# John M. Gainor v. Scott Rogers City of Moorhead, a Minnesota Municipality and John Doe

> Court of Appeals for the Eighth Circuit · October 9, 1992 · 973 F.2d 1379

URL: https://www.frixlaw.com/law-library/cases/9483343

## Case

- **Full name:** John M. GAINOR, Appellee, v. Scott ROGERS; City of Moorhead, a Minnesota Municipality; And John Doe, Appellants
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** October 9, 1992
- **Citations:** 973 F.2d 1379
- **Precedential status:** Published
- **Opinion:** Dissent by Loken
- **Judges:** Loken, Lay, Heaney
- **Cited by:** 73 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483343

## How later opinions describe it (automated extraction)

- holding that when there is a genuine issue of material fact, “the defense of qualified immunity shielding the defendant from trial must be denied .... [because] it is impossible for the court to determine, as a matter of law, what predicate facts exist to decide whether or not…
- noting that Supreme Court has not determined whether an officer may arrest an individual for refusing to identify himself or herself during an investigative stop
- noting the Supreme Court has not determined if a person can be lawfully arrested for refusing to identify himself or herself in the context of a lawful investigative stop

## Opinion text

LOKEN, Circuit Judge,
dissenting.
I respectfully dissent. I believe the majority opinion pays only lip service to the defense of qualified immunity in this close case, the very kind of case for which the defense was intended. I conclude that defendants are entitled to qualified immunity as a matter of law on Gainor’s unlawful arrest and First Amendment claims. I would remand his excessive force claim for further consideration of the qualified immunity issue prior to trial.
To ensure that qualified immunity provides effective protection against unnecessary litigation risk and expense, the Supreme Court has adopted a standard of objective reasonableness — public officials are entitled to qualified immunity when 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 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Qualified immunity is a question of law that “ordinarily should be decided by the court long before trial.” Hunter v. Bryant, — U.S. -, 112 S.Ct. 534, 537 , 116 L.Ed.2d 589 (1991).
However, freedom from unnecessary trials .is not the only purpose served by the qualified immunity defense; it also shields the public servant from unwarranted damage liability:
[Permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing' litigation will unduly inhibit officials in the discharge of their duties.
Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987). Therefore, the procedures for determining the qualified immunity defense must be carefully tailored to meet its dual purposes of preventing unnecessary trials and protecting public officials from damage liability for objectively reasonable conduct.
*1389 The Supreme Court has not yet fully addressed these procedural issues, but it has provided substantial guidance in a passage that the majority quotes but then largely ignores:
[I]t should first be determined whether the actions [plaintiff] allege[s] ... are actions that a reasonable officer could have believed lawful. If they are, then [defendant] is entitled to dismissal prior to discovery. If they are not, and if the actions [defendant] claims he took are different from those [plaintiff] allege[s] (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before [defendant’s] motion for summary judgment on qualified immunity grounds can be resolved.
Anderson v. Creighton, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 -43 n. 6. For purposes of applying this standard to Gainor’s claims, I conclude that, except for the excessive force claim, the relevant facts in this case are néither complex nor disputed.
Unlawful Arrest. This claim should not survive the pleading stage of the Anderson v. Creighton standard because Gainor has alleged “actions that a reasonable officer could have believed lawful.” Gainor’s Amended Complaint alleged:
13. Rogers ... indicated Plaintiff was guilty of solicitation and threatened to arrest Plaintiff if his demands for identification were not met.
If Rogers believed he had reasonable suspicion to stop Gainor to investigate unlawful soliciting, as Gainor alleges, then Rogers was entitled to employ the “least intrusive [investigative methods] reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983). See United States v. Willis, 967 F.2d 1220 (8th Cir. 1992). Surely, the least intrusive method to investigate possible unlawful soliciting is to ask for identification. 1
If Rogers was reasonable in making an investigative stop and in asking Gainor for identification as part of that reasonable investigation, the lawfulness of the arrest turns on the narrow issue the Supreme Court expressly left open in Brown v. Texas, 443 U.S. 47 , 53 n. 3, 99 S.Ct. 2637 , 2641 n. 3, 61 L.Ed.2d 357 (1979): “whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.” That question was unsettled at the time and remains unsettled today; thus, Gainor has failed to allege a violation of clearly established law that would “convert the common law tort of false arrest or false imprisonment to a violation of a constitutional right.” Edwards v. Baer, 863 F.2d 606, 607 (8th Cir.1989).
The majority simply ignores the pleading stage of the Anderson v. Creighton inquiry. Then, in analyzing the discovery record, the majority gives a deceptively cramped summary of Rogers’s deposition testimony as to the objective circumstances that led him to stop Gainor and ask for identification. See page 1387, supra. Rogers testified:
Q. Okay. We’ve talked about intoxication. We’ve talked about the fact that you saw pedestrians having to go around him and his cross and we’ve talked about the fact that you thought he may be a nuisance by stopping people, correct?
A. That’s correct.
Q. Anything else that concerned you as a police officer prior to you asking Mr. Gainor his name?
A. Yes.
Q. What?
A. The passing out of these pieces of paper, pamphlets or whatever they were.
******
*1390 Q. What about the passing out of these pieces of paper concerned you, Officer?
A. I wondered what their content was and the possibility of him soliciting-
Q. What do you mean by soliciting?
A. Receiving funds for passing out without a permit.
Q. Is that illegal in this city?
A. I believe there’s a permit required.
Q. So the possibility of intoxication, the nuisance of pedestrians going around his cross, the potential for soliciting, and what else prompted you to stop him now? We’ve talked about a number of different things.
A. Overwhelming concern for public safety was my—
Q. You saw him as a threat to the public safety?
A. A possible threat, yes.
Q. A possible threat. Up to the time that you asked him his name, did you have any reason to believe he had done anything illegal?
A. Yes.
Q. What?
A. Being a public nuisance.
Rogers’s above-quoted deposition testimony is entirely consistent with Gainor’s complaint. Thus, there are no disputed issues of fact here if the focus is properly limited to whether Officer Rogers could have reasonably believed that his conduct did not violate clearly established law.
Moreover, other portions of the discovery record confirm that Rogers’s conduct was objectively reasonable, even if his arrest of Gainor did overstep Fourth Amendment bounds. In June 1988, Gainor was arrested in Kootenia, Idaho. In July 1989, he was arrested in Winthrop Harbor, Illinois, and Glendale, Wisconsin. 2 All three of these arrest reports reflect circumstances virtually, identical to Gainor's encounter with Rogers and the Moorhead police. Thus, in a span of thirteen months, police officers in four different States concluded that the same conduct warranted Gainor’s arrest. “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986). It is clear that Rogers was neither in this case. Therefore, I cannot reconcile the majority’s denial of qualified immunity on this discovery record with Anderson v. Creighton and Hunter v. Bryant.
First Amendment. The majority concludes that the motion for summary judgment on this claim must be denied because Gainor’s assertion that he was arrested “solely for spreading a religious message” raises a genuine issue of material fact. But a defendant’s motives are irrelevant to the qualified immunity issue. As the Supreme Court said in Harlow , “bare allegations of malice should not suffice,” 457 U.S. at 817 , 102 S.Ct. at 2738 ; and again in Anderson , “Anderson’s subjective beliefs about the.search are irrelevant,” 483 U.S. at 641 , 107 S.Ct. at 3040 . Thus, the majority’s analysis is plainly contrary to the controlling law of qualified immunity.
There.is an issue lurking here that the Supreme Court has not yet addressed: if the plaintiff’s constitutional claim is based upon the defendant’s bad motives (as it typically is in First Amendment cases), and if the undisputed facts demonstrate that the defendant had an objectively reasonable basis for his conduct, can this alleged bad motive defeat summary judgment on qualified immunity grounds? The Supreme Court was able to avoid this issue in Siegert v. Gilley, — U.S.-, 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991); because the majority found no constitutional violation. 3 *1391 I would not reach the issue here because Gainor has presented no evidence that Rogers’s conduct was motivated by Gainor’s religious activities. This case turns on whether Rogers was objectively reasonable in stopping Gainor and then in arresting him for refusing a request for identification. The fact that Gainor purported to be engaged in religious activity does not affect (or at most negligibly affects) whether Rogers was reasonable in suspecting Gai-nor of unlawfully soliciting and creating a public nuisance.
Excessive Force. The majority relies upon Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), for its resolution of this issue. The problem is that Graham was decided after Rogers’s conduct in question. The facts surrounding this claim are hotly disputed, and qualified immunity after Graham remains unsettled. See the various opinions in Hammer v. Gross, 932 F.2d 842 (9th Cir.1991) (en banc). Accordingly, I would remand this issue for further consideration consistent with the procedural standard of Anderson v. Creighton.
To conclude, in Anderson v. Creighton, the Supreme Court held that this court had unduly restricted the qualified immunity defense by defining “clearly established law” too broadly. Today, the majority adopts an even more hostile approach to the defense, limiting it to cases in which “the officer asserted conduct which would give rise to probable cause.” Page 1384, supra. Under this standard, the defendant must prove a defense on the merits to be entitled to qualified immunity. Such a standard is inconsistent with Anderson v. Creighton, Hunter v. Bryant, Harlow v. Fitzgerald, and other controlling Supreme Court cases. I dissent.
. It is no answer to say, as the majority does, that Rogers did not acquire any evidence of illegal soliciting after he stopped Gainor. See note 4, supra. Rogers was not required to accept what Gainor told him. See United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.1991). Even Gainor admitted in his deposition testimony, "if I was actually being investigated for something, then perhaps they did have a grounds to stop and check me out."
. Rogers obtained this information from public records because Gainor refused to answer in discovery any inquiries about his numerous pri- or encounters with law enforcement officials. With the objective reasonableness of Rogers’s conduct at issue, this refusal was a flagrant abuse of the discovery process.
. In a concurring opinion, Justice Kennedy addressed the qualified immunity issue and resolved it by adopting a "heightened pleading standard," — U.S. at-, 111 S.Ct. at 1795 . However, the "rub” in close cases tends to come at the fact-finding rather than at the pleading stage, so I suspect the Supreme Court will need to take up this issue again.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483343. Public record. Not legal advice.