# Petition for Writ of Certiorari — Warren v. City of Lincoln > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1162%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1091 ## Text ——— oe | : APR 1 JOSEPH F. SPANIOL, JR, Supreme Court, U.S FILED No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1988 JACKSON WARREN, Petitioner, VS. ¢ CITY OF LINCOLN, NEBRASKA, JAMES BREEN, SANDRA L. MYERS, and DAVID BEGGS, Respondents. PETITION FOR WRIT OF CERTIORAR| TO THE EIGHTH CIRCUIT COURT OF APPEALS James R. Mowbray Counsel for Counsel for Petitioner Respondent Dorothy A. Walker S30 $.. 13th St: 201 N. Sth Se. Suite A Suite 242 Lincoln, NE Lincoln, NE 68508 68508 (402) 475-2595 (402) 476-3882 Cooperating Attorneys for the Nebraska Civil Liberties Union Richard Sievers “ QUESTIONS PRESENTED Does jurisdiction, . following autnorize and theory advanced for a party's en banc ji concecead lcers, the supplemental * j oO acting a Said argument and or argument Fourteen en + the federa'! ire banc, upon petition for consideration the ~ brief party mn renearing, 7 at Amendment uncer t p) sv “Tp h 5 Ime + Ww - apne! + at e a renearing of first time iz I renearing, argument ry on rehearing 3 ct ‘aan ~~ authority ant C Nebrask necessary arr gee Wa ant su arrestee theory were 07) O unrelated felony crimes by coercing nontestimonial physical characteristics absent a showing of probable cause on the unrelated felony crimes? 3. Do the Fifth and Sixth Amendments to the United States Constitution by and through the Fourteenth Amendment entitle a traffic warrant arrestee to assistance of counse’ when he is taken into custody, pursuant to an arrest warrant for speec':ng anc failing to appear, which carries a penalty of three months imprisonment, anc detained in custody for question-ng, Fingerprinting and photographing on unrelated felony investigations? 4, is the determination of probable cause initially a question of fact for the jury in a civil rights action for unlawful detention under 42 U.8.C." 1983? 5. ls the issue of defendant police wr vv -o* =) ‘ 2 OF PARTIES IST ' L anc Warren, 42 © - q) NeorasKa, O - ~ wr be . Appeals U @ January NTS OF CONTER a - — TABL Lil — ~ wy) tf the plurality opinion of four judges and the concurring opinion of one judge is allowed to stand, tnen the citizens of the State of Nebras) ¢ ‘| ¢) " t) ‘ t ) (>) €F) { 0 { vs (ry Ww) Wu) Eighth Circuit, is reported at 816 F.2d 1254 and is reprinted in the Appendix 8 hereto. JURISDICTION The jurisdiction of this Court to review the judgment of the United States Court of Appeals for the Eighth Circutt js invoked under 28 U.S.C. 1254(1). The jurisdiction of the Eighth Circuit was invoked under 28 U.S.C. iZo ts The jurisdiction of the United tates District Court for Nebraska was invoked under 28 U.S.C. 1343 (13). CONSTITUTIONAL PROVISIONS INVOLVED The Constitution of the United States Articles fh Poe, eee and Article XIV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonab'ie searches and seizures, sna!!! not be violated. but upon probable cause. . .NO person shall be. . .compe!!ed in any criminal case to be a witness against himself nor be deprived of life, liberty, or Property, without due process of law eee ie Se criminal Prosecutions, the accused shall enjoy the right. . .to have the Assistance of Counse! for his defense. . -No State shal! deprive any person of life, liberty, or Property, without due process of law. FEDERAL STATUTORY PROVISIONS 42 U.S.C. 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, Privileges, or immunities secured by the Constitution and laws, shai? be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the Purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. STATE STATUTORY PROVISIONS Section 29-427 Any peace officer having grounds for making an arrest may take the accused into custody or, already having done SO, detain x7 him further when the accused fails to identify himself satisfactorily, or refuses to sign the citation, or when the officer has reasonable grounds to believe that (1) the accused wi!’ refuse to respond to the citation, (2) such custody is necessary to protect the accused or others when his continued liberty would constitute a risk of immediate harm, (3) such action is necessary in order to carry out legitimate investigative functions, (4) the accused has no ties to the juris- p>) Giction reasonably sufficient to assure his appearance, or (5) the accused has previously failed to appear in response to a citation. NOTICE TO ATTORNEY GENERAL OF STATE OF NEBRASKA The petitioner challenges the constitutionality of Nebraska Revised Statutes 29-427 and notices the attorney general of the State of Nebraska of said challenge. STATEMENT OF THE CASE Jackson Warren Was contacted in his © $v 3 O z Darked automobile around 4:3 O @ Apri] PP 1985, Dy two Lincoln co! officers, who were Investigating a report Dy a male that a slender white ma Cwenties, wearing a white snort sleevecd snirt attempted to break into 71S second Story apartment through a Window. The first Officer to contact Warren was Alexander With his police Cog that had tracked from the vicinity Of the attempted break-ir 2c. [5th 4&4 c Streets to the Vicinity of Warren'.- Parked vehicle Detween Sth and 20th on C Street Warren was Inside the venicie. As the police converged on the area, Warren attempted to arive away. At Alexander's direction, Warren Parked his venicle and remained inside OT 4¢. At the direction of another officer Myers contacted , y Warren in his. vehicle, questioned him briefly, and upon running a warrant check found that Warren had an outstanding traffic warrant for speeding and failing to appear. Myers arrested Warren on the failure to appear warrant, performed a pat-down search, placed him in her squad car, and transported him to the jai! where she turned his custody over to Detective Breen around 5:00 a.m. for questioning relating to the attempted burglary and a series of burglaries and sexual assaults Breen was investigating. Breen denied Warren's request to contact an attorney and questioned Warren about his whereabouts earlier in the evening. Detective Beggs interrupted the custodia! interrogation to examine Warren's hands and shoes for trace evidence. Breen and Beggs took Warren in their custody from the jail to the police Station to obtain numerous prints of Warren's fingers’ and palms, three mug shots and three polaroid photos. Warren was returned to the jail in the custody of Breen around 6:30 a.m. to Post bond on the failure to appear traffic warrant. Warren was nineteen years old at the time of the arrest, white, male and slender. He was not wearing a white short sleeved shirt, but a pink short sleeved shirt. Appendix A at 2-6. Appendix B at 2-6. The issues at jury trial under Warren's 42 U.S.C. 1983 complaint were: Whether the failure to appear traffic warrant authorized the police to detain Warren in custody, without counsel, to question him on the April 13, 1985 attempted break-in, other burglaries and sexual} assaults under investigation by the Lincoln Police Department and to obtain nontestimonial physical] evidence to aid in the Felony investigations, under a snowing of reasonable suspicion; whether the City of Lincoln's long standing policy and Procedure of detaining traffic i; 3 ju Ap warrant arrestee's for inter- rogation and investigation of the arrestee's involvement in other crimes denies the arrestee’s Fourth, Fifth, Sixth and Fourteenth Amendment rights under 42 U.S.C. 1983; and whether the respondents were entitled to qualified immunity. The issues on appeai to the three dge panel were: Whether the trial court erred in instructing the jury that Warren had been arrested for a traffic violation when there was evidence that in fact he had been arrested as a suspect in an attempted burglary; Whether the trial court erred in instructing the jury as to the law of custodial! arrest and interrogation; whether the trial! court misinstructed the jury on the law of qualified immunity; and whether the tria’? court erred in dismissing, at the close of the appellant's case-in-chief, the complaint as to the City of Lincoln and Officer Myers.” pendix B at 7-8 The three judge pane! found in favor of the petitioner on all issues and remanded for new trial. Appendix 8B at 8. The issues upon Petition for Rehearing en 4 banc remained the same for the respondents as those at trial. Not until filing their Supplementary Brief on Petition for Rehearing did the respondents assert that the Eighth Circuit en banc could find as a matter of law, probable cause to arrest Warren for the attempted burglary. The four judge plurality agreed with the respondents and affirmed the district court judgment which was adverse to each and every claim made by Warren. Appendix A at 5 Judge Gibson's concurring affirmance found that the issue Of uniawful detention was properly submitted and that the officers were protected by qualified immunity by their reliance on the Nebraska statute (29-427 set forth at page xi herein). Gibson found this statute did not violate clearly established law. Appendix A at 25-26. The four judge dissent maintained the three-judge pane! opinion and further found that the plurality opinion was " sthout authority to hold that there was for probable cause to arrest Warren attempted burglary. Append?x A at , 2 REASONS FOR GRANTING THE WRIT \f the plurality opinion of four judges and the concurring opinion of one judge is allowed to stand, then the citizens of the State of Nebraska who are arrested on traffic warrants will be subject to unlawful detention for investigative purposes, including uncounseled, custodial interrogation and coerced non-testimonial physical characteristics on unrelated felony charges absent a showing of probable cause to believe the traffic arrestee committed the unrelated felony charges. By opting to exercise their ciscre- tion to consider new arguments on appea! to find that the police officers hac probable cause to arrest the petitioner for the attempted burglary, tne plurality affirms a district court judgment foundec on clearly erroneous and constitutiona!ly P infirm jury Instructions. DUE PROCESS INSTRUCTION The district court Instruction on Due Process of Law" 1s found at Footnote 1 of the panel Opinion. Appendix 8 at This instruction Violates clearly established constitutiona] Taw held, affirmed and reaffirmed by this Court. The instruction is Obviously based upon the clearly erroneous and constitution- y Infirm interpretation Dy the district court and the respondents of Nebraska statute (29-427 set forth at page herein). Neither the instruction nor the Interpretation of the statute requires the officers to Nave reasonable grounds to believe that Warren, committed the attempted burglary or any other offense the officers had under Investigation. The only restriction placed on the DOlice conduct herein was that of reasonableness of time. investigatory detention 1s reasonable only if founded on probable cause for the offense for which the detainee is held. Dunaway v. New York, 442 U.S. 200 (1974). PROBABLE CAUSE IN 1983 ACTION iS JURY QUESTION The Eighth Circuit and the majority of the Circuit Courts of Appeais, have consistently held that in (42 U.S.C. Section 1983) civil rights actions of this nature, where a genuine issue of fact on the existence of probable cause for arrest is presented, the question should be submitted to the jury. Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir. 1970), cert. denied, 403 U.S. 93’, 91 $.Cct. 2250, 29 L.Ed. 2d 709 (1971), citing Adickes v. S$.H. Kresse & Co., (398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). This rule was affirmed in tinn v. Garcia, 53! F.2d 855 (8th Cir. 1976). The First, Third, Fifth, Seventh, Ninth and Tenth Circuit Courts of Appea’ are in agreement. 38.¢C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7,10 (lst Cir. 1984); Dreary v. Three Un-named Police Officers, 746 F.2d 185, 191-192 (3rd Cir. 1984); Reeves y. City of Jackson, Miss., 608 F.2d 644, 648 (Sth Cir. 1979); Garris vy. Rowland, 678 F.2d 1264, 1270 (Sth Cir.1982), cert. Genied 459 U.S. 864 (1982); Lester v. City of Chicago, 830 F.2d 706, 715-716 (7th Cir. 1987); McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984), Bilbrey by Bilbrey vy. Brown, 738 F.2d 1462, 1467 (9th Cir. 1984); Marland y. Heyse, 315 F.2d 312, 314 (10th Cir. 1963). At trial, petitioner, not the respondents, submitted 2roposed = jury Instructions on CAUSE FOR OBTAINING PHOTOGRAPHS AND FINGERPRINTS (No.7) and PROBABLE CAUSE (No.8). (D.R. 32). The obtaining of fingerprints, palm prints, hand printing, and photographs of an individual are nontestimonial identification procedures. The law of the State of Nebraska states that the compulsion of a person byh (sic) police officers to accompany them to the police station, and the forced submission to nontestimonial identification procedures, is a seizure of such a magnitude that more than mere suspicion is required. There must be a showing of probable (sic) cause to believe the person so seized has engaged in an articulabie criminal offense prior to the compulsion and forced submission to said procedures. State v. Evans, 215 Neb. 435, 44°, 338 N.W. 2d 788 (1983). Probable cause may be defined as reasonable grounds for action, or the existence of facts and circum- stances which would induce a reason- able person to believe that a crime has been committed and that the suspect has committed tne crime. A mere suspicion or belief is never sufficient. The petitioner's instructions are soundly supported by Dunaway, suora. 10 Brown y. lllinois, 422 U.S. 990, 45 L.Ed. 2d 416, 95 S$.ct. 2284 (1979); Davis vy. Mississippi, 394 U.S. ai, 69 $.Cct. 1394, 22 L.Ed. 2d 676 (1969), and the majority of the circuit Courts of Appeals in the cases previously cited, at page 9 nerein. The law is aDundantly clear. “Reasonable suspicion" does not meet the Fourteenth Amendment requirement of Probable cause to seize a citizen, deta; Se him in Custody and force him to submit to interrogation, and to nontestimonia’ identification procedures INCluding photographs and fingerprints. in Dunaway, Supra, a suspect was Picked up by police officers and held for questioning. Later, the Suspect, Dunaway, was convicted after information supplied during his interrogation INcriminated him. His motion to Suppress evidence obtained by the seizure was denied by the state court. Reversing the state court's denial to suppress evidence, this Court reversed and rejected the state's contention that Dunaway's seizure was permissible because it was based upon reasonable suspicion and did not amount to an arrest. This Court stated: The application of the Fourth Amendment's requirement of probable cause does not depenc upon whether an intrusion of this magnitude is termed an "arrest' under state law. The mere fact that petitioner was not told he was under arrest, was not “booked,” and would not have had an arrest record if t interrogation had proved fruit! while not insignificant for a! purposes, (citation omitted), obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are "reasonable" only if based on eronen ls Cause. . .°. For all but NO those narrowly defined intrusions, the requisite “balancing” has been performed in centuries of precedent and is embodied in the Principle that seizures are "reasonable" only if Supported by probable cause. Moreover, two important decisions Since Terry confirm the conclusion that the treatment of the petitioner, whether or not it is technically characterized as an arrest, must be Supported by probable cause. Davis Vv. Mississippi, (supra. ), considered whether fingerprints taken from a suspect detained without probable cause must be excluded from evidence. The State argued that the detention "was of the type which does not require probable cause," (citation omitted), because it occurred during an investigative, rather than accusatory state, and because it was for the sole purpose of taking fingerprints. Rejecting the state's first argument, the court warned: "(T)o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the Purposes of the Fourth Amendment. investigatory seizures would SuDdject Unlimited numbers of Innocent persons to the harassment and Tgnominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment Was meant to prevent wholesale intrusions UPON persona] security +3 of our citizenry, whether these intrusions be termed ‘arrest’ or "investigatory detention.'” Dunaway at 212-215. (Emphasis supplied). Since 1975, this Court has continuous- ly disapproved of arrests made for "investigatory' purposes on less’ than probable cause grounds. Brown, supra. Warren was taken to an interrogation room and his experience is indistinguishable from Davis, Brown and Dunaway. Referring to Brown, this Court condemned the police conduct in Dunaway. Our condemnation of the police conduct in Brown fits equally the police conduct in this case: “The impropriety of the arrest was obvious; awareness of the fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for "questioning’' .. . The arrest, both in design and in execution, was investigatory. The detectives embarked upon the expedition for evidence in the hope that something mignt turn up.” 14 Dunaway at 216. The Dunaway court concluded in 1979 that: Detention for custodial] Interrogation -- regardiess of its labe] -- intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional] safeguards against illegal arrests. id. As in Brown, respondents Myers, Breen and Beggs, testified that the purpose of cheir actions were "for investigation." The detention of Jackson Warren, both in design and in execution, was Iinvestiga- tory. The officers, embarked upon their "expedition for evidence in the hope that something might turn up." Brown at 605. The Due Process of Law jury instruction completely misled the jury, and was in direct Violation of Brown, Davis, and Ounaway. Appendix 8 at 8, ny 7} Petitioners proposed, yet rejected, 15 jury instructions placed the issue of probable cause squarely and proper'y where it belonged, before tre jury. The task of determining whether probable cause to arrest exists as a matter of law in section 1983 actions is different than a similar determination in the context of a cirect review of a criminal arrest. McKenzie v. Lamb, 738 F.2d !005, 1007 (9th Cir. 1984). Justice Kennedy, writing for the Ninth Circuit, stated: In the latter situation, we are called upon to review both law and fact and to draw the line a to what is and is no reasonable behavior. * * * By contrast, ina Section 1983 action the factual matters underlying the judgment of reasonable- ness generally mean that probable cause is a question for the jury * * * id. at 1007-08 (Emphasis supplied). APPELLATE JURISDICTION TO DETERMINE PROBABLE CAUSE AS AS A MATTER OF LAW IN 19823 ACTIONS UPON EN BANC REHEARING The record supports that the 16 respondents did not raise the issue of probable cause as a matter of law until, Following the Eighth Circuit's granting their Petition for Rehearing En Banc, they proposed this new position in their Supp lementa] Brief in Support of Rehearing En Bank at page iv. STATEMENT OF THE ISSUES | V IN A 1983 ACTION PROBABLE CAUSE !S__ VIEWED OBJECTIVELY AND MAY BE FOUND TO EX!ST EVEN THOUGH THE OFFICER FELT HE DID NOT HAVE PROBABLE CAUSE. DETENTION UPON REASONABLE SUSPICION 1S NOT UNLAWFUL |F FOR A REASONABLE PERIOD oF TIME AND FOR LEGITIMATE INVESTIGATIVE PURPOSES. Emphasis supplied. The four judge olura 1ty took the respondent's bait, Siving the Lince'r police not just the “two bites of the apple," Llaguno y. Mingy, 763 F.2d 1560, 1569 (7th Cir. 1985) (en banc), cert. dismissed U.S » 1873.3. 6 6, 92 r- m Oo nh QO a | OO (J ~. © oO Oo) NN ctr J fp ct cr J rt) @ iJ + ¢ O 4 > we ¢ 4 ¢) C/O ETT the defense ot section 1983 action policy, not state policy. Landrum v. Moots, 576 F. (footnote 16) (8th Cir. + 2d good fait rests on fede . 1978). NEBRASKA REVISED STATUTE Section 99-427 FAiLS CONSTITUTIONALLY AS INTERPRETED BY THE CITY OF LINCOLN, Lincoln ~ Leitne Linco _ Do! r testified In pol that AND THE POLICE OFFICERS ice Chief Dean en et onl] an ae! wWUuaA: i jce department policy officers were trained to detain indiv1 duals violations regarding other matt investigation. stated that a po! should take an custody to question him 11 officer has reasonab that that individual! crime. Appendix B at 38-40 Lincoln's custom of arrestees for investigator "reasonable suspicion grou « £ supported by the statute arrestees arrested + t - 5 . For questioning ers unaer for tra Fic eitner also jce officer le s committea a individual int £ detaining traff - Y , - OTHER CRIMES, the obvious gloss that the district court, the police officers, and the City of Lincoln added to the statute. This gloss defeats the constitutionality of the statute. lf the statute permits officers to detain arrestees ", ; tO carry out legitimate investigative Functions" RELATING TO THE CRIME FOR WHICH THE DETAINEE WAS ARRESTED, then the statute is consitutional. Where a statute is susceptible of two constructions, under one of which the Statute is valid, while under the other it is unconstitutional or of doubtful validity, the Nebraska Supreme Court will adopt the construction which gives the statute validity. State vy. Evans, supra. Appendix 8B at 46. The Nebraska Supreme Court has already generally agreed with the pane] Opinion. We agree fully with the statement, relied on by defendant, set out in United States yy. Lefkowitz, supr [ay 27 that "“[a]n arrest may not be used as a pretext to search for evidence." That proposition has been widely accepted in various courts across the nation. See Warren v. City of Lincoln, Neb., 816 F.2d 1254 (8th Cir. 1987), reh'g en banc granted 825 F.2d 176, and cases cited therein. Ne have no genera! disagreement with the statement in Warren, 816 F.2d at 1257: “An arrest ostensibly for one purpose but in reality for the primary purpose of furthering an ulterior goa] is unreasonable under the fourth and fourteenth amendments [to the U.S. Constitution].” State v. Vann, 230 Neb. 601, 605, N.W.2d : (Sl. Op. December 16, 1988) (Emphasis Supplied). RIGHT TO COUNSEL The plurality's reliance on Kirby v. lllinois, 406 U.S. 682 (1972) to deny Warren's Sixth Amendment right to ccunse! is clearly erroneous. Warren was ir custody on a warrant to arrest him for speeding and failing to appear, a jailable offense. Indeed, he most certainly was subject to adversary judicial criminal proceedings! 28 MUNICIPAL LIABILITY Under Monell] v. New York City Dept. of Social Services, 436 U.S. 658, 690-69] (1977) the City of Lincoln is clearly liable to Warren for damages resulting from his unlawful detention resulting from the unconstitutional "custom" of the city’s training her officers to detain traffic warrant arrestees for questioning on unrelated felony offenses on a mere showing of “reasonable suspicion." CONCLUSION Most importantly, this Court must grant certiorari to address the blatantly unconstitutional custom of the City of Lincoln to detain ererrTic warrant arrestees for investigative purposes on Felony offenses absent probable cause; the blatantly unconstitutiona! denial of counsel to a person detained in custody on a jailable offense; the injustice of 29 the plurality’s reaching the primary issue, an issue never before decided by this Court.; the concurring opinion's unconstitutional affirmance of a judgment based on unconstitutional! jury instructions. Warren's constitutional rights nave been violated. Warren is obviously innocent of al} the felonies the respondents were investigating. Innocent £'4ncoln and the citizens of the City oc State of Nebraska wil! continue to suffer similar constitutional violations at the whim of police officers trained to detair them for felony investigatory purposes absent probable cause. mes R. Mowbray ounsel for Petitioner 30 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 86-1434 Jackson Warren, * Appellant, * x v * Appeal! from thre x United States * District Court for City of Lincoin, * the District of Nebraska; James * Neporaska. Breen; Sancra L. * Myers and David = M. Beggs, > Appellees. * Submitted: September 15, 1987 Filed: January 4, 19893 Before LAY, Chief Judge, HWEANEY, McM!ILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN , WOLLMAN, ana MAGILL, Cirewit Judges, en banc. WOLLMAN, Circuit Judge. Jackson Warren filed this suit under 42 5 ye oa Section 1983 (1982) against the City of Lincoln, Nebraska (the City), and three Lincoln police officers. At the close of Warren's case- in-chief, the district court! dismissec the action as against officer Sandra L. Myers and the City. Upon the conclusion of the trial, the jury returned a verdaict in favor of the remaining defendants, officers James Breen and David Beggs. After nearing the case en panc,2 we atT tem: . At approximately 4:30 a.m. on Aor 13, 1985, Lincoln police officers responded to a cali from aoman-~ wh claimed someone had just attempted %& 1The Honorabie Warren K. Urbdbom Chief Judge, United States District Cour: for the District of Nebrasxa. 2Tnhe panei opinion of this cour filed previously, Warren v. City oOo Lincoln, 816 F.2d 1254 (etn Cir. 1387) was automatically vacated wnen th petition for rehearing was grantec. 2 break into his apartment through a second story window. The man described the intruder, who had fled the scene on foot toward the east, as a slender white male in his early twenties wearing a white short-sleeved shirt. One of the officers who responded to the cal! was teamed with a police dog, which tracked tne intruder'’s scent east from the crime scene to Jackson Warren's parked car four and one-half blocks away. Warren isa slender wnite male who at the time of the Incident was nineteen years Olid and wearing a jlight-colored short-sleeved shirt. As the police approached tne car, Warren started his engine and attemptecd to drive away. A police officer flagged Warren down and told him to park his car. Officer Myers then approached Warren in nis car and asked for some 1adentification. Sne briefly questioned Warren and then ran a check on Warren's license from her squaa car. She discovered an outstanding for failure warrant for Warren's arrest to appear on a traffic violation. Myers arrested Warren on the failure-to-appear warrant, performed a pat-down search, and put him in her squad car. Myers took Warren to tne Lincoln jail complex and turned him over to Detective Breen at approximately 5:90 a.m. Breen had deen Investigating a series of burglaries and sexual assaults that naa some similarities to the Apri! 13 attempted burglary. Breen questionec Warren on his background and on nis whereabouts earlier that day, ct @ p) @ Warren that ne was questioning Aim cr connection with recent prow: ing incidents. At one point auring tne questioning Detective Beggs entered tne fp ~ Ol anc eo) shoes, looking denied ttorney and ne Incoln WW ct wy Oo wo O @ th ct ct O O O h om ct ry) O Warren' 1d or Ss tt off ne fin ted ren hh — ‘a photographs. nan Warren’ trace evidence. w VY requests er Breen nor lcer read War ct W gerprints mw Durglary, O ~ ee L£ Ss ’ QO inger re ee mug W”) ww { @ b> (Q ey ce) af) W) uw an’ (. Arizo oO mM Y O O @) W) O (D 40) 4) Mm @ fv O 8) C c 4) © \) 4? ( (rt ' C J i U0 © wv 42 ©) @ 4) ¢ wo wow b wW”) 4? « 4 a ‘ Q wo Q f-- « O Ww O 4 o “) U ¢ uy wv 4 4 O 4 wo = o O @) epartmenvt a “ a) 3) 4) 4% wo O 42 0) -~ 4 @ ana “) ~ rr - 2) Ve D “) different level of detention. The first category consists of consensual communications between officers ana citizens, invoiving no coercion or restraint of liberty. Such encounters do not constitute seizures and thus are beyond the scope of the fourth amendment. See Florida v. Royer, 460 U.S. 491, 497 (1983). The second category is the so-ca!'ed Terry stop, see Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Florida vv. Royer, 460 U.S. at 498-99, pursuant to which § an officer having reasonabie suspicion that a person has committed or is about to commit a crime may temporarily seize the person for limited investigative purposes. Finally, there are full-scaie arrests, which must be supported by probable cause. Po°t’e", 818 F.2d at 682. Ai! agree that the officers. facts and circumstances surrounding Warren's arrest, however, is fully developed in this case, and those facts and circumstances are uncontroverted. When the issue of probable cause arises in a damage suit and "the facts are not disputed or are susceptible to only one reasonable inference, the question is one of Taw. for the «: court... Sion eee eee oo) ) U ‘. 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U Cc = w > 3 @ = U O h jy ») a + @ > J 3 jw QO Oo © ” y ww OQ O yp t ct D) @ ct O jv 2) $v — @ QO 2) ct @ .— ey) ~m O (D y) 2) ct O O ( B) fv ct Ln) ct 2) Q (D ey @ ct WY 1 f3) D -rsr LracK th "$s W) ct O was The major at the police scent, ‘led car.” The more reliance a track ina ficers on tne lexander, the police dog, feel he could on the track. gasoline, any ana Ne scent fere with the 446) TAUS, pment, a jury that the dog ne ntruder reasonably conclude that the dog track was Inconclusive as to Warren's culpability. Finally, the majority points to the fact that Warren attempted to leave the area when ne saw a police o Warren explained at trial that he started @ to turn his car around pecause tnere wer - + -_ ~~ on ae - + ~ £ a {to .@) DO Ce Cars at ne corner o 20th & C Streets, and he w nteq to avoid “the mess." (T. 18). As stated in the Deary case, wnetner this activity gave the reasonable perception of 19Nt is a matter which must be ‘left to the judgment Of the jury Tnese facts, taken as a whole, are not susceptible of only one inference A Jury could reasonably draw the conc!iusion that the gescription of the intruder was too general, the qcog track ere Unreliable, and tne attempt to eave the area too amb 1guous to constitute objective evidence of probable cause.‘ In section B of its opinion, the majority states, "We thus must determine whether the facts available to the officers objectively gave rise to probable cause to arrest Warren for attempted burglary.’ Assuming, witnout deciding, that this objective standard 15 appropriate, it remains clear that it ‘5s not for this Court to sit as fact-finder, as the majority clearly does.°® 4The case cited by the majority as support are inapposite, as they are cases in which courts had to directly review criminal arrests. None of the cases involved factual determinations by = an appellate court in section 1983 suits. Sin section C of the opinion, tne majority concludes that probable cause existed to warrant Warren's” arrest for attempted burglary. The majority does not say that probable cause exists because the facts are susceptible to oni one reasonable inference. nu conclusion can only be categorize statement of fact. 4 — > Eero 38 In light of the fact that we cannot nor should not say that probable cause existed as a matter of law, this Court should refuse to consider the issue raised py the appellees for the first time in its brief on rehearing en banc.6é 6 Th Supreme Court of the United States has stated that "[t]he matter of what questions may be taken up and resolved for the first time on appea! is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121, 49 «SG. 26. 326, 86> “3. Ce. 2868, 49 L.Ed.2d 826 (1976) (federal appellate court is justified in resolving an issue where the proper resolution is beyond any doubt, or where an injustice might otherwise result). In Singleton, the Supreme Court chastised this Court, Nowever, for addressing an issue on the merits when one party had had no opportunity to develop or defend its position on the issue at trial level. Lae, This Court has held, as a general rule, that we wil] not consider arguments. or theories on appeal that were not advanced in proceedings below, unless the issue can be resolved as a matter of law, the pertinent record nas been fully developed, and the opposing party had notice that the specific issue would be raised. Wright v. Newman, 735 F.2d a ge ee 1076 (8th Cir. 1984). -39 lf the majority feels compelled to reach the probable cause issue, the most it should do is remand the matter to the district court with directions for a new trial, at which time both parties would have an opportunity to present evicence on the issue. The district court then should submit the issue to the jury with appropriate instructions unless it found the evidence insufficient to create a jury question. The appellees asked tnis Court to reverse the panel decision on the issue of pretextua|! arrest ard qualified immunity. As the majority does not rest its decision on either of these lega! , theories, | will not repeat my discussion in the panel opinion, except to say that | continue to believe that it correctly states the law in this Circuit. | must, however, comment on Neb. Any -U Stat. Rev. Section 29-427 and the appellees’ interpretation of it. Neb. Rev. Scat. Section 29-427 provides in pertinent part: Peace officer; grounds for arrest; detention of accused; grounds. Any peace officer naving grounds for making an arrest may take the accused into custody or, already having done so, detain him further when the accused fails to identify himself satisfactorily, or refuses to sign the citation, or when the officer has reasonable grounds to believe that * * *(3) such action is necessary in order to carry out legitimate investigative functions * * %, Neb. Rev. Stat. Section 29-427 (1983). Nad no probable cause to arrest Warren for attempted Durglary, section 29-427T( 3) gave them the authority to make an arrest based on the traffic warrant and to detain Warren for questioning with regard to the separate crime of attempted burglary. Not only 1s such an interpretation contrary to the plain language of the statute, but it also renders the statute unconstitutional. As | read this statute, a police officer may detain anyone legally arrested if the officer reasonably believes it necessary to further investigate that person's role in the crime for which he was arrested. !t does not grant police the power to make a legal arrest and to detain that person for questioning with regard to a separate crime when there is no probable cause to make an arrest for that crime. Neither the language of provision (3) nor the overall | tenor of the statute warrants such a sweeping interpretation. Furthermore, the appellees’ interpretation would render Neb. Rev. Stat. Section 29-427 unconstitutional. Police are not permitted to hold someone in custody beyond the time necessary to 42 process him with respect to the crime of arrest for the sole Purpose of trying to connect that person to another crime. To do so is an unlawful seizure. See Adams vy. United States, 399 F.2d 574 (O36. Cie, 1968), cert. denied SUBD nom. Roots y. United States, 393 U.s. 1067, 89 S.Ct. ted, 21 &. 8622 Fis (1969). In Adams, individuals arrested for robbery, brought to the Robbery Squad _offices at Police Headquarters at 2:00 p.m. and booked at 4:00 p.m., were then PUT IN lineups for other crimes as to which there was no Probable cause to arrest or to detain them. The court excluded the results of the lineups as the incident of an unlawful arrest and custody for interrogation. The court explained: Here, the lawful basis for appellants’ arrest and detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. 43 There was no probable cause to detain them under arrest for other matters. Rule 5(a) provides that presentment without unnecessary delay shal] be made on the charge for which they were arrested. To continue their custody without presentment for the purpose of trying to connect them with other crimes is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal] detention. x * * * On the precise facts shown Dy this record, we think the effect of Rule 5(a) is to convert at least as of 4:00 p.m. ib the afternoon of appellants’ arrest, their continue detention at the police station in an unlawful arrest without probab’ cause in respect of the crime for which they were convicted. “x @ BS An arrest made on probable cause can bring a man lawfully into the hands of police, but that detention does not, absent compliance with Rule 5(a), continue to be lawful for a!1 purposes, including the investigation of his possible connection with other crimes. 399 F.2d at 577-78 (footnotes omitted) ; see United States v. Poole, 495 F.2d 115, leas §6 | §©6t(®.Gy SIF. 1974) (Leventhal, ies concurring) (unnecessary delay after arrest is evidence of involuntariness) 44 cert. denied, 422 U.S. 1048, 98 $.Ct. 2667, 45 L.Ed.2d 701 (1975); Commonwealth v. Lumb, 430 A.2a 1188, 1190 (Sup.ct. Pa. 1981). The words of former Chief Justice, then Judge Burger, in his concurring Opinion are instructive: To my mind, the importance of the investigation of crimes other than that for which the original arrest was made is not that there may be something resembling a new “arrest,” but that the period of “unnecessary delay" forbidden by Fed. R. Crim. P. 5(a) has then been reached. Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same limited preliminary investigation into his connection with the crime for which he was arrested, especially when it jis directed to possibly exculpation of the one arrested. However, when delay of presentment to the magistrate is for the purpose of investigation of other crimes, then there is no doubt that the “delay” has become "unnecessary." Adams _v. United States, 399 F.2d at 579 (Burger, J., concurring) (empnasis in original). | believe that holding a= person beyond that time necessary to process him for the crime for which he was arrested 45 S that person investigate nr “ ndment Ame @ 0 4 O ~ rim ‘ V4 Pe an or S enw, Am 00) 4 O 2) O 4 trarric warrant for the purpose of investigating the attempted burglary is not justifiable under Neb Rev. Stat. section 29-427 and would constitute an unlawfu seizure based solely on reasonable Suspicion o f the sort prohibited in Dunaway Vv. New York, 442 J.os euu, 2s S2ce 2248, 60 L.Ed.2d 824 (1979) and Florida Royer, 460 U.S. 491, 1S «6-3. Ct 1319, fe L.€¢.26 -225 (1983).? A true copy Attest: ChLonmnk; w.s COURT OF APPEALS, EIGHTH CIRCUIT ’The normal procedure for processing a person who fails to appear for a traffic violation entails taking him to a correction officer, booking him, setting bond and releasing him promptly upon payment of bond. The jury should have been instructed that if Warren was held beyond the time necessary to process him, tnen the detention was an unlawful one © © a>) i j : ( . n ry > ao » 4 ‘ © N 2) | / ¢ O s++o +oenr + . é +hrotr sres - ~ SC 4> \ = afiod - - — ~~ a - re = $ nerecor ~=7ne a « =| > >€ rae - bd eR — > Yawe eyec rT ane ar arres* arran* = - — a — _ = —— Wa _— ~ _— = ~ - ~a an + ~ ~~ - ~ ~ +> —T . «a ~~ e gent ‘ =| =| est © se seizure wer ¢ neig . SOnst . . o o - - on a + — on an & hn 2ecause a a esv a Ot DE U rex ft Oe searcr ror e “~ o o = - . . > ea ws e = uf = = 3 ‘1f9 av —o ~ 4 aC Sree The ele ~o = aM avec S » ~ J ~S > Taalavar a € nnecaceina ~ aGiavore * possess = = ~_> =~ ~ - c* ~ae *- mn ~ ~~ ~ _ ~-igaretvvces, arrvrempvrcec ae exe + — - + ot a ere r Or es MmImInor a esv wa ant 2 LWwoO « | ~- AK ~~ Arr = — « = = vio !avions orce ae searc "“nranw ne - A ~ — er ~~ CcCiqaenev ae ~eNart a Sst 4 . ~- - — -_- ~ ~ — aitercation, police seizec mariju Taglavore, and ne was sudsequent ct and convicted. On appeal, reversed and remanded, reasoning police used the traffic warran \) Ww W) @ sv sv) y @ ct @ sv excuse to search the appellant marijuana cigarettes and ne 13 d Ac wi ea ww ay h ct — ~ ww YW) vy ct oO w W wo QO Ww O th wD ry bu) ct @ jw t 2) ( O th W) O wihere the arrest Ont being used as a search, the arre SUING search are - The facts whic aracterization of tne traffic war cluded |) routine o affic offenses cause traffic © rmally taken into tne officers t ~ _— a =~ + r ] sumed tnat _aope garettes in his DO 'eave inference than that was done with the + warrant here. Were Misdemeanor arrest 5 els > - 2 > S mm id e?F > a - edqcs A -3a i ~~ + aat —' — iow — — —=— er abe ant O ( ( @) * U cr oO oO ” ” @ ” 7) a cons uge can no oth this raffic the u warrar, W ty) rt) QD O wo pretext for searching peop Suspected of felon: 14 es to D ~~ elf = oats - 1 YNULEeEC ee empted - —— S pre ) = @ @: oO © ey) >) ct ct C ct 4 * e ww ct Ww J O N @ ct ~ = i a a - L » al 4G a ~ ~- rres - -_ x - ~Ua ‘s S ‘as ~) / ¢ i Owe ~— O ee P ie > wa i nr gua ww © iw ct ct W) \v @ permitted, a mockery could be made of the Fourth Amendment and its guarantees. The courts must be vigilant to detect and prevent such misuse of legal! processes. 291 F.2d at 266. Lefkowitz and Taglavore present situations where an arrest warrant is executed to justify an otherwise unlawful! search as a searcn incident to that arrest. Nonetheless, we find the reasoning of both cases applicable in the context of an arrest warrant executed for the purpose of justifying detention and interrogation for another crime under investigation. Applying the aw to the facts of this case, we believe the actions of the police in arresting Warren may have violated the fourth amendment. The jury oe could we have found that Warren's arrest was improper ly motivated, undertaken not in furtherance of 13 ia) oO a uy oO {2 ®” , } {2 ?) ”) yy) , @® t f \ 4) @ 4 © G ~ 4 , } , O w i © 4/7 , t 4? We) 5 t S Y” ‘ \) 4? 4 " 0 c G © « \) ® G _—_ @ © 4/7 “) wc oO “” iJ? ws i? _ a vs mw q@) 2) Thus, although the police concede they did nct have probable cause to believe Warren had committed the crime, it is clear that they had reasonable suspicion based on his physical appearance, the location of the vehicle, his turn around upon their approach, and Lhe dog track to justify an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Warren's driver's license. Fin Q 3 © + J @ outstanding warrant, trey could have arrested him for the traffic violation and processed him through normal! channels w oursuant to tnat warrant. a question here whether that was their purpose or whether they arrested nim so 3Norma’ procedures would nave entailed taking Warren to correction officers, booking him, setting bond and releasing him promptly upon payment of bonc. that they could bring him to police Neadquarters and question him about that evening's attempted burglary and the recent sex-related burglaries. The evidence shows’ that interrogation about the burglaries may have been the reason for the arrest. For example, Myers Drought Warren to the jai comp 'ex and Immediately turned him over to Detective Breen, whom she had in the past aided in Investigating the sex-related burglaries. in her testimony, Myers explained why she turned Warren over to Breen: "' just felt that further questioning by somebody who was more familiar with the cases [the other burglaries] themselves could eliminate or possibly give us further--a further suspect in the cases.” Myers never told Warren why he was being detained and questioned. Warren waited approximately fifteen minutes before he was led to an interrogation room by Detective Breen. Breen testified at his deposition as to why he interrogated Warren: Well,* * ¥*some officers had indicated that the police dog had made what they felt was a less than satisfactory trail to his car, * * * a trail that they didn't feel comfortable arresting him for the offense based solely on the track and they therefore made contact with him in the car and they had a warrant and they knew that | was involved in * * * investigating * * ¥* several] attempted sexual assaults * * * that would technically be categorized as burglaries that we thought were sexually motivated burglaries and | guess it was their feeling that it might be beneficia! for me to talk to him reference those cases. Breen initially asked Warren for his name and address, about his work and schooling, where he was that evening and who he had been with. But there is evidence to indicate that the purpose of 2 the detention was not limited to the outstanding traffic infractions. Warren asked if he was under arrest, and Breen said that he was. When Warren asked what he was being questioned for, he was told a “prowling incident." When he asked to Speak to a lawyer, Breen told Warren that he did not have a right to a lawyer unti] ne was formally accusec of being a prowler. When Warren then asked to make a telephone call, Breen informed Warren that he would have to wait to make his call until Breen was through questioning him. Furthermore, in the middie of questioning Warren, Breen abruptly turned to the Subject of Warren's’ sexual preference. According to Warren, the interchange was. as follows: Breen queried: “Warren are you gay?" Warren asked him why he asked that question. 20 Breen replied that he had been in the business fifteen years and could pick up on these things. When Warren asked him what he meant, he said You people have your way of walking and talking differently. What it 1s, your theater background?" Warren said, “So you're saying that the Lincoln Police Department bases their decision on sucn assumptions? Breen got mad and said, "Just answer the question, Warren. Are you gay or not.” Warren told Breen ne ‘could give him the names and addresses and telephone numbers. of several women throughout the City who would say whether he was gay.” That Warren may have. been arrested for investigative purposes rather than on the traffic warrant is further evidenced by the testimony of Sergeant David Beggs. Beggs, a ballistics expert who had seen 21 at the scene of the attempted burglary gathering evidence, arrived at the jai at approximately 6:00 a.m. He testified that he knew Warren was a suspect in the attempted burglary under investigation: Beggs: 1 knew that Mr. Warren had been taken into custody. @: As a suspect in this attempted burglary? Beggs: To a certain extent, yes. Upon arriving at the jai!, Beggs went to the room where Breen was questioning Warren. Beggs testified that he examined the bottoms of Warren's shoes and Warren's hands "to see ‘f they were dirty or had any trace evidence from the roof" of the house where the attempted burglary occurred. Breen then took Warren to the identification bureau at the police station. Instead of taking routine prints of the tips of Warren's ten fingers, as would be done for traffic 22 ~~ offenses, Beggs did extensive printing of Warren's hands, including the palms, the sides of the hands, and the sides of each finger. Beggs explained that "[i]n some cases, particularly in involved cases [such] as a series of sexual assaults that we've already talked with other officers about, further hand prints are desired because everybody when they grab something dol[es] not necessarily grab it with the end of their finger." Mug shots and several] Polaroids were also taken of Warren. Warren then asked if he coul use the phone and if he was still a suspect in the prowling incident. Breen told Warren that he was no _ longer the main suspect. After Breen left, Warren went to the desk and was told he could use the phone and could leave if he paid $50.00. Warren posted bond and went home. rs 23 On the basis of these facts, a jury could have concluded that Warren's arrest on the traffic warrant was nothing more than a subterfuge or pretext executed to get Warren into police headquarters to be questioned about an unrelated matter and as such was unlawful. Accordingly, the trial court erred in not instructing the jury on the law of pretextual arrest and in dismissing the complaint as to Officer Myers. On remand, the jury should be Instructed on the law of pretextual arrest. 2. Unlawful Detainment. Even assuming that the Lincoln Police arrested Warren for failing to appear on a traffic warrant, the due process instruction incorrectly stated that the officers were justified in detaining Warren beyond the time necessary to process him on that warrant. 24 Police are not permitted to hold someone in custody beyond the time necessary to process him with respect to the crime of arrest for the sole purpose of trying to connect that person to another crime. TO do so is an unlawful seizure. See Adams v. United States, 399 F.2d 574 (D.C. Cir. 1968), cert. denied sub nom. Roots Vv. United States, 393 U.S. 1067 (1969). in Adams, individuals arrested for 4 robbery, brought to the Robbery Squad offices at Police Headquarters at 2:00 p.m. and booked at 4:00 p.m., were then put in lineups’ for other crimes as to which there was no. probable cause to arrest or detain them. The court excluded the result of the lineups as the incident of an unlawfu } arrest and custody for interrogation. The Court explained: Here, the lawful basis for appeliants' arrest and 25 detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. There was no probable cause to detain them under arrest for other matters. Rule 5(a) provides that presentment without unnecessary delay shal! be made on the charge for which whey were arrested.* * ¥*To continue their custody without presentment for the purpose of trying to connect them wit other crimes is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal detention. x * * * On the precise facts shown by this record, we think the effect of Rule 5(a) is to convert at least as of 4:00 p.m. on the afternoon of appellants' arrest, their continued detention at the police station into an unlawful arrest without probable cause in respect of the crime for which they were convicted. If is not, thus, the precise scope of the Mallory exclusionary rule which is determined here but, rather, the sweep of the general policy of excluding evidence gathered 26 during a period of detention following upon an unlawful arrest. * *« * * The concept of what is, in legal! contemplation, a “divisible detention" is not, in our view extra-ordinary. Indeed, it seems to be a necessary one if the subversion of the purposes of Rule 5(a) is not to be made the handmaiden of the constitu- tionally defective arrest for investigation. 399 F.2d at 577 (footnotes omitted). See United States v. Poole, 495 F.2d 115, 125 (0.¢C. Cir. 1974) (Leventhal, cP concurring), cert.denied, 422 U.S. 1048 (1975); Commonwealth v. Lumb, 430 A.2d 1188, 1190 (Sup. Ct. Pa. 1981). The words of former Chief Justice, then Judge Burger in his concurring opinion are instructive: To my mind, the importance of the investigation of crimes other than that for which the original arrest was made is not that there may be something resembling a new “arrest,” but that the period of "unnecessary delay" forbidden by F.R. Crim. P. 5(a) has then been reached. Necessary delay can reasonably relate to time to administratively process an accused with booking, finger- 27 EE printing and other steps and sometimes even to make some limited preliminary investiga- tion into his connection with the crime for which he was arrested, especially when it is directed to possible excul- pation of the one arrested. However, when the delay of presentment to the magistrate is for the purpose of investiga- tion of other crimes, then there is no doubt that the “delay” nas become “unnecessary.” [Emphasis included. ] 399 F.2d at 579. We find the rationale of the Adams Court persuasive. Thus, assuming that the arrest was proper, the jury could have found the detention for the purpose of trying to connect Warren with the attempted break-in was illegal]. The jury could have found that the detention was an unlawful seizure based solely on reasonable suspicion of the sort prohibited by Dunaway v. New York, 442 U.S. 200 (1979), and Florida v. Royer, 460 U.S. 491 (1983). 28 The jury should have been instructed that if they found that Warren was held beyond that time necessary to process him with respect to the traffic warrant to investigate him about the attempted burglary, a crime which all three officers admitted that they did not have probable cause to hold Warren on, then that detention was an unlawfu! one. B. Qualified Immunity. The second issue is whether the trial court's qualified immunity instruction was erroneous.‘ 4The trial court deliverec the following qualified immunity instruction: if it is determined that a defendant in the course of his duties did violate Jackson Warren's constitutional! right to due process of law, as defined by these instructions, that defendant nevertheless will have a complete defense to his actions in this suit, if he shows by the greater weight of the evidence that in carrying out his duties with reference to the conduct involved in the case he had to exercise judgment and discretion and that his conduct was in good faith. Good 29 Jackson Warren contends that the instruction erroneously omitted the objective component of the qualified immunity defense. Warren's objection misses the mark because the instruction does contain an objective component. Nevertheless, because this case must be retried, we now make it clear that the question of whether the defendants are entitled to qualified immunity is a question of law to be determined by the trial court. 7 - in Harlow v. Fitzgera!d, 457 U.S. 800 (1982), the Supreme Court estab!ished an objective test to determine if an faith means without malice and reasonably believing that what is being done is lawful under all the circumstances then known or which reasonably should have been known. A police officer does not act in good faith if he knows or, as 4a reasonable police officer, should know that his acts probably will result ina deprival of someone's constitutional rights. official is entitled to qualified immunity. if the plaintiff alleges facts that demonstrate a constitutional violation, the court may determine, at the summary judgment stage, whether the alleged conduct violated clearly established law of which a reasonable official would have known. 457 U.S. at 818. Once a court determines as a matter 5 of law that a legal standard governing the governmental action at issue was clearly established, there is no qualified immunity. The factual question whether the officer's conduct vio’ated the established constitutiona! standard is resolved by the jury at trial. See Davis _v. Scherer, 468 U.S. 183 (1984); Mitchel! v. Forsyth, 472 i Sil, (1985), Creighton v. City of St. Paul, T66 F.2d 1269 (8th Cir. 1985), cert.granted sub nom. Anderson Vv. Creighton, i. # , G6 $.Ct.. 3292 (1986);5 Liaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) (en banc), cert.dismissed, U.3. , ee 2.08. 16, 92 L.Ed.2d 783 (1986); and Moore vy Marketplace Restaurant, ine. fa4 *.2¢ 1336 (7th Cir. 1985). The district judge in Liaguno instructed the jury on the issue of immunity: “The law allows a defendant to defend a charge of unconstitutional entry faith belie by claiming a_e good under the circumstances, 1t was reasonable to enter the Liaguno house without a warrant. The defendant also Sin its appea! to the Supreme Court, the government argues that the existence of a settled legal principle is not dispositive of an immunity defense. It argues that a second question must be csked before immunity will be determined and that is whether the official reasonably should have known that his & eA conduct was unlawful under the particular circumstances. y Le, ~~ & must was directed the court on remand to determine the prove that such good faith belief reasonable.’ The Seventh Circuit found error and issue of immunity: The issue of immunity is redefined in Harlow is whether wnen the defendant violated the plaintiff's rights the law appeared to authorize the defendant's misconduct. This is an issue of law, for the judge to decide. What the defendant believed, an issue of fact, is neither here nor there. The good sense of Harlow in withdrawing the issue of immunity from the jury 1s particularly evident in a case such as this, where the police are charged with having acted without probable cause. The question whether they had probable cause depends on what they reasonably believed with reference to the facts that confronted them, as the judge instructed in the passage we quoted earlier. To go on anc instruct the jury furtner that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reason- ably is to confuse the jury and give the defendants two bites of 32 the apple. Llaguno, 763 F.2d at 1569. Senior Judge Floyd R. Gibson, of this Circuit, expressed a similar view in Moore v. Marketplace Restaurant, 754 F.2d at 1361. Judge Gibson, concurring with Judge Posner on this point, stated: The question of [the police officers’ immunity may be decided as a matter of Jaw and need not be submitted to the jury. It is clearly established that the Fourth Amendment requires that officers have probable cause for an arrest. Thus, if in this case there was no probable cause for the arrests, an issue to be determined by the jury, then there is no immunity under Harlow, for the official defendants. Because we agree with the en banc decision of the Seventh Circuit, we hold that it is for the trial court in this case to determine whether the officers are entitled to qualified immunity. On remand, the jury should initially 34 determine under proper instructions whether the arrest of Warren was 42 pretext employed to gather evidence of unrelated crimes. \f the jury determines that it. was a pretext, then the district court should determine whether the law prohibiting pretextua| arrests was clearly establishec <1 1985.§& i? the jury finds that the arrest was not pretextual but rather a lawful arrest pursuant to a traffic warrant, then it should determine whether Warren was detained beyond the time necessary to process the traffic offense for questioning on an unrelated matter. the Sury determines that he was so detained, then the district court should determine whether the law prohibiting such a detention was clearly established 6See United States v. Lefkowitz, 285 U.S. 452 (1932); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961). 35 in 1985.' The jury should finaity determine whether the officers continued to question Warren after he requested counsel. lf it answers this question affirmatively, then the district court should determine whether the law prohibiting continuec custodia! questioning after request for counse! was clearly established in 1985.8 C. Municipal Liability. Warren's final argument is that the district court erred in dismissing the complaint as to the City of Lincoln with prejudice at the close of his case-in- chief. Warren asserts that the jury £ could have found liability on the part o: 7TSee Dunaway v. New York, 442 U.S. 200 (1979); Adams v. United States, 399 F.2d 574 (D.C. Cir. 1968), cert.denied sub nom. Roots v. United States, 393 U.S. 1067 (1969); Neb. Rev. Stat. Section 29- 427. 8See Edwards v. Arizona, 451 U.S. 477 (1980). 36 the city because he proved at trial, through the testimony of the chief of police, that the City of Lincoln failed to train its police officers properly and that this failure caused his injuries. + Municipalities may be sued “for damages under section 1983 when "the action that 1s alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers" or is “vietted pursuant to governmenta! ‘custom' even though such a custom nas not received formal approval! through the body's officiai decisionmaking channels. , Monell v. New York Department of Socia Services, 436 ine 658, 690 (1978). Municipalities are in no way immune from liability from constitutional violations. Owen v. City of tndependence, 445 U.S. 37 622, 657 (1980). lf a municipality fails to train its police force, or if it does SO in a grossly negligent manner so that RY inevitably results in police misconduct, the municipality may fairly be said to have authorized the Violations. Patzner yv. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985); Kibbe v. City of Springfield, 777 F.2d 801, 804 (lst Cir. 1985), cert.dismissed sub. nom. City of Springfield v. Kibbe, |e. F 1a? .4. St. 1114 (1987); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981); Leite v. City of Providence, 463 F. Supp. 585, 590 (D. R.I. 1978). Here, Chief Of Police 8B. Dean Leitner testified that he was responsible “for the administration of the Lincoln Police Department, the perpetuation of all rules and regulations, policies and procedures, and adherences to them." 38 Leitner testified that pursuant to Lincoln Police department policy, officers were trained to detain individuals arrested for traffic violations for questioning regarding other matters under’ investigation. He testified: a lf an officer has reasonable grounds to believe that the individual may be involved in some other offense he certainly would interview the person regarding that. That may occur immediately following the arrest and quite often individuals are taken from the corrections facility following their incarceration and further interviewed pertaining to a case under investigation. Leitner also stated that a police officer should take an individual into custody to question him if the officer has reasonable suspicion that that individual committed a crime: fit]Jt's the duty of a police officer, if there is reason- able suspicion, to determine 39 whether or not that individual is responsible for that criminal offense. He has an equal duty to gather evidence that will free that individual, prove his innocence, as he does to prove his guilt. Q. What should the officer do, then? A. Interview him. Q. Are you saying interview him where the individual is found? A. No, |'m not saying that. Q. What should the officer do with respect to interviewing? A. \f he has reasonable suspicion he should take--detain him for questioning either there, or, if necessary, at police headquarters. Q. He should take him into custody? A. For the purpose of interviewing, yes. At the very least, these portions of of Leitner's testimony put into issue the question of whether the Lincoln police department failed to properly train its officers, and thus it was error for the trial court to dismiss the complaint as 40 to the city. On remand, the jury should be properly instructed on the issue of municipal liability. Reversed and remanded for a new trial consistent with this opinion. A true copy. Attest: LERK, U.S. COURT OF APPEALS, E!GHTH CIRCUIT. ne meee ene Mele pee ice Sd ee eee —— - —— a is = Para 2a SL -— amend —.. aie ee — freee - : : = : - ae 5 i; fu . i : Y) } : - - | ¢ | ‘ Ly I * ; . . it, . i. I * ; i i ; | . i : i" ’ i. - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1162%3A1. Public record. Not legal advice.