Defendants and the legal consequences thereof will be analyzed as to the two distinct constitutional claims alleged—unlawful arrest and unreasonable search and seizure.

I. THE ARREST

A. Findings of Fact

Although there is some controversy over the details concerning the arrest, the controlling facts are quite simple and as found herein are as follows:

1. About 11:15 p. m. on Thursday, May 29, 1969, Defendants, who were Amarillo city police officers, stopped Plaintiff for running a stop sign at the intersection of 35th and Georgia Streets in the City of Amarillo. After coming to a stop, Plaintiff rolled up his car windows, got out of his car, locked the car doors and got into the police car where one of the officers issued him a traffic ticket. Plaintiff appeared to be nervous and agitated but was cooperative and signed the ticket after he appeared to have read it. Defendants did not take Plaintiff into custody at that time.

2. Plaintiff returned to his car and both cars moved away from their positions during the issuance of the ticket. Plaintiff drove his car to a near-by parking lot where he stopped his car and remained in it.

3. Defendants drove away and continued to patrol their assigned area. During their patrol they returned a short time later to the area where the ticket was issued and noticed that Plaintiff's vehicle was still parked on the lot. Plaintiff was sitting inside sort of slouched over and relatively motionless.

4. Defendant Gibbs approached Plaintiff's automobile to see why he was still parked there. As he did so he noticed a large tool box on the rear floorboard. Officer Gibbs asked Plaintiff what he was doing. Plaintiff replied that he was reading the traffic ticket. The light was very poor for reading.

5. Defendant Gibbs asked Plaintiff to get out of his car which Plaintiff abruptly did, again locking the car door after he had gotten out. At this point Gibbs placed Plaintiff under arrest, handcuffed him and put him in the police car.

6. During the trial of this case Defendants, for the first time, asserted that at the time of the arrest and handcuffing of Plaintiff, that Plaintiff had jumped out of his car abruptly and in an angry manner locked the car door and suddenly turned on Defendant Gibbs with his hand upraised in a threatening manner. He was substantiated to an extent by the testimony of Defendant Stephens, and they gave this as one of the reasons that Plaintiff was handcuffed and arrested.

However, after a careful examination of the pleadings in this case, it is evident that at no time prior to the trial did Defendants assert a defense such as this. The complaint and pre-trial order were each very detailed as to the facts that they observed at the time of the incident, and not once did they mention a threatening gesture. It is not explained why the alleged resistance to arrest, threatening gesture, or threat to the safety of Defendants was not brought up prior to the trial. Such resistance or threats or even threatening gestures could not only be a valid cause for an arrest but the basis for a possible criminal complaint against Plaintiff, and such a complaint was not filed.

If this Court could believe in this case that a gesture was made toward Defendants by Plaintiff in such a manner as to threaten harm or injury to Defendants, this Court would declare this as a valid defense to Plaintiff's complaint.

Not only does it appear that this threatening gesture did not occur in the manner that Defendants now recollect, it is very obvious that Defendants did not attach any significance to any such acts on the part of Plaintiff at the time of the arrest. Although it might be that such actions by the Plaintiff could have influenced their decision to arrest him, it is apparent that it did not influence them and that it was not a factor in the decision to arrest Plaintiff. The Court finds that the threatening conduct testified about at the time of the trial did not occur in the manner described or to a degree that it would become a significant factor at the time of the arrest and of course will not be considered in the legal determinations which follow in this opinion.

Again, it is asserted, that this could be a valid defense because this Court is of the opinion that police officers have a right to be secure in their person and well-being on such occasions, but the prior pleadings in the case do not lead to the belief that any threatening gesture of a significant nature was made by Plaintiff at the time he was arrested and handcuffed.

7. Although the nature of the arrest was never specified and no formal charges were ever filed against Plaintiff, Defendants felt that they were complying with state law and following standard police procedures when they arrested him. There was no intentional or willful abuse of Plaintiff or his Constitutional rights.

8. Plaintiff was not guilty of any felony or breach of the peace and no circumstances existed at that time which would reasonably show that he was about to or had committed some offense against the law, and no probable cause for arrest existed.

B. Conclusions of Law

1. Suits under this Section are a proper method by which to seek redress for violations of an individual's right to be free from unlawful arrest. 42 U.S.C. § 1983. Nesmith v. Alford, 318 F.2d 110, reh. denied, 319 F.2d 859 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964).

2. States may enact statutes setting forth specific circumstances in which arrests may be made without a warrant, but an arrest under such statutes is valid only if the arrest is not violative of the Constitution. Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). Article 14.03 of the Vernon's Ann.Texas Code of Criminal Procedure is such a statute. This Court assumes, without deciding, that said statute is constitutional as written. Despite the use of the word "suspicious" in this statute, it is the rule in this Circuit that a person may not be arrested on suspicion alone, Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S.Ct. 1866, 16 L. Ed.2d 684 (1966), and that a hunch does not constitute probable cause, Lathers v. United States, 396 F.2d 524 (5th Cir. 1968). Article 14.03 of the Texas Code of Criminal Procedure provides for the arrest of a person in suspicious places and under circumstances which reasonably show that the person arrested has been guilty of some felony or breach of the peace, or threatens or is about to commit such an offense. There is no evidence or any reason to believe that in this case such circumstances existed as shown in Findings of Fact 8 above, and therefore the arrest was invalid under Art. 14.03, Texas Code of Criminal Procedure. United States v. Butler, 223 F. Supp. 24, 26 (W.D.Tex.1963).

3. An arrest which is made without a warrant is not violative of the Constitution only if "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 in believing that the person arrested had committed or was committing an offense." Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L. Ed. 2d 110 (1969).

4. The Court recognizes the principle asserted by Defendants that there is a presumption of regularity which supports official acts of public officers, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. But this proposition does not necessarily lead to the conclusion that Defendants urge on the Court —that the burden of proof in this case is on the Plaintiff. The Court of Appeals for the Fifth Circuit has held that once the person...