Lamont Warren v. Joseph L. Dwyer, Individually and in His Official Capacity as an Officer in the Police Dept. Of Hartford, Ct

WINTER, Circuit Judge,

dissenting:

I respectfully dissent.

I agree with my colleagues that the various instructions concerning the arrest for threatening do not warrant reversal, although I do so on harmless error grounds. 1

I also agree with my colleagues that the ultimate decision regarding the qualified immunity defense is for the court. Their observations in that regard are of course dicta because the issue was given to the jury in the instant matter and appears to have been the ground for the jury’s verdict for the defendant. See Note 1 supra. Nevertheless, the judgment is affirmed. I would reverse.

The principal area of my disagreement is over the nature of the qualified immunity defense. My colleagues perceive it as redundant of the probable cause issue, namely, whether the officer reasonably concluded that probable cause existed notwithstanding a factual misperception on his part. 2 However, although the probable cause and qualified immunity issues may overlap factually, they are very different legal issues with very different implications for the outcome in this case.

The purpose of the qualified immunity defense is to shield governmental officials *77 from liability where their conduct “could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987). The issue appears to arise in two categories of cases. In the first category, the conduct of the official impinges on a claimed constitutional right but the status of that right is ambiguous under existing law. See Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). In the second category, the right is established — here the right to be free of arrest absent probable cause — but is so highly generalized that its application in particular factual situations is subject to doubt. See Anderson v. Creighton, 107 S.Ct. at 3038-40 . As I perceive it, the qualified immunity issue in the present case is whether, given the elasticity of the concept of probable cause and the area of discretion left to the jury in applying that concept, a competent police officer would have known that Dwyer’s conduct on the night of the arrest was illegal.

This issue seems preeminently a matter for the court rather than for the jury. It is in essence a legal decision whether, on the basis of the law as it existed at the time of the particular incident, the lawfulness of the officer’s conduct was reasonably clear or was a matter of doubt. Juries are hardly suited to make decisions that require an analysis of legal concepts and an understanding of the inevitable variability in the application of highly generalized legal principles. Moreover, such an analysis would seem to invite each jury to speculate on the predictability of its own verdict.

A major difficulty, of course, is that the court ruling on the qualified immunity issue must know what the facts were that the officer faced or perceived, and the finding of those facts appears to be a matter for the jury. This is the factual overlap referred to above, presumably to be handled by the framing of special interrogatories.

Turning to the present case, the qualified immunity question is entirely resolved depending upon which version of the facts is accepted. On the one hand, Warren testified that Dwyer accosted him with his hand on his gun and thereafter arrested him for breach of the peace although Warren had done nothing but ask “What’s wrong?” and “What is going on?”. On the other hand, Dwyer testified that Warren was loud and abusive, ranted and raved and was creating enough of a fuss that Dwyer was fearful of a hostile crowd congregating.

If Warren’s version of the facts is accepted by the trier of fact, then there certainly was no probable cause because Warren had done nothing remotely criminal. Because the law was at the time clear that no probable cause existed under Warren’s version, a qualified immunity defense would fail as a matter of law. As to Dwyer’s version, if the jury found that Dwyer was reasonable in his evaluation of Warren’s conduct and in believing that that conduct might lead to the creation of a hazardous condition, probable cause for the arrest existed. The qualified immunity defense would never be reached.

In my view, therefore, the qualified immunity defense was either excluded as a matter of law or irrelevant. Nevertheless, the district court not only instructed the jury on the defense but essentially said that it could find for the defendant on that defense even if it accepted Warren’s version of the facts. That was error, and I would therefore reverse.

. In none of its supplemental instructions did the district court tell the jury that it was rescinding an earlier incorrect instruction. The instructions were thus inconsistent, and I am reluctant to infer that the jury knew that the later instruction was intended as a correction of an earlier one. However, the fact that the jury asked for reinstruction on the qualified immunity issue indicates that in all probability it resolved the probable cause issue in favor of the plaintiff. The jury had been instructed that it need not reach the qualified immunity issue if it found that there was probable cause for the arrest. If the jury was following the court’s instructions, therefore, its inquiry regarding qualified immunity indicated that it had found no probable cause for the arrest. Of course, if that is the case, the qualified immunity issue assumes central importance to the resolution of this appeal.

. Even if my colleagues’ view of the qualified immunity issue is correct, the judgment should be reversed because the instructions on that issue were confusing. The district court’s instructions made no reference to the possibility of factual misperceptions or mistaken conclusions that are so central to my colleagues' analysis. Instead, it repeatedly made comments regarding legal predictability such as "If the defendant officer convinces you by a preponderance of the evidence that a reasonable officer could not have been expected to know that such actions violated the U.S. Constitution, then you would return a verdict for the defendant.” Given the record in this case, I do not believe a jury could rationally implement those instructions because neither party argued legal predictability to it.