Holt v. Artis

WELLFORD, Circuit Judge

dissenting.

I am in agreement with a considerable part of Judge Hull’s rationale in this case, but dissent in respect to the remand of the case for a new trial. Judge Hull concedes that the jury instructions in question “accurately described the due process rights at issue in the case.” It was therefore not error to decline the proffered instruction requesting fourteenth amendment language. Judge Kerner in Kerr v. City of Chicago, 424 F.2d 1134, 1140 (7th Cir.), cert. denied, 400 U.S. 833 , 91 S.Ct. 66 , 27 L.Ed.2d 64 (1970), merely held that the “specific intent” requested instruction in a comparable situation “would [not] confuse the jury but, instead, would be helpful.” The Kerr court did not hold that the giving of such a requested instruction was necessary, or that the failure to give it was error in a § 1983 action for alleged violation of civil rights. It was clearly not reversible error in this case to decline to give this particular requested instruction on specific intent.

I agree also that the requested charge on the right to remain silent was “not relevant” to plaintiff’s claim, and, therefore was properly refused by the district court. The aspect of the district court’s charge which formed the basis for the remand was concededly not raised on appeal. This dealt with the defendants’ theory of good faith, which the district court instructed was required to be proved by defendants including language that such belief must be “reasonable.” I do not feel that this instruction on defendants’ theory of the case, not objected to, even if it were construed to be in some respect inadequate, is a basis for finding clear error, or that plaintiff was deprived of an essentially fair trial. Dominque v. Telb, 831 F.2d 673 (6th Cir.1987), cited as support for a new trial remand, simply held that the affirmative defense of qualified immunity does not impose upon the defendant “the entire burden to justify his entitlement.” 831 F.2d at 676 . A defendant claiming such qualified or good faith immunity is not required “to prove ... that the conduct alleged did not violate clearly established law.” Id.

Reasonable good faith, asserted by defendants as a basis for immunity or non-liability, related to whether the officers were aware that Milo Holt was retarded when they came into contact with him in response to a complaint that two suspects, one reasonably believed to be plaintiff Holt, were attempting to break into and enter a clothing store. It seems evident to me that the defendant officers had proba *247 ble cause to detain and question the suspects, including plaintiff, and to make an arrest if it were shown that plaintiff was involved in the reported crime. I fail to see how the charge given was so clearly incorrect or prejudicial that a new trial is mandated, particularly in the absence of objection, and in the absence of any complaint about it in the appeal.

I believe the majority misapprehends the law of qualified immunity as applied to the facts of this case. While the right to be free from arbitrary arrest or arrest without probable cause, and the right to be free from the use of excessive force may be clearly established, it does not follow that defendants’ actions in this case were objectively unreasonable as a matter of law. The question presented here was whether the specific circumstances of the arrest constituted probable cause and/or justified the use of force. In this respect the trial court needed to consider the relevant information possessed by the officers at the time. The officers’ subjective belief may not be relevant, but their objective knowledge about the background and facts which they addressed is indeed relevant. See Anderson v. Creighton, — U.S. —, 107 S.Ct. 3034, 3039, 3040 , 97 L.Ed.2d 523 (1987).

I would AFFIRM the judgment of the district court accordingly.