James v. Bryant, Jr. v. United States Treasury Department, Secret Service, and Jeff Jordan Brian v. Hunter

TROTT, Circuit Judge,

dissenting:

I base my respectful quarrel with the majority opinion primarily on one point: I do not believe it was unreasonable for Special Agents Hunter and Jordan to have come to the informed and trained conclusion that they had reasonable cause to believe that Bryant was the murderous “Mr. Image” who was planning and threatening to kill the President of the United States.

Of course, to those of us who are rational, none of Bryant’s behavior makes any sense, but it did to Bryant, and that is the point. Fantasy cannot be judged by rational standards. One must suspend disbelief and cope with the fantasizer’s world. Agents of the Secret Service do this every day as they cope with unstable people who threaten and stalk our public officials. Stable rational people don’t attack Presidents. John Hinckley’s thought process leading up to his shooting of President Reagan did not make any sense either, but that did not stop him from his assassination attempt. Using the attempted murder of the President to get a date with a movie star is no less strange than either the “thinking” in Bryant’s letter or his behavior. Yet the majority opinion insists on measuring what confronted Hunter and Jordan in the field by rational standards.

The majority opinion basically sees this ease as though others were up to something and Bryant was not involved; he was just turning them in. It speaks of the *728 threats as not made by Bryant, but only by “Mr. Image,” and it asserts that Bryant does not identify with Mr. Image. This completely misses the point. All of this was Bryant. There were no “others,” and the agents seem to have figured this out quite promptly. People suffering from schizophrenia frequently suffer also from split personality disorders.

After a campus security officer notified them of a plot to kill the President, Hunter and Jordan tried to find out from Bryant more about “Mr. Image.” Bryant refused to identify “Mr. Image.” To work from the majority opinion’s premise, if Bryant did not identify with “Mr. Image” and saw him as his oppressor, why was Bryant reluctant to turn him in? The agents asked Bryant about his own attitude toward the President. He refused to answer. He also refused to state whether he intended to harm President Reagan. Based on the totality of the information presented to them — including the slashing motions Bryant made across his throat coupled with statements by him that the President “should have been killed in Bonn” — Hunter and Jordan concluded they had probable cause to believe that Bryant and “Mr. Image” were one and the same deranged person and that his total behavior including the letter constituted a threat under section 871.

Under the law, they did not have to be certain or even have proof by a preponderance of the evidence, just probable cause. What the majority opinion does not adequately recognize is that this is a standard that permits mistakes in judgment, assuming arguendo that such is the case here.

We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable. The same is true of their conclusions regarding exigent circumstances.

Anderson v. Creighton, 483 U.S. 635, 641 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987) (citation omitted). So even assuming a mistake in judgment as to whether Bryant was threatening the President, the issue remains as to whether the mistake was reasonable.

The Supreme Court in Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986), further refined the term “reasonable” in this context: “but if officers of reasonable competence could disagree on this issue [the existence of probable cause], immunity should be recognized.”

Hill v. California, 401 U.S. 797 , 91 S.Ct. 1106 , 28 L.Ed.2d 484 (1971), illustrates this principle. In Hill , police officers with probable cause to arrest Archie Hill mistook Miller for Hill and arrested him instead. They did so even though Miller ardently denied he was Hill and produced evidence indicating his true identity. Police then searched Hill’s apartment incident to the mistaken arrest of Miller, and the prosecution later used some of the evidence seized to convict Hill after police resolved the matter of Miller’s mistaken identity.

The Supreme Court dismissed Hill’s complaint that Miller’s arrest was without probable cause with the following observations that I find helpful in resolving the present case:

The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.

... In these circumstances the police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill, that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to believe Hill had committed. When judged in accordance with “the factual *729 and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” Brinegar v. United States, 338 U.S. 160, 175 [ 69 S.Ct. 1302, 1310 , 93 L.Ed. 1879 ] (1949), the arrest and subsequent search were reasonable and valid under the Fourth Amendment.

401 U.S. at 803-05 , 91 S.Ct. at 1110-11 (emphasis added).

Let me return for a moment to square one. Probable cause is a deceptively simple description for a complex concept. One commentator has called it “an exceedingly difficult concept to objectify.” 1 The following description captures its elusive nature:

The contours and salient principles of probable cause have been faithfully cat-alogued in a surfeit of decisional law.... Probable cause does not emanate from an antiseptic courtroom, a sterile library or a sacrosanct adytum, nor is it a pristine “philosophical concept existing in a vacuum,” but rather it requires a pragmatic analysis of “everyday life on which reasonable and prudent men, not legal technicians, act.” It is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. It is “a plastic concept whose existence depends on the facts and circumstances of the particular case.” Because of the kaleidoscopic myriad that goes into the probable cause mix “seldom does a decision in one case handily dispose of the next.” It is however the totality of these facts and circumstances which is the relevant consideration. Viewed singly these factors may not be dispositive, yet when viewed in unison the puzzle may fit.

United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972) (emphasis added) (citations omitted).

This description uses the word “pragmatic” in describing the decision making process that goes into the determination of probable cause. Exactly what this means is best illustrated by another case involving the current jurisdiction of Secret Service Agents: the assassination of Senator Robert Kennedy during his bid to become President of the United States. Shortly after Senator Kennedy was killed, agents searched his assassin’s room without a warrant and seized incriminating evidence later used to convict him of murder. Si-rhan Sirhan challenged the admissibility of this evidence on appeal, but the California Supreme Court turned back his challenge with this analysis:

The victim was a major presidential candidate, and a crime of violence had already been committed against him. The crime thus involved far more than possibly idle threats. Although the officers did not have reasonable cause to believe that the house contained evidence of a conspiracy to assassinate prominent political leaders, we believe that the mere possibility that there might be such evidence in the house fully warranted the officers’ actions. It is not difficult to envisage what would have been the effect on this nation if several more political assassinations had followed that of Senator Kennedy. Today when assassinations of persons of prominence have repeatedly been committed in this country, it is essential that law enforcement officers be allowed to take fast action in their endeavors to combat such crimes.

People v. Sirhan, 7 Cal.3d 710, 739 , 497 P.2d 1121, 1140 , 102 Cal.Rptr. 385, 404 (1972), cert. denied, 410 U.S. 947 , 93 S.Ct. 1382 , 35 L.Ed.2d 613 (1973), overruled in part on other grounds, Hawkins v. Superior Court, 22 Cal.3d 584 , 593 n. 7, 586 P.2d 916 , 922 n. 7, 150 Cal.Rptr. 435 , 441 n. 7 (1978).

That the present ease does not involve a completed crime of violence is not a reason to distinguish Sirhan ; it is a reason to celebrate. We expect the Secret Service to prevent these crimes, not just attend funerals when they occur.

The Davis court also emphasized the role that the expertise and special training of the arresting officer plays in the determi *730 nation of probable cause. This, of course, makes good sense. We spend billions of dollars providing special training for our law enforcement officers. What a waste if we do not rely on it. Here, the Secret Service has a unique and special mission for which its agents are highly trained. We should be cautious before we second-guess their field decisions as to whether probable cause exists to believe someone is threatening the President, especially in situations involving disturbed people. This comes through loud and clear in Sirhan .

This brings us back to the present case. I respectfully believe that the majority opinion dismisses too summarily — only grudgingly discussing the “alter ego” theory — the government’s argument, and the agents’ belief, that Mr. Bryant was really “Mr. Image,” and vice versa. Their belief does not strike me as irrational. It reminds me of a case that illustrates the unpredictable dimensions of homicidal fantasies and the role of the alter ego in demented thought patterns.

In the early 1970s, a madman named Kurbegovic terrorized the City of Los An-geles. 2 He fashioned headlines for his cause by detonating bombs in public places, including the Los Angeles International Airport. Lives were lost, and people were maimed. He dictated extremely bizarre taped messages to the public demanding social change. He claimed on the tapes to be “Esak Rasim,” speaking first as a field commander of the “Symbionese Liberation Army” (“SLA”) and later as the “Chief Military Officer” of “Aliens of America.” Although he denied vigorously in court— after being found competent to stand trial — that he was “Esak Rasim” and that he had anything to do with “Aliens of America” or the SLA, it became clear that he, Kurbegovic, was “Aliens of America.” This was his fantasy. Similarly, in the present case there was no real “Mr. Image,” only Mr. Bryant; and “Mr. Image” resided only in one place, in Bryant’s brain. In that sense, Bryant was “Mr. Image” even though in his warped thinking “Mr. Image” may have been someone else.

It was not unreasonable here for trained agents of the Secret Service to conclude they had a similarly unstable person on their hands. As in the present case, when the police finally arrested Kurbegovic, he certainly did not admit he was Rasim. It is not uncommon for unstable individuals to adopt identities that are nothing more than strange pseudonyms.

Should the agents have walked away from Bryant, leaving him to his own devices while believing he was “Mr. Image”? Even Bryant’s attorney conceded in oral argument that something had to be done to monitor him. Why? Given the recent history of assaults on our leaders, it would hardly have been “prudent” to have ignored Bryant and let him go his own way.

So who finally ends up in court? Not Bryant, just the agents. It is one thing to expect agents of the Secret Service to throw themselves in front of assassins’ bullets. That is a known risk they all willingly incur. It is another altogether to throw them in front of lawsuits in cases like this. This case is precisely what qualified immunity is designed to protect agents like Hunter and Jordan against: being sued for reasonably doing their job.

Measuring all of this against the controlling law, I would reverse the denial of summary judgment on this claim, for several reasons.

First, no case on the books in this circuit discusses the contours of probable cause to make an arrest for a violation of section 871, not one. It may be “clearly established” that authorities need probable cause to make an arrest, but case law has not developed or defined what constitutes probable cause in a given situation. Cf. Capoeman v. Reed, 754 F.2d 1512 (9th Cir.1985). Because of the uniquely unstable people who run afoul of section 871, I think this dearth of authority is relevant. Second, I believe for the reasons discussed earlier that the agents had probable cause to arrest Bryant and to believe the letter *731 coupled with his conduct constituted a threat against the President. At the very-least, “officers of reasonable competence could disagree on this issue.” Malley, 475 U.S. at 341 , 106 S.Ct. at 1096 .

Third, Malley makes it clear that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Id. Hunter and Jordan do not qualify as unprotected under this standard. After they arrested Bryant, a magistrate — who enjoys absolute immunity— found probable cause to hold him for 14 days before releasing him when the United States Attorney in the exercise of his judgment decided not to prosecute. Moreover, not a scintilla of evidence exists that either agent was acting in bad faith. Leaving Hunter and Jordan out in the cold thus disserves the purpose of qualified immunity. It is unseemly that we, the judiciary, clothe ourselves in absolute immunity and leave the agents to take the hits.

Fourth, Hunter and Jordan professionally discharged their unique role in the criminal justice process: they arrested Bryant and deposited him in the system for the lawyers to figure all of this out. Maybe it was a harmless fantasy, maybe it was not. Maybe “Mr. Image” was a figment of Bryant’s imagination. Maybe Mr. Bryant was incompetent to stand trial. This was for lawyers to sort out, not agents.

The Supreme Court calls upon us in Davis v. Scherer, 468 U.S. 183, 196 , 104 S.Ct. 3012, 3020 , 82 L.Ed.2d 139 (1984), to recognize the demands of the real world in measuring activity by members of the executive branch:

Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pain of money damages. Such officials as police officers or prison wardens, to say nothing of higher level executives who enjoy only qualified immunity, routinely make close decisions in the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. Schuck, Suing Government 66 (1983). In these circumstances, officials should not err always on the side of caution. “[Officials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.”

Today we have failed to give that message due consideration.

As to the second issue in this case, I agree with the majority’s analysis, but as to the primary question, I dissent.

. Cook, Probable Cause to Arrest, 24 Vand.L. Rev. 317 (1971).

. The terrifying tale of the Alphabet Bomber’s murderous rampage is found in People v. Kurbe-govic, 138 Cal.App.3d 731 , 188 Cal.Rptr. 268 (1982).