Appeal from the United States District Court for the Southern District of Indiana - No. 73 90 C IP S. Hugh Dillin, Judge.
Hastie*fn* and Hastings, Senior Circuit Judges, and Fairchild, Circuit Judge.
HASTINGS, Senior Circuit Judge.
This is an appeal from a grant of summary judgment in favor of defendants, state and federal law enforcement officers, in a civil rights action based on 42 U.S.C. § 1983 and the Fourth Amendment, claiming false arrest and imprisonment.
The cause of action arose out of the following events. A package addressed to the plaintiff, Lynn Brubaker, in Muncie, Indiana, with a return address of American Express, Amsterdam, was intercepted by the United States Bureau of Customs in Chicago, Illinois, and found to contain approximately 426 grams of marihuana resin (hashish). Thomas King of the Bureau of Customs coordinated an investigation of the matter with Postal Inspector James D. Bordenet and Narcotics Detective Jack G. Fisher of the Muncie Police Department. The package was transported to Muncie and on February 23, 1972, a notice of attempt to deliver mail was left at the plaintiff's address by Bordenet while the parcel remained at the post office under the surveillance of King. About 45 minutes later plaintiff arrived at the post office, presented a bulky, registered, special delivery letter for mailing to Amsterdam and then presented the notice and claimed the parcel. As he was leaving the post office with the package Brubaker was arrested by Detective Fisher, Officer Larry McCaffrey and Deputy Chief Jack Turner of the Muncie Police Department for violation of the Indiana Dangerous Drug Law for possession of dangerous drugs. Plaintiff was released on bond, was subsequently rearrested on an arrest warrant based on the same charge, and was again released on bond. With respect to each arrest, judges of the Magistrate Court and Superior Court of Delaware County, Indiana, respectively, made findings of probable cause for the arrest of Brubaker. The criminal charges were later dismissed on the motion of the State of Indiana.
In his complaint in the federal district court plaintiff alleged jurisdiction under 28 U.S.C. § 1343 for his cause of action based on 42 U.S.C. § 1983 against King, Bordenet, Fisher, Turner, McCaffrey and the City of Muncie, and under 28 U.S.C. § 1331 for his alternative claim against federal officials King and Bordenet based on the Fourth Amendment. District Judge S. Hugh Dillin dismissed the complaint against the City of Muncie for failure to state a claim upon which relief could be granted since a municipality cannot be held liable under 42 U.S.C. § 1983. Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). That dismissal is not challenged on appeal. The district court, in addition, granted summary judgment in favor of the five individual defendants on the grounds that the state court findings of probable cause were collateral estoppel, or, in the alternative, that the defendants' uncontradicted affidavits were sufficient to find probable cause as a matter of law under both the 42 U.S.C. § 1983 and Fourth Amendment theories of the case. Brubaker appeals from the grant of summary judgment in favor of the defendants. Upon review of the facts and the applicable law we affirm, although on grounds somewhat different than those of the district court.
We turn, first, to what constitutes a defense in a claim against a law enforcement officer based on 42 U.S.C. § 1983 or directly upon the Fourth Amendment so that we might measure the facts presented in this case against the appropriate legal standards. Plaintiff's claim against the three Muncie police officers was based on 42 U.S.C. § 1983. His claim against federal officers King and Bordenet was based on alternative theories. He alleged that either their conduct was under color of state law and therefore actionable under § 1983 because they acted in concert with state officials or that their conduct was independently actionable under the Fourth Amendment and the holding of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), that the Fourth Amendment created a cause of action for money damages. We need not decide whether, under the facts of this case, it was appropriate to proceed against the federal defendants on the § 1983 theory since we are convinced that the standard for what constitutes a defense for a law enforcement officer is identical under § 1983 and the Fourth Amendment.
The Supreme Court has held, Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), and has recently reaffirmed, Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), that the defense of good faith and probable cause is available to police officers in a civil rights action based on § 1983. In Pierson, the Court explained how the two elements of good faith and probable cause were to be applied as a standard: "If the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional." 386 U.S. at 557. The test, thus, under § 1983 is not whether the arrest was constitutional or unconstitutional or whether it was made with or without probable cause, but whether the officer believed in good faith that the arrest was made with probable cause and whether that belief was reasonable.*fn1
It is now clear that an identical standard is to be applied in civil rights claims against federal officials based on the Fourth Amendment. When the Supreme Court held that the Fourth Amendment created a cause of action against federal officials in Bivens, supra, it did not reach the question of whether the officers had the benefit of any immunity or defenses. Upon remand to the Court of Appeals for the Second Circuit these questions were answered in a well reasoned opinion by Judge Medina, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 2 Cir., 456 F.2d 1339 (1972). The court there held that the law enforcement officials were not entitled to immunity where it was alleged that constitutional rights were violated and that, in an action for damages based on the Fourth Amendment, officers were entitled to the same defense of good faith and probable cause found in Pierson, supra, to be available in cases arising under § 1983. Judge Medina reasoned that since the Fourth Amendment cause of action was analogous to one based on § 1983 it was important that the legal standards applied be consistent. The following statement of the standard by Judge Medina was recently adopted by our court in Tritsis v. Backer, 7 Cir., 501 F.2d 1021 (1974):
To prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 2 Cir., 456 F.2d 1339, 1348 (1972).
As Circuit Judge Lumbard emphasized in his concurrence in Bivens, the reasonable man standard to be applied in tort actions against governmental agents is less stringent than the definition of probable cause applied in criminal proceedings. Judge Lumbard wrote:
This second and lesser standard is appropriate because, in many cases, federal officers cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves. It would be contrary to the public interest if federal officers were held to a probable cause standard as in many cases they would fail to act for fear of guessing wrong. Bivens, supra, 456 F.2d at 1349 (Lumbard, J., concurring).
We conclude, therefore, that it is a defense to an action for damages under § 1983 or the Fourth Amendment for a law enforcement officer to prove that he acted in good faith with a ...