Stephen Burrell v. Mike McIlroy Glen C. Rector Jeff Thorpe

OAKES, Circuit Judge,

dissenting:

I respectfully dissent from the majority’s holding that “a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest Burrell and to use force in doing so.” *860 Majority Op. at 857. My dissent is based on the following reasoning.

Not one of the defendants’ submissions forming the record on this appeal contains a sworn statement or assertion by defendants that they had specific information, as the cases require, that Burrell was personally armed when he was approached by Detective Rector. Defendants assert, in lieu of the argument based upon Michigan v. Summers advanced in the district court, that the facts supporting their yet-unapproved application for the search warrant, alone and without the need for any other suspicion-engendering event, provided legal justification for the arrest tactics used in seizing Burrell. The record, however, is devoid of any particularized facts or objective bases justifying the type of seizure effected here. 1

Furthermore, while defendants’ counsel contended at oral argument that the officers believed Burrell to be armed, counsel’s argument does not constitute record evidence of the specific “information” which the cases cited in Washington v. Lambert require. Likewise, it is inappropriate for an appellate court to assume or infer purported beliefs not actually articulated in the record, particularly where defendants have been represented by counsel from the beginning of this litigation and have had the opportunity to introduce evi-dentiary material supporting their motions for summary judgment below. 2

Nevertheless, the majority holds that Detective Rector had arguable justification for the seizure and is, therefore, entitled to qualified immunity. Since it is clear from the record that Burrell was arrested without probable cause, Detective Rector can only be entitled to qualified immunity if a reasonable officer in his position would have an arguable basis to believe probable cause existed to arrest Burrell. The defendants have not identified any specific facts in the record which could form the basis for an objectively reasonable belief that probable cause existed for an arrest. Moreover, on appeal, the defendants have limited their argument to the vague claim that there was “at least a colorable basis for Detective Rector to believe there was probable cause for an arrest prior to the execution of the search warrant” because he “constitutionally relied upon facts yielded from Detective Mcllroy’s investigation and his own observations during the surveillance to reach this conclusion.” Def. Br. at 23. However, there is nothing in Detective Mcllroy’s arrest report, or in any of the documents forming the record on this appeal, that indicates that the officers had particularized information that Burrell was personally armed at the time of the arrest by Detective Rector and prior *861 to the search. In short, the record on this motion for summary judgment merely shows that, at most, the detectives suspected that the search of Burrell’s apartment might reveal incriminating evidence. This alone is insufficient to establish either actual, or an arguably and objectively reasonable belief in, probable cause to arrest Burrell prior to the execution of the search.

Therefore, I would reverse the district court’s grant of summary judgment for Detective Rector and would remand for further proceedings on Burrell’s claim based upon his unconstitutional seizure. At minimum, the fact that the record is devoid of any sworn statements or any factual submissions by the defendants that could support a finding of qualified immunity warrants remand for expansion of the record and for consideration by the district court of qualified immunity in the first instance.

. The affidavit in support of the warrant states only that an informant reported that Burrell had a handgun "which he keeps in the bedroom.” This is hardly information that would warrant a full-scale, forceful arrest.

. While Burrell has been very ably represented on this appeal by appointed counsel from the law firm Kirkland & Ellis LLP, it should be noted that Burrell was proceeding as an incarcerated pro se litigant at the time the district court entertained the parties' cross-motions for summary judgment. The record in this case does not contain any form of the required notice to incarcerated pro se litigants regarding the requirements and consequences of a summary judgment motion, whether given by the district court or by defendants. In Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), the 9th Circuit held that a failure to give adequate notice to an incarcerated pro se litigant was reversible error affecting the pro se litigant's substantial rights, without engaging in a harmless error analysis. See also Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc) (reaffirming Klingele , but holding that the notice, which had theretofore been required to issue from the district court, may be issued by the summary judgment movant).