Trejo v. Perez

• Citation: 693 F.2d 482
• Decision Date: 13 December 1982
• Docket Number: No. 81-2353,81-2353
• Parties: Eduardo TREJO, Plaintiff-Appellee, v. Ivan PEREZ, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 482

693 F.2d 482

Eduardo TREJO, Plaintiff-Appellee, v. Ivan PEREZ, Defendant-Appellant.

No. 81-2353

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 1982.

Anthony C. McGettrick, Asst. City Atty., Laredo, Tex., for defendant-appellant.

Sharon Trigo, Laredo, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Ivan Perez, a police officer employed by the City of Laredo, Texas, appeals from a final judgment awarding money damages upon jury verdicts in a suit for false arrest brought by Eduardo Trejo under 42 U.S.C. Sec. 1983. Perez argues that the trial court erred in not allowing the jury to find that he had probable cause to arrest Trejo for violating the Texas "Stop and Identify" statute, Tex. Penal Code Ann. Sec. 38.02, and in not submitting his affirmative defense of good faith. Agreeing with Perez's first contention, we reverse and remand.

Early on the morning of January 23, 1979, Perez and a fellow officer arrived in separate patrol cars at 1103 Price Street in response to a request to investigate a family disturbance. Perez testified that when he arrived, he saw a parked car with a man standing by the driver's seat and a woman standing to the rear of the car. While the other officer, who had arrived simultaneously, approached the woman, Perez approached the man, who turned out to be Eduardo Trejo.

Perez testified that he asked Trejo what the problem was and Trejo replied, "There is not a fucking thing here. There is no problem." Perez by his account then asked, "Do you have any identification with you?" Trejo replied, "I don't have a fucking thing. I don't have shit," ¹ and continued to use vulgar language. He said, "We don't need you for a fucking thing here." At that point, Perez placed him under arrest.

After a struggle and with some help from the other officer, Perez took Trejo to his patrol car. There he told him that he was being arrested for disorderly conduct. Trejo was taken to the police station, booked, and taken to Webb County Jail. ²

This suit, under 42 U.S.C. Sec. 1983 against Perez, the Chief of Police of Laredo and the Mayor of Laredo for deprivation of civil rights, soon followed. Trejo alleged that Perez had arrested him without probable cause. The jury trial was held in two phases, the first phase inquiring into Perez's liability and the second inquiring into the liability of the other parties.

At the first trial, the district court denied Perez's request for an instruction that would allow the jury to find he had probable cause to arrest Trejo for violation of the Texas "Stop and Identify" statute, Tex. Penal Code Ann. Sec. 38.02. First, the trial judge reasoned that because the statute was unconstitutional as applied to this case, it could not be a defense to an action for false arrest under 42 U.S.C. Sec. 1983. Second, he noted that the offense was not the basis of the arrest. The jury found that Perez arrested Trejo without probable cause to believe that he had committed the offense of disorderly conduct and awarded damages of $2,000.

After the verdict and during the second phase of the trial, the trial court refused to allow Perez's claimed good faith "defense" on the grounds that while pleaded, no objection to its omission from the charge was made. At the end of the second trial, a directed verdict was granted in favor of the Mayor and the Chief of Police.

Stop and Identify

Tex. Penal Code Ann. Sec. 38.02 provides that "A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information."

Perez was arrested in January 1979, six months before the Supreme Court decided Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), in which it reversed a conviction for violating Sec. 38.02 on the grounds that the arresting officers lacked reasonable suspicion to make the initial stop. The statute was not held unconstitutional on its face until two years later. Spring v. Caldwell, 516 F.Supp. 1223 (S.D.Tex.1981), rev'd on other grounds, 692 F.2d 994 (5th Cir.1982). Thus, the unconstitutionality of the failure to identify statute was not clearly established at the time of Trejo's arrest. ³

The Uncertainty of the Law

The law of immunity for executive officials has recently been redefined by the Supreme Court in Harlow v. Fitzgerald, --- U.S. ----, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court there clipped the subjective prong of the two-pronged inquiry previously followed. ⁴ The measure of official conduct is now said to be objective. That is, the inquiry is what a reasonable officer knew or should have known. The Court effectively created a two level progressive inquiry:

(1) Was the law clearly established at the time? If the answer to this threshold question is no, the official is immune.

(2) If the answer is yes, the immunity defense ordinarily should fail unless the official claims extraordinary circumstances and can prove that he neither knew nor should have known that his acts invaded settled legal rights. ⁵

Apart from the deletion of the subjective component, the first inquiry tracks the established principle that an officer is "excus[ed] ... from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). It follows that because it was not settled when the arrest was made that the failure to identify statute was unconstitutional, the trial court should not for that reason have declined to allow the jury to consider whether there was probable cause to arrest for its violation.

Basis of the Arrest

Perez did not charge Trejo with violating Sec. 38.02. As his own testimony made clear, Perez arrested Trejo for disorderly conduct. While it does not appear that Perez had failure to identify in mind when he made the arrest, it does not necessarily follow, however, that he could not justify its legality by reliance upon Sec. 38.02. " '[W]hen a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest.' " United States v. Atkinson, 450 F.2d 835, 838 (5th Cir.1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972) (quoting Mills v. Wainwright, 415 F.2d 787 (5th Cir.1969)). In Atkinson the court held that the validity of an arrest on a charge of false pretenses of a man who, using a fictitious name, had run up a sizable bill at a motel and had displayed improper license tags on his car could be sustained by a finding of probable cause to believe that the defendant had committed the misdemeanor of maintaining improper tags.

We turn to whether the charged offense of disorderly conduct and the charge of failure to identify were "related" within the meaning of Atkinson and to the fit between Atkinson's nexus and Harlow's test of objectivity. While it did not define the term "related," the Atkinson court warned that it would not "indulge in ex post facto extrapolations of all crimes that might have been charged on a given set of facts at the moment of arrest, nor [would it] look favorably upon arguments of the government doing the same. Such an exercise might permit an arrest that was a sham or fraud at the outset, really unrelated to the crime for which probable cause to arrest was actually present to be retroactively validated." Id. at 838. At the same time, we stated that we would not "force police officers to routinely charge every citizen taken into custody with every offense they thought he could be held for in order to increase the chances that at least one charge would survive the test for probable cause." Id.

Under Atkinson, charging an offense is not a prerequisite to its use in justification of a warrantless arrest. Indeed, the burden of the Atkinson opinion is to allow freedom of charge choice without opening the door to the "extrapolation" of offenses in an effort to justify a sham arrest. Atkinson would accomplish that task by its requirement that there be a nexus between the charged offense and the offense later used to support probable cause, a standard it left for case law development. Pointedly missing from the nexus test is any suggestion that an arresting officer must have in mind at the time of the arrest any offense later used to justify the arrest. That is, Atkinson did not require that the arresting officer have subjective awareness of any justifying charge when making the arrest. Instead, the Atkinson panel, while leaving its articulation for the future, opted for an objective standard for avoiding after the fact extrapolation. In doing so, it effectively anticipated Harlow's avoidance of subjective inquiry, thereby allowing congruent readings and a single inquiry to the tests of legality: whether a reasonable police officer would have had probable cause to believe an offense was being committed in his presence.

Given Harlow, we think this reading of Atkinson provides a workable legal standard. It obviates the need for a delicate subjective inquiry, likely to turn on little more than self-serving statements and speculation. Such an inquiry would offer little additional resistance to the risk of extrapolated offenses. It follows that Atkinson's teaching is best vindicated by asking only whether the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated reasonable officer, also have served as the basis for a charge for which there was probable cause. This reading is consistent with United States v. Hathorn, 451 F.2d 1337, 1341 (5th Cir.1971) (per curiam opinion ...