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Boscarino v. Nelson

decided: July 14, 1975.


Appeal from the United States District Court for the Eastern District of Wisconsin No. 71 C 531 MYRON L. GORDON, Judge.

Fairchild, Chief Judge, Cummings and Sprecher, Circuit Judges. Fairchild, Chief Judge, concurring.

Author: Per Curiam

Pursuant to 42 U.S.C. §§ 1983 and 1985(2) and (3), plaintiff sued a detective*fn1 of the Police Department of the City of Milwaukee, Wisconsin, alleging that the defendant had "caused plaintiff to suffer arrest, search, seizure and imprisonment without probable cause or due process or equal protection of law." Two hundred fifty thousand dollars in actual and a like amount in punitive damages were sought.

At 10:00 a.m. on April 27, 1970, defendant was driving his car while off duty and accompanied by his wife and a friend. He observed plaintiff walking along East Oklahoma Avenue in Milwaukee. Defendant was aware of plaintiff's personality, criminal record, character and method of operation. He had arrested plaintiff on prior occasions for "case-knife burglaries" of older apartment houses. In those arrests, defendant had found a pocket or kitchen knife or putty knife on plaintiff's person.

Defendant watched plaintiff proceed to an apartment building at 1933 East Oklahoma Avenue. Plaintiff looked inside the front door of that relatively new apartment building for a minute and then left. He proceeded to the rear of an older apartment building at 1802 East Oklahoma Avenue. Defendant then asked his wife to go home to obtain his service revolver because he knew that three weeks before plaintiff had been placed on probation with a proviso that would place him in the state penitentiary for 40 years for any violation of probation, and defendant suspected that plaintiff might resist arrest.

While plaintiff was at the rear of the building at 1802 East Oklahoma Avenue, remaining there for ten to fifteen minutes, defendant's wife picked up his service revolver and returned to the scene. Defendant observed plaintiff leave the rear of the building and stopped him. After exchanging greetings, defendant told plaintiff that he was up to his "old tricks" in that defendant saw him in back of the building at 1933 East Oklahoma for ten to fifteen minutes. Plaintiff was then placed under arrest for burglary and searched. Defendant found a case-knife, standing blade up, in plaintiff's pocket, and shortly afterwards observed a putty knife in the grass where plaintiff had been standing when arrested. In addition to burglary, plaintiff was later charged with possession of burglarious tools and with carrying a concealed weapon. A misdemeanor court convicted plaintiff of carrying a concealed weapon, but the state circuit court reversed. The circuit court found no probable cause for the arrest and therefore ruled that the search and the resultant seizure of plaintiff's knife were illegal.

At the close of the trial of the Section 1983 action, the district court dismissed plaintiff's action, holding under Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2nd Cir. 1972), that defendant had met the requisite two-pronged standard of good faith and reasonable belief in the validity of the arrest, even though there was not probable cause in the constitutional sense to make the arrest. However, on a motion for reconsideration, the court overturned its initial ruling on the ground that Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968), required defendant not only to show good faith but also probable cause in the constitutional sense. Pursuant to a stipulation, plaintiff was awarded special damages of $1,263.20 but the court declined his request for general compensatory or punitive damages. Subsequent to the decision below, this Court decided two cases, Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974), and Brubaker v. King, 505 F.2d 534 (7th Cir. 1974), which require us to reverse on the ground that since, as found below, defendant acted both reasonably and in good faith, he established his defense to this action.

Plaintiff relies primarily on Joseph v. Rowlen, supra. There the defendant city police officer had arrested plaintiff for soliciting from house to house even though the defendant admitted that this city ordinance did not cover plaintiff's conduct. We noted that "defense counsel has not suggested any offense Joseph might have committed for which this information would supply probable cause" 402 F.2d at 369. We reversed the district court because it had erroneously held that false imprisonment does not give rise to a cause of action under 42 U.S.C. § 1983 "unless such imprisonment is in pursuit of a systematic policy of discrimination against a class or group of persons." Idem. The Court went on to state:

"Although the Supreme Court refers in Pierson [v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213] to 'the defense of good faith and probable cause,' available to a police officer under sec. 1983, there is no suggestion that a police officer is entitled to a defense of good faith when he makes an arrest without a warrant and without probable cause.

"We conclude that under 42 U.S.C. sec. 1983, where a police officer makes an arrest which is unlawful under the federal constitution because made without a warrant and without probable cause to believe that the person arrested had committed or was committing an offense, sec. 1983 imposes on the officer a liability which is recoverable in federal court. Additional circumstances coloring the officer's action as flagrant or malevolent are not required." (Footnote omitted; 402 F.2d at 370.)

Since the reversal in Rowlens could have been made without discussion of the availability of a good faith defense, one could label the quoted statement as dicta. Another approach to narrowing the apparently broad sweep of the quoted language, that taken by this Court in Brubaker v. King, supra,*fn2 is to rely on the clear lack of a reasonable belief by Rowlen in the validity of the arrest. Whatever the approach, it is clear from our decisions rendered subsequent to Rowlen and after the district court's opinion in the present case that the Bivens test governs Section 1983 cases against law enforcement officers in this Circuit.

In Tritsis v. Backer, supra, this Court expressly followed the Second Circuit's holding in Bivens that if a police officer could show that he acted in good faith and with a reasonable belief in the validity of the arrest and search, he would have a valid defense to a suit for damages like this one. In Tritsis we quoted with approval Judge Medina's Bivens statement:

"'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 ...

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