Vargas-Badillo v. Diaz-Torres

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1895

LUIS VARGAS-BADILLO,

Plaintiff - Appellant,

v.

ANDRES DIAZ-TORRES, ET AL.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dom nguez, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Peter John Porrata, with whom Law Offices of Peter John

Porrata was on brief for appellant.

Sylvia Roger-Stefani, Assistant Solicitor General,

Department of Justice, with whom Carlos Lugo-Fiol, Solicitor

General and Edda Serrano-Blasini, Deputy Solicitor General, were

on brief for appellees.

May 30, 1997

TORRUELLA, Chief Judge. Luis Vargas-Badillo ("Vargas") TORRUELLA, Chief Judge.

brought this damages suit under 42 U.S.C. 1983, claiming that

he was illegally arrested and subjected to excessive force by the

defendants, two Puerto Rico police officers.1 The district court

found that the defendants were entitled to qualified immunity on

the unlawful arrest claim, and granted their motion for summary

judgment. The court also determined that Vargas failed to state

a proper claim of excessive force. Vargas appeals on the

unlawful arrest claim, arguing that there was no probable cause

to support his warrantless arrest.2 We affirm.

BACKGROUND BACKGROUND

In the summary judgment context, we review all material

facts in genuine dispute in the light most favorable to the non-

movant, here Vargas. Serrano-Cruz v. DFI Puerto Rico, 109 F.3d

23, 24 (1st Cir. 1997). Vargas was one of three men who were in

a Puerto Rico Aqueducts and Sewers Administration truck that

collided with a car driven by Minerva Delgado-Gonz lez

("Delgado"). After the collision, which took place at night on a

hilly road, Vargas, Delgado, and Vargas' two colleagues agreed to

meet at a nearby police station to report the accident.

1 Vargas initially named as defendants an unnamed supervisor and

Ismael Betancourt, the superintendent of the Puerto Rico Police

Department. The actions against these two other defendants were

dismissed through partial judgments, at which point the remaining

defendant officers filed their summary judgment motion.

2 On appeal, Vargas does not challenge the district court's

determination regarding his failure to state a cognizable

excessive force claim.

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At the police station, the defendant police officers,

Andr s D az-Torres and Andr s Maldonado-Castro, questioned the

four persons. Delgado told the officers that Vargas was the

driver of the truck -- a fact that Vargas disputes -- and that

she thought that he and the other men smelled of alcohol. She

also stated that the men had shiny eyes and staggered a bit.

When the officers sought out Vargas for further

questioning, he was outside the police station, drinking

something from a plastic cup. After the officers asked to speak

with him, he threw down his cup, entered the station, and began

smoking a cigarette. When the officers ordered him to put out

the cigarette, Vargas stubbed it out with his shoe on the floor

of the police station. Officer D az then told Vargas to dispose

of the cigarette in a trash can. Vargas denies being rude or

aggressive toward the officers, although he does not deny having

taken these particular actions.

Immediately thereafter, the police officers placed

Vargas under arrest for driving under the influence of alcohol,

under Section 5-801 of the Puerto Rico Vehicle and Traffic Law.

P.R. Laws Ann. tit. 9, 1041 et seq. They handcuffed and

searched him before transporting him to a police station that had

a working breathalyzer. After the breathalyzer test indicated a

blood alcohol level of zero percent, Vargas was released. Vargas

was subsequently charged on a count of reckless driving based on

the same incident -- a criminal charge which was dropped once

Vargas' insureragreed to payfor the damagescaused by theaccident.

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The district court granted summary judgment on the

basis of qualified immunity. In so holding, it made two

findings: that the defendants were presented with sufficient

evidence to establish probable cause for Vargas' arrest, and that

although the particular warrantless arrest violated a Puerto Rico

statute, it did not violate any clearly established federal law.

DISCUSSION DISCUSSION

We review the district court's summary judgment

determination de novo. Ionics, Inc. v. Elmwood Sensors, Inc.,

110 F.3d 184, 185 (1st Cir. 1997).

A. The Qualified Immunity Standard A. The Qualified Immunity Standard

The doctrine of qualified immunity provides that

"government officials performing discretionary functions . . .

are shielded from liability for civil damages insofar as 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 (1982).

Defendant police officers are shielded if either of the following

holds: if the federal law allegedly violated was not clearly

established at the time of the alleged violation, or if, at

summary judgment, there is no genuine dispute of material fact

that would prevent a finding that the defendants' actions, with

regard to applying or following such clearly established law,

were objectively reasonable. See Stella v. Kelley, 63 F.3d 71,

73 (1st Cir. 1995). In effect, qualified immunity protects "all

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but the plainly incompetent or those who knowingly violate the

law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

This appeal presents two distinct legal issues. First,

we must determine whether the warrantless arrest of a suspected

misdemeanant, where the misdemeanor did not occur in the

officers' presence, would have violated clearly established

federal law as of December 1990. Second, we must determine

whether the officers acted in conformity with clearly established

law under an objective reasonableness standard.

B. The Clearly Established Law B. The Clearly Established Law

It is not disputed that at the time of Vargas' arrest,

clearly established Fourth Amendment law required that the

defendants have probable cause to support Vargas' warrantless

arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964). Whether there

were adequate grounds for making a probable cause determination

is addressed in the next section. However, Vargas also appears

to contend that the officers violated a rule prohibiting

warrantless arrests for misdemeanors that do not occur in the

presence of the arresting officers. We must thus determine

whether such a rule was a clearly established part of federal law

in December 1990, when Vargas' arrest occurred.

Vargas correctly points out that in Puerto Rico, such a

rule exists. Rule 11 of the Puerto Rico Rules of Criminal

Procedure provides that a warrantless arrest for a misdemeanor

offense is only permitted where the arresting officer has grounds

to believe that the misdemeanor was committed in his presence,

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whereas no such presence requirement governs the warrantless

arrest of felons. See P.R. Laws Ann. tit. 34, App. II, R. 11

(1991). Driving under the influence of alcohol is a misdemeanor

in Puerto Rico. See P.R. Laws Ann. tit. 9, 1042 (1976).

Regardless of whether the arresting officers violated Rule 11,

Vargas can offer no support for the proposition that, as of

December 1990, this provision had a clear basis in federal

constitutional or statutory law. "Mere violations of state law

do not, of course, create constitutional claims." Roy v. City of

Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983).

To date, neither the Supreme Court nor this circuit

ever has held that the Fourth Amendment prohibits warrantless

arrests for misdemeanors not committed in the presence of

arresting officers. Into this silent past, a "clearly

established right" cannot be retrojected. Moreover, cases from

sister circuits addressing this very issue have arrived at the

opposite conclusion. See, e.g., Pyles v. Raisor, 60 F.3d 1211,

1215 (6th Cir. 1995) (arrestee cannot recover under section 1983

on ground that officers violated state law prohibition of

warrantless arrests for misdemeanors not committed in officers'

presence); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990)

(same); Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir. 1974)

(same); see also Vargas-Badillo v. D az-Torres, Opinion and

Order of May 24, 1996, at 12-17 (D.P.R. 1996) (providing an

illuminating discussion of the questionable constitutional status

of this longstanding rule). Thus, we conclude that the only

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clearly established federal right implicated in Vargas'

warrantless arrest in December 1990 was his Fourth Amendment

right not to be arrested without probable cause.

C. Objective Reasonableness and Probable Cause C. Objective Reasonableness and Probable Cause

We next assess whether the second part of the qualified

immunity standard, requiring that the officers acted in an

objectively reasonable fashion in light of clearly established

law, was met. Here, that assessment turns on the officers'

determination of probable cause.

In cases applying this [qualified

immunity] standard to police arrests in

this circuit, an arrest challenged as

unsupported by probable cause is deemed

"'objectively reasonable'" unless "there

clearly was no probable cause at the time

the arrest was made."

Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (quoting Floyd

v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)). In the instant case,

the evidence giving rise to probable cause to believe Vargas

drove under the influence of alcohol was far from substantial --

and yet we cannot say that there clearly was no probable cause

from the point of view of reasonable persons standing in these

police officers' shoes. See Farrell, 765 F.2d at 5 ("Despite a

finding of no probable cause at a later hearing, a police officer

should not be found liable under 1983 for a warrantless arrest

because the presence of probable cause was merely questionable at

the time of arrest."); Briggs v. Malley, 748 F.2d 715, 719 (1st

Cir. 1984).

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The Fourth Amendment requirement of probable cause to

perform a warrantless arrest turns on "whether at that moment the

facts and circumstances within [the officers'] knowledge and of

which they had reasonably trustworthy information were sufficient

to warrant a prudent man in believing that the petitioner had

committed or was committing an offense." Beck, 379 U.S. at 91;

see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.

1987) (quoting Beck). Here, the following undisputed facts

could, at the very least, have led reasonable police officers to

believe that they were obeying the probable cause requirement in

proceeding to arrest Vargas for driving under the influence of

alcohol. The officers were informed by Delgado, whether

correctly or incorrectly, that Vargas was the driver of the

truck. Delgado also informed the defendants that Vargas and the

other men smelled of alcohol and had glassy eyes. Reasonable

police officers could further believe that Vargas' actions

suggested insolence, and were thus the kind of actions that

correlate with drunkenness.

It is worth emphasizing that in the qualified immunity

context, we need not adjudge whether these facts were legally

sufficient grounds for this warrantless arrest.3 We only

conclude that the undisputed facts in this case preclude a

3 The evidence suggesting that an arrest was necessary was

frankly not very strong in this case. We are concerned, for

example, that in light of Vargas' cooperation with the police and

voluntary decision to report to the police station, the police so

quickly chose the option of arrest and handcuffing, rather than

some less severe means to the end of giving him a breathalyzer

test.

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finding that there was clearly no probable cause, or that "no

reasonably competent officer would have found probable cause."

Prokey v. Watkins, 942 F.2d 67, 72 n.4 (1st Cir. 1991). The

reports and observations suggesting that Vargas had been driving

while intoxicated were sufficient to satisfy the rule in this

circuit that questionable calls on matters of probable cause,

such as the one in this case, are protected through the doctrine

of qualified immunity. Cf. Rivera v. Murphy, 979 F.2d 259, 263-

64 (1st Cir. 1992) (denying qualified immunity where arresting

officer provided "no facts to support his legal conclusion that

he had probable cause"). This kind of discretionary judgment

call, made routinely by peace officers, must be protected from

the chilling effect of personal liability. Our binding

precedents addressing qualified immunity strike the difficult

balance between chilling effective law enforcement and protecting

individual liberties by reviewing allegedly unlawful warrantless

arrests to determine whether there was clearly no probable cause,

and we follow these precedents today. See, e.g., Topp, 994 F.2d

at 48.

CONCLUSION CONCLUSION

For the foregoing reasons, the district court's grant

of summary judgment to the defendants is affirmed. affirmed

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