Tucker v. Firks, Civ. No. F 88-295.

• Decision Date: 29 September 1989
• Docket Number: Civ. No. F 88-295.
• Citation: 731 F. Supp. 1355
• Parties: Gwendolyn TUCKER, Plaintiff, v. Ronald FIRKS and Len Hutson, Defendants.
• Court: U.S. District Court — Northern District of Indiana

731 F. Supp. 1355

Gwendolyn TUCKER, Plaintiff, v. Ronald FIRKS and Len Hutson, Defendants.

Civ. No. F 88-295.

United States District Court, N.D. Indiana, Fort Wayne Division.

September 29, 1989.

Thomas D. Decker, Thomas D. Decker & Associates, Chicago, Ill., for plaintiff.

Phillip A. Renz, Miller, Carson & Boxberger, J. Timothy McCaulay, Helmke, Beams, Boyer & Wagner, Fort Wayne, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants' motion for summary judgment. The parties have fully briefed the issues. For the following reasons, the motion for summary judgment will be denied.

This cause arises out of the arrest of the plaintiff, Gwendolyn Tucker, for felony theft on October 8, 1986. The charges were subsequently dismissed because the only eyewitness refused to testify. Shortly thereafter, Tucker brought suit against Officers Ronald Firks and Len Hutson of the Fort Wayne Police Department, alleging that the officers arrested her without probable cause to believe she had committed a crime. Tucker is seeking compensatory and punitive damages under 42 U.S.C. § 1983 for violation of her Fourth and Fourteenth Amendment rights.

In response, the defendants claim that qualified immunity shields them from liability for civil damages. As the defendants have noted, the Supreme Court has recognized that state officials are entitled to qualified immunity if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This qualified immunity is available to police officers acting in their official capacities. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

The issue of qualified immunity is a question of law for the court. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985). Furthermore, the test for determining qualified immunity is an objective one. Id. 457 U.S. at 819, 102 S.Ct. at 2738-39. If, under the Harlow objective standard, a reasonable police officer could have believed that there was probable cause to arrest Tucker, then the defendants would be entitled to qualified immunity which would support a grant of summary judgment in their favor. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This court, however, finds that the defendants are not entitled to qualified immunity.

In any case, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. 106 S.Ct. at 2512.

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which demonstrate the absence of a genuine issue of material fact. Celotex, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S.Ct. at 2511.

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512. This court, however, takes note of the fact that § 1983 claims presenting the question of probable cause are generally inappropriate for disposition on summary judgment. Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir.1989).

With the qualified immunity and summary judgment review standards set forth, this court now turns to the resolution of the central issue in this case, whether a reasonable police officer could have believed he had probable cause to arrest Tucker for felony theft.

The term "probable cause" is not susceptible to a precise definition. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Probable cause exists where the "facts and circumstances are `sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Generally speaking, its existence "depends upon the officer's own knowledge and the knowledge received from others which is reasonably trustworthy." United States v. Gaston, 620 F.2d 635, 638 (7th Cir.1980) (emphasis supplied). See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See also United States v. Jones, 696 F.2d 479, 485, 485 n. 6 (7th Cir.1982).

Indiana follows the definition stated above of probable cause. Fyock v. State, 436 N.E.2d 1089, 1093 (Ind.1982); Battle v. State, 275 Ind. 70, 415 N.E.2d 39 (Ind.1981); Strosnider v. State, 422 N.E.2d 1325 (Ind.App.1981). Further, Indiana also follows the rule that probable cause is "determined upon the basis of the collective information known to the law enforcement organization." Brown v. State, 442 N.E.2d 1109 (Ind. 1982). See also Suggs v. State, 428 N.E.2d 226 (Ind.1981); Owens v. State, 427 N.E.2d 880 (Ind.1981); Benton v. State, 273 Ind. 34, 401 N.E.2d 697 (1980).

Roberts v. Hochstetler, 592 F.Supp. 703, 707 (N.D.Ind.1983).

In discussing the standard for resolution of probable cause issues, the Seventh Circuit has stated

It is true that the issue of probable cause ordinarily is for the judge rather than the jury. That is because the issue usually arises in the context of a motion to suppress evidence, which the judge decides. But where the issue arises in a damage suit, it is, as the panel opinion acknowledged, a proper issue for the jury if there is room for a difference of opinion. See Llaguno v. Mingey, 739 F.2d 1186 at 1190 (7th Cir.1984); Hindman v. City of Paris, 746 F.2d 1063, 1067 (5th Cir.1984); Garris v. Rowland, 678 F.2d 1264, 1270 (5th Cir.1982); Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.1970); cf. Banish v. Locks, 414 F.2d 638, 641 (7th Cir.1969). The underlying issue in deciding whether the police had probable cause to do what they did is reasonableness, which is also the underlying issue in deciding negligence — a classic jury issue.

Probable cause means, in fact, a reasonable basis — "more than bare suspicion, but less than virtual certainty," United States v. Garza-Hernandez, 623 F.2d 496, 499 (7th Cir.1980); see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 226, 13 L.Ed.2d 142 (1964); Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 J.L.Reform 465, 478-512 (1984) — for believing that a search or seizure will be fruitful — will turn up evidence, or leads to evidence, or contraband, or the perpetrator of the crime.

Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985).

When confronted with an issue of probable cause in a summary judgment motion based on qualified immunity, the court must consider all the undisputed facts in the record. Whitt v. Smith, 832 F.2d 451, 454 (7th Cir.1987); Green v. Carlson, 826 F.2d 647, 651 (7th Cir.1987). Also, the court must accept as true the non-moving party's evidence. Anderson, 106 S.Ct. at 2511. Upon reviewing the record in the present case, this court determines the relevant facts to be as follows.

On October 2, 1986, at approximately 2:30 p.m., Byron Buchanan entered the northwest branch of the Lincoln National Bank and proceeded directly to the office of Larry Smith, the Branch Manager. Buchanan claimed to have a bomb and a gun in a bag he carried and threatened to blow Smith's head off if he didn't follow Buchanan's instructions. Buchanan then stated that he wanted one...