Street v. Surdyka

• Decision Date: 21 February 1974
• Docket Number: No. 73-1843.,73-1843.
• Citation: 492 F.2d 368
• Parties: George B. STREET, Appellant, v. Officer Leo SURDYKA, Baltimore City Police Department, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

492 F.2d 368 (1974)

George B. STREET, Appellant, v. Officer Leo SURDYKA, Baltimore City Police Department, et al., Appellees.

No. 73-1843.

United States Court of Appeals, Fourth Circuit.

Argued November 6, 1973.

Decided February 21, 1974.

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Alexander R. Martick, Baltimore, Md., for appellant.

Robert C. Verderaime, Baltimore, Md., (Verderaime & DuBois, Baltimore, Md., on brief) for appellees.

Before CRAVEN, RUSSELL and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

In the district court George B. Street sought to recover damages from a Baltimore police officer and two police cadets, alleging that they arrested him in violation of the fourth amendment. Plaintiff brought his claim under 42 U. S.C. § 1983 by analogy to the common law tort of false arrest.

While off duty on December 17, 1967, the police cadets, Andrews and Ullah, were in an automobile that nearly collided with Street's taxi in a Baltimore intersection. Street then stopped abruptly to pick up a passenger, and the cadets decided to see what was wrong and inquire if assistance was needed. When Street saw the two men approaching his cab, he pulled away from the curb and almost struck cadet Andrews. The cadets returned to their car and followed him. Andrews approached the cab once more when it stopped at a traffic light, but Street again drove away. Finally the cadets hailed Officer Surdyka's patrol car. Cadet Ullah reported the incident, and Officer Surdyka arrested Street. At the station house Officer Surdyka started to write a charge of attempted assault with a motor vehicle, but the desk sergeant objected, suggesting a charge of disorderly conduct instead. This difficulty over the charge recurred ten days later at Street's trial in Baltimore municipal court. Upon finding no evidence of disorderly conduct, the judge suggested a charge of "assault by attempting to strike with a motor vehicle." The charge was changed and Street was acquitted. Over two years later, Street filed this suit against Andrews, Ullah, and Officer Surdyka. The district judge entered summary judgment for the cadets, and a jury returned a verdict for Officer Surdyka. Plaintiff appealed both adverse judgments. We affirm.

JURY VERDICT

In his attack on the jury verdict, Street objects to the jury instructions on Maryland law. He contends the arrest was illegal because Maryland law prohibits warrantless arrests for misdemeanors committed outside the arresting officer's presence. Under this theory of the case, Street argues that the trial judge should have directed a verdict in his favor because Officer Surdyka had him booked for disorderly conduct, a misdemeanor under Maryland law. He also disagrees with the court's instruction that attempting to strike someone with an automobile could constitute a felony in Maryland. We do not reach these questions because we decline to tie section 1983 to the technicalities of state law.

Maryland, like many other states, follows the common law rules on warrantless arrest. An officer needs no warrant to make an arrest if he has probable cause to believe a felony has been committed, but probable cause is not enough to authorize warrantless arrest for a misdemeanor. The misdemeanor must also have been committed in the officer's presence. Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968). If Officer Surdyka violated this Maryland law, he may be liable to plaintiff in an action under the common law of false arrest or false imprisonment.¹ But section 1983 does not provide a remedy for common law torts. Instead it creates a federal cause of action against those acting under color of state law who cause a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." 42 U.S.C. § 1983. In many cases the same conduct will violate both state law and the federal Constitution, but certainly not all violations of state law rise to the level of constitutional tort. See Ouzts v. Maryland National Insurance Co., 470 F.2d 790 (9th Cir. 1972); cf. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 907, 13 L. Ed.2d 811 (1965), this court considered the relationship of arrest law to the Constitution. A state prisoner argued that his confession should be inadmissible because it resulted from a possibly illegal arrest for "investigation" in the District of Columbia. Affirming a denial of habeas corpus, the court said:

There is significant distinction between police action which is unlawful because violative of constitutional provisions and police action which merely fails to accord with statute, rule or some other nonconstitutional mandate. The protection against arrest without probable cause, as well as that against unreasonable searches and seizures, stems directly from the Fourth Amendment. There is no such constitutional prohibition against arrests for investigation where probable cause exists. Certainly not every official impropriety gives rise to a finding that due process has been denied.

Id. at 136. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Supreme Court construed the reach of the "under color of law" formula that appears in section 1983 and the criminal statute now codified as 18 U.S.C. § 242. Justice Douglas wrote:

But there is no warrant for treating the question in state law terms. The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under "color of any law."

Id. at 108, 65 S.Ct. at 1038. We believe this statement is equally applicable to plaintiff's attempt to use Maryland law in this case. Even if Officer Surdyka violated Maryland arrest law, he cannot be liable under section 1983 unless he also violated the federal constitutional law governing warrantless arrests.

The constitutional restrictions on arrest are derived from the fourth amendment's prohibition of unreasonable seizures. Because the Supreme Court has interpreted the fourth amendment in light of the law that existed when the Bill of Rights was adopted, see, e. g., Carroll v. United States, 267 U.S. 132, 149-151, 45 S.Ct. 280, 69 L.Ed. 543 (1925), it might be argued that the fourth amendment incorporates the common law's restrictions on warrantless arrests for misdemeanors. But the Supreme Court has never given constitutional force to this element of the common law rule.² In Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), the Court applied the common law rule but hinted that its restrictions could be relaxed by statute. Subsequent cases have focused entirely on the requirement of probable cause. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).³ We do not think the fourth amendment should now be interpreted to prohibit warrantless arrests for misdemeanors committed outside an officer's presence. The difference between felonies and misdemeanors is no longer as significant as it was at common law. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925).⁴ Maryland courts have criticized the continued use of the common law rule as impractical and illogical, and have invited the state legislature to adopt new rules. Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968).⁵ Classifications based on other criteria could be both rational and practical. For example, Congress has authorized warrantless arrests upon probable cause for any violation of the federal laws pertaining to narcotics or marihuana. 26 U.S.C. § 7607.⁶ We are most reluctant to adopt a constitutional interpretation that would impede reform in this area. The fourth amendment protects individuals from unfounded arrests by requiring reasonable grounds to believe a crime has been committed. The states are free to impose greater restrictions on arrests, but their citizens do not thereby acquire a greater federal right.⁷ Accordingly, there is no cause of action for "false arrest" under section 1983 unless the arresting officer lacked probable cause.

In this case the trial judge instructed the jury that Officer Surdyka would have violated plaintiff's constitutional rights if he lacked "probable cause to believe that a misdemeanor was being committed in his presence or that a felony had been committed." Although this instruction erroneously gave Street the benefit of the common law restriction on misdemeanor arrests, he cannot complain of an error that operated in his favor.

Plaintiff also objects to the admission of evidence tending to show that Officer Surdyka had grounds to believe that Street had attempted to strike Andrews with a motor vehicle. Street contends that since he was charged with disorderly conduct the court should not have considered another basis for arrest. Our decision on the main issue disposes of this argument as well, since the specific charge against Street would have significance only if we pegged his constitutional rights to the misdemeanor arrest rule. Cf. Lawton v. Dacey, 352 F.2d 61 (1st Cir. 1965).

Finally, plaintiff insists that the judge erred in instructing the jury that "mere negligence" could not sustain the civil rights claim, and requiring instead a finding that Officer Surdyka acted "intentionally or with reckless, gross, and culpable negligence." (Emphasis added). We disagree. In Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), we held that "gross and culpable negligence" could support a section 1983 action against a policeman who recklessly wounded the plaintiff, but we took pains to note that the plaintiff's claim did not involve "simple negligence or inadvertence." Id. at 1232. The instruction given in this case was thus substantially in line with the language of Jenkins.

Here, however, the instruction went beyond our ...