Vargas-Badillo v. Diaz-Torres

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1895



                                 LUIS VARGAS-BADILLO,



                                Plaintiff - Appellant,



                                          v.



                             ANDRES DIAZ-TORRES, ET AL.,



                               Defendants - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Daniel R. Dom nguez, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                              and Stahl, Circuit Judge.
                                         _____________



                                _____________________



               Peter  John Porrata,  with whom  Law Offices  of Peter  John
               ___________________              ___________________________

          Porrata was on brief for appellant.
          _______

               Sylvia    Roger-Stefani,   Assistant    Solicitor   General,
               _______________________

          Department of  Justice,  with whom  Carlos  Lugo-Fiol,  Solicitor
                                              _________________

          General and Edda Serrano-Blasini,  Deputy Solicitor General, were
                      ____________________

          on brief for appellees.


____________________



                                     May 30, 1997

                                 ____________________



TORRUELLA, Chief Judge.  Luis Vargas-Badillo ("Vargas")
                    TORRUELLA, Chief Judge. 
                               ___________



          brought this damages suit  under 42 U.S.C.   1983,  claiming that



          he was illegally arrested and subjected to excessive force by the



          defendants, two Puerto Rico police officers.1  The district court



          found that the defendants were entitled to  qualified immunity on



          the unlawful arrest claim,  and granted their motion for  summary



          judgment.   The court also determined that Vargas failed to state



          a  proper  claim  of excessive  force.    Vargas  appeals on  the



          unlawful arrest claim,  arguing that there was  no probable cause



          to support his warrantless arrest.2  We affirm.



                                      BACKGROUND
                                      BACKGROUND



                    In the summary judgment context, we review all material



          facts in genuine dispute  in the light most favorable to the non-



          movant, here Vargas.   Serrano-Cruz v. DFI Puerto Rico,  109 F.3d
                                 ____________    _______________



          23, 24 (1st Cir. 1997).  Vargas was one of three men who  were in



          a  Puerto Rico  Aqueducts  and Sewers  Administration truck  that



          collided   with   a  car   driven  by   Minerva  Delgado-Gonz lez



          ("Delgado").  After the collision, which took place at night on a



          hilly road, Vargas, Delgado, and Vargas' two colleagues agreed to



          meet at a nearby police station to report the accident.


____________________



          1  Vargas initially named as defendants an unnamed supervisor and

          Ismael Betancourt,  the superintendent of the  Puerto Rico Police

          Department.  The actions against these two other defendants  were

          dismissed through partial judgments, at which point the remaining

          defendant officers filed their summary judgment motion.



          2   On  appeal, Vargas  does not  challenge the  district court's

          determination  regarding  his  failure  to  state  a   cognizable

          excessive force claim. 



                                         -2-



At the  police station, the defendant  police officers,



          Andr s  D az-Torres and  Andr s Maldonado-Castro,  questioned the



          four  persons.   Delgado told  the officers  that Vargas  was the



          driver of  the truck -- a  fact that Vargas disputes  -- and that



          she thought  that he and the  other men smelled of  alcohol.  She



          also stated that the men had shiny eyes and staggered a bit.



                    When  the   officers  sought  out  Vargas  for  further



          questioning,  he   was  outside  the  police   station,  drinking



          something from a plastic cup.  After the officers asked  to speak



          with him, he threw down his  cup, entered the station, and  began



          smoking a cigarette.   When the officers  ordered him to put  out



          the cigarette, Vargas  stubbed it out with his  shoe on the floor



          of the police station.   Officer D az then told Vargas to dispose



          of  the cigarette in  a trash can.   Vargas denies  being rude or



          aggressive toward  the officers, although he does not deny having



          taken these particular actions.  



                    Immediately  thereafter,  the  police  officers  placed



          Vargas under arrest  for driving under the  influence of alcohol,



          under Section 5-801 of  the Puerto Rico Vehicle and  Traffic Law.



          P.R.  Laws  Ann. tit.  9,    1041 et  seq.   They  handcuffed and
                                            ________



          searched him before transporting him to a police station that had



          a working breathalyzer.   After the breathalyzer test indicated a



          blood alcohol level of zero percent, Vargas was released.  Vargas



          was  subsequently charged on a count of reckless driving based on



          the  same incident   -- a criminal charge  which was dropped once



          Vargas' insureragreed to payfor the damagescaused by theaccident.


-3-



The  district court  granted  summary  judgment on  the



          basis  of qualified  immunity.    In  so  holding,  it  made  two



          findings:   that  the defendants  were presented  with sufficient



          evidence to establish probable cause for Vargas' arrest, and that



          although the particular warrantless arrest violated a Puerto Rico



          statute, it did not violate any clearly established federal law.



                                      DISCUSSION
                                      DISCUSSION



                    We   review  the  district   court's  summary  judgment



          determination de  novo.  Ionics,  Inc. v. Elmwood  Sensors, Inc.,
                        __  ____   _____________    ______________________



          110 F.3d 184, 185 (1st Cir. 1997).



                    A.  The Qualified Immunity Standard 
                    A.  The Qualified Immunity Standard



                    The  doctrine  of   qualified  immunity  provides  that



          "government  officials performing  discretionary functions .  . .



          are  shielded from liability  for civil damages  insofar as 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  (1982).
                     ______      __________



          Defendant police officers are shielded if either of the following
                                                    ______



          holds: if  the federal  law  allegedly violated  was not  clearly



          established  at  the time  of the  alleged  violation, or  if, at



          summary judgment,  there is no  genuine dispute of  material fact



          that  would prevent a finding  that the defendants' actions, with



          regard  to applying  or following  such clearly  established law,



          were objectively reasonable.   See Stella v. Kelley, 63  F.3d 71,
                                         ___ ______    ______



          73  (1st Cir. 1995).  In effect, qualified immunity protects "all


-4-



but the plainly  incompetent or those  who knowingly violate  the



          law."  Malley v. Briggs, 475 U.S. 335, 341 (1986).
                 ______    ______



                    This appeal presents two distinct legal issues.  First,



          we  must determine whether the  warrantless arrest of a suspected



          misdemeanant,  where  the  misdemeanor   did  not  occur  in  the



          officers'  presence,  would  have  violated  clearly  established



          federal  law  as of  December 1990.    Second, we  must determine



          whether the officers acted in conformity with clearly established



          law under an objective reasonableness standard.



                    B.  The Clearly Established Law
                    B.  The Clearly Established Law



                    It  is not disputed that at the time of Vargas' arrest,



          clearly  established  Fourth  Amendment  law  required  that  the



          defendants have  probable cause  to  support Vargas'  warrantless



          arrest.  See Beck v. Ohio, 379 U.S. 89, 91 (1964).  Whether there
                   ___ ____    ____



          were adequate  grounds for making a  probable cause determination



          is addressed in the  next section.  However, Vargas  also appears



          to  contend  that  the   officers  violated  a  rule  prohibiting



          warrantless arrests  for misdemeanors  that do  not occur  in the



          presence  of  the arresting  officers.   We  must  thus determine



          whether such a rule was a clearly established part of federal law



          in December 1990, when Vargas' arrest occurred.



                    Vargas correctly points out that in Puerto Rico, such a



          rule exists.    Rule 11  of  the Puerto  Rico  Rules of  Criminal



          Procedure provides  that a  warrantless arrest for  a misdemeanor



          offense is only permitted where the arresting officer has grounds



          to  believe that the  misdemeanor was committed  in his presence,


-5-



whereas  no such  presence  requirement  governs the  warrantless



          arrest of felons.   See P.R.  Laws Ann. tit.  34, App. II,  R. 11
                              ___



          (1991).   Driving under the influence of alcohol is a misdemeanor



          in Puerto  Rico.   See  P.R. Laws  Ann. tit.  9,    1042  (1976).
                             ___



          Regardless of  whether the  arresting officers violated  Rule 11,



          Vargas  can  offer no  support for  the  proposition that,  as of



          December  1990,  this  provision had  a  clear  basis in  federal
                                                                    _______



          constitutional or statutory  law.  "Mere violations of  state law



          do not, of course, create constitutional claims."  Roy v. City of
                                                             ___    _______



          Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983).  
          _______



                    To  date, neither  the Supreme  Court nor  this circuit



          ever  has held  that the  Fourth Amendment  prohibits warrantless



          arrests  for  misdemeanors  not  committed  in  the  presence  of



          arresting  officers.     Into   this  silent  past,   a  "clearly



          established right"  cannot be retrojected.   Moreover, cases from



          sister circuits addressing  this very issue  have arrived at  the



          opposite conclusion.  See,  e.g., Pyles v. Raisor, 60  F.3d 1211,
                                ___   ____  _____    ______



          1215 (6th Cir. 1995) (arrestee  cannot recover under section 1983



          on  ground  that  officers  violated  state  law  prohibition  of



          warrantless arrests for  misdemeanors not committed  in officers'



          presence);  Barry  v. Fowler, 902 F.2d  770, 772 (9th  Cir. 1990)
                      _____     ______



          (same);  Street v. Surdyka, 492 F.2d  368, 371-72 (4th Cir. 1974)
                   ______    _______



          (same);   see  also  Vargas-Badillo v.  D az-Torres, Opinion  and
                    _________  ______________     ___________



          Order  of  May 24,  1996, at  12-17  (D.P.R. 1996)  (providing an



          illuminating discussion of the questionable constitutional status



          of  this longstanding  rule).   Thus, we  conclude that  the only


-6-



clearly   established   federal  right   implicated   in  Vargas'



          warrantless  arrest in  December  1990 was  his Fourth  Amendment



          right not to be arrested without probable cause.



                    C.  Objective Reasonableness and Probable Cause
                    C.  Objective Reasonableness and Probable Cause



                    We next assess whether the second part of the qualified



          immunity  standard,  requiring  that  the officers  acted  in  an



          objectively reasonable  fashion in  light of clearly  established



          law,  was  met.   Here, that  assessment  turns on  the officers'



          determination of probable cause.



                      In   cases   applying   this   [qualified

                      immunity] standard to  police arrests  in

                      this  circuit,  an  arrest challenged  as

                      unsupported by probable  cause is  deemed

                      "'objectively reasonable'"  unless "there

                      clearly was no probable cause at the time

                      the arrest was made."



          Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (quoting Floyd
          ____    _________                                           _____



          v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)).  In the instant case,
             _______



          the  evidence  giving rise  to probable  cause to  believe Vargas



          drove  under the influence of alcohol was far from substantial --



          and yet  we cannot say that  there clearly was  no probable cause



          from  the point of view  of reasonable persons  standing in these



          police officers'  shoes.  See Farrell, 765  F.2d at 5 ("Despite a
                                    ___ _______



          finding of no probable cause at a later hearing, a police officer



          should not be found liable under    1983 for a warrantless arrest



          because the presence of probable cause was merely questionable at



          the  time of arrest."); Briggs v. Malley,  748 F.2d 715, 719 (1st
                                  ______    ______



          Cir. 1984).


-7-



The Fourth  Amendment requirement of probable  cause to



          perform a warrantless arrest turns on "whether at that moment the



          facts and  circumstances within [the officers']  knowledge and of



          which they had reasonably trustworthy information were sufficient



          to warrant a  prudent man  in believing that  the petitioner  had



          committed  or was committing an offense."   Beck, 379 U.S. at 91;
                                                      ____



          see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
          ________ _____________    ________



          1987)  (quoting  Beck).   Here,  the  following undisputed  facts
                           ____



          could,  at the very least, have led reasonable police officers to



          believe that they were obeying the probable cause requirement  in



          proceeding to  arrest Vargas for  driving under the  influence of



          alcohol.    The  officers   were  informed  by  Delgado,  whether



          correctly  or  incorrectly, that  Vargas  was the  driver  of the



          truck.   Delgado also informed the defendants that Vargas and the



          other men smelled  of alcohol  and had glassy  eyes.   Reasonable



          police  officers  could  further  believe  that  Vargas'  actions



          suggested insolence,  and  were thus  the  kind of  actions  that



          correlate with drunkenness.    



                    It is worth emphasizing  that in the qualified immunity



          context, we  need not  adjudge whether  these facts  were legally



          sufficient  grounds  for  this  warrantless  arrest.3    We  only



          conclude that  the  undisputed  facts in  this  case  preclude  a

                              
          ____________________



          3    The evidence  suggesting that  an  arrest was  necessary was

          frankly not  very strong  in this  case.   We are concerned,  for

          example, that in light of Vargas' cooperation with the police and

          voluntary decision to report to the police station, the police so

          quickly  chose the option of arrest  and handcuffing, rather than

          some  less severe means to  the end of  giving him a breathalyzer

          test.



                                         -8-



finding that there  was clearly  no probable cause,  or that  "no



          reasonably competent  officer would  have found  probable cause."



          Prokey v.  Watkins, 942  F.2d 67,  72 n.4 (1st  Cir. 1991).   The
          ______     _______



          reports and observations suggesting  that Vargas had been driving



          while  intoxicated were sufficient  to satisfy  the rule  in this



          circuit  that questionable  calls on  matters of  probable cause,



          such as  the one in this case, are protected through the doctrine



          of qualified immunity.  Cf. Rivera  v. Murphy, 979 F.2d 259, 263-
                                  ___ ______     _______



          64 (1st  Cir. 1992)  (denying qualified immunity  where arresting



          officer provided  "no facts to support his  legal conclusion that



          he had  probable cause").   This  kind of  discretionary judgment



          call, made  routinely by peace  officers, must be  protected from



          the  chilling   effect  of  personal  liability.     Our  binding



          precedents addressing  qualified  immunity strike  the  difficult



          balance between chilling effective law enforcement and protecting



          individual  liberties by reviewing allegedly unlawful warrantless



          arrests to determine whether there was clearly no probable cause,



          and we  follow these precedents today.  See, e.g., Topp, 994 F.2d
                                                  ___  ____  ____



          at 48.



                                      CONCLUSION
                                      CONCLUSION



                    For the foregoing reasons,  the district court's  grant



          of summary judgment to the defendants is affirmed.
                                                   affirmed
                                                   ________


-9-