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

district government court allowed the use the pretrial to defendant’s statement to impeach to him.

services This court Id. that the

held district did not err

allowing impeachment pretrial

statement to services was as used

impeachment evidence, not as evidence of

guilt. Id. at 619. case, present the statements made pretrial were not services used as sub- guilt, is,

stantive evidence of show guilty

that Smith the bank robber-

ies, general but instead im- credibility

peachment as in While dis- Wilson. we

courage the given use of information

pretrial possible services because

chilling effect on defendants’ willingness services, pretrial

speak we hold that pre-

district court did not error in allowing

trial services statements to be im- used to

peach Smith.

Accordingly, we affirm the

the district court. GAINOR, Appellee,

John M. ROGERS; City Moorhead,

Scott municipality;

a Minnesota Doe, Appellants.

John

No. 91-1708. Appeals,

United States

Eighth Circuit.

Submitted March Aug.

Decided

Rehearing Rehearing En Banc

Denied Oct. Miller, Moorhead, Minn.,

Keith L. ar- gued, appellee. LOKEN,

Before Judge, Circuit LAY and HEANEY, Judges. Senior Circuit LAY, Judge. Senior Circuit an appeal This is from the district court’s1 denial of a for motion judgment for brought against claims defendant, police Rogers, officer Scott un- der 42 U.S.C. for false ar- § rest, force, use of excessive and violation of his First rights. Rogers sought summary judgment ground on the immunity. The district court determined that issues of material fact existed and denied the motion.2 We affirm the of the district court.

BACKGROUND On the afternoon of March John Michael Gainor was observed Officer Rogers carrying a twelve-foot six-foot through wooden cross3 downtown Moor- head, distributing Minnesota and leaflets. walking companion, Gainor was with a Todd Dittmer. ap- claims have proached suspect- the two men intoxicated, might ed soliciting, Gainor obstructing begging,4 traffic otherwise public creating a ques- nuisance. When tioned, informed Gainor of his walking ministry personal quest and his carry along cross the border of the spread religious United States to his mes- sage. obtaining After one of Gainor’s leaf- lets, Rogers asked if was an or- responded dained minister. Gainor affirm- atively, Rogers then for and asked identifi- Barry Moorhead, Minn., Hogan, pulled P. ar- copy cation. Gainor out a of the gued, appellant. for United States Constitution and informed cross, Doty, 1. The Honorable David S. United States Gainor carried which mounted Judge wheel, District District of length Minnesota. on a such that cross directly extended behind him while width of granted plaintiff's 2. The court also motion to angled diagonally away the cross was from the complaint Sergeant amend his Minnie, to include Gerald horizontally extending than street rather on ei- Bryce Forsythe and Kent Officers and him. ther side of McCullough. stayed The court the effect order, however, appeal. after until not claim does that his confrontation appeal by notice of 7, was filed on March any suspicions confirmed his with Gainor complaint filing of 1991. The the amended intoxication, public soliciting, respect to with process on service of the other officers took provide place April begging, and indeed the record does we find no lack of finality Rogers’ appeal. allegations. support for these right DISCUSSION had the constitutional Rogers that he identification. produce not to It is well settled that the denial of a summary judgment motion which asserts a debate Rogers entered into appealable from suit identifica- right to withhold about it turns on an issue of “to the extent that eventually requested tion. Gainor law_” Forsyth, Mitchell supervisor. Rogers ra- Rogers contact 511, 530, 105 86 L.Ed.2d assistance, Sergeant Minnie dioed (1985); Hay, also Johnson v. see McCullough Forsythe and ar- and Officers Cir.1991); (8th Wright F.2d claims that the offi- shortly. Gainor rived Center, Regional Health Arkansas South him if he did not to arrest cers threatened (8th Cir.1986). F.2d Although the de- produce identification. purpose We note further that the allegation, Gainor’s dispute fendants defense for a of Dittmer, to leave companion, allowed government offi state official is to shield a requests to the officers’ after he acceded merely to serve cial from rather than suit placed un- Gainor for identification. liability. v. For as a defense to Mitchell police car. forced into a arrest and der 526, 105 at 2815. syth, 472 U.S. at S.Ct. Gainor was arrest- manner which The is Where the defense that he hotly disputed. Gainor claims ed is illegal allegation to an arrest un raised injuries and to his facial abrasions suffered Amendment, issue der the Fourth the focal officers, without knee when the and wrist of the offi is the reasonableness ground, him to the provocation, threw arrest, making though proba even cer arms, kneeled on his back and twisted his lacking. ble cause to arrest is Gorra v. him. The officers handcuff legs and (8th Cir.1989). Hanson, 880 F.2d used to the level of force contend that a reasonable officer The test “whether was reasonable because handcuff Gainor law could have believed be [the arrest] resisted arrest. Gainor physically ful, law and light disorderly charged con- formally with [arresting] pos the information the officers legal process. duct and obstruction sessed.” Anderson v. 483 U.S. dropped and this charges were later Those 635, 641, 97 L.Ed.2d suit followed. complaint alleged that the de- Gainor’s The district court denied the motion for probable cause to lacked judgment quali fendant officers summary on the defense of him, they force used excessive immunity by reasoning dispute arrest that a fied arrest, his First facilitating his and that jury fact existed for a to deter of material of free exercise of reli- rights concerning mine whether reason speech ably probable free were violated he had cause to ar gion and believed period plaintiff. Reviewing After a of dis- a denial of a arrest. rest the warrantless quali summary judgment moved for on the basis of covery, the defendants Circuit, immunity, Bryant qualified immunity fied the Ninth on based t,Dep' 903 F.2d Treasury defen- v. The district court denied United States from suit.5 (9th Cir.1990), similarly reasoned that motion, finding issues of material dants’ reasonably remaining whether an officer believed respect to each of the fact with an probable had cause to make or she claims.6 Moorhead, Citing Royer, original Florida v. 460 U.S. City an named de- him. The suit, summary judg- moved for the district in this 75 L.Ed.2d 229 fendant S.Ct. as well. The district court investigatory stop ment at this time granted did not court found that the seeking city’s dismissal from Amendment, motion implicate since such a the Fourth appeal city’s does not this suit. stop require sus- reasonable articulable does dismissal. only unprotected picion, con- but constitutes appeal- This order was not sensual encounter. granted summary judgment 6. The district ed. Rog- claim that on defendant question right stop ers did not have a jury finally conclusively fact for the was a determines arrest only reasonable con- right unless there was one not to stand defendant’s Supreme jury plaintiffs allegations, for a to find. trial on the clusion however, reversed, stating: “[tjhere simply no further steps that can be taken in the District wrong This of law is for two statement Court to avoid the trial First, routinely places it reasons. defendant barred,’’ apparent maintains is it is immunity in question of the hands of requirement “Cohen’s threshold of a ful- jury. Immunity ordinarily should be de- ly consummated decision is satisfied” in trial. long cided the court before Sec- such a case. ond, the court should ask whether the agents reasonably under acted settled Mitchell, 472 U.S. at 105 S.Ct. at 2816 circumstances, law in the not whether States, (quoting Abney v. United reasonable, reasonable, another or more 2034, 2040, 97 52 L.Ed.2d interpretation of the events can con- (1977)) added). (emphasis years strued five after the fact. only appeal concern on — -, -, Bryant, Hunter v. summary judgment from a denial of based (1991) qualified immunity is whether a defen (citation omitted). dant is immune from trial. This issue is ordinarily jury one of law and not for a Qualified immunity by is best understood — Bryant, determine. Hunter v. analysis by reference to the basic offered -, (1991). 112 S.Ct. Forsyth, Mitchell v. 105 S.Ct. again Mitchell once makes clear what the (1985). L.Ed.2d 411 There the objective analysis court’s should on such be quali- Court made clear that the issue on a motion: separate fied is from the merits. plaintiff’s allegations Unless the state a on the merits whether the

The issue is clearly claim of violation of violated the law when the arrest officer law, pleading qualified a defendant im- made, immunity question whereas the munity is entitled to dismissal before the clearly is whether the officer violated es- if discovery. commencement of Even the when the arrest was made. tablished law plaintiff’s complaint adequately alleges discussing appealability In the of an in- the commission of acts that violated terlocutory denying a decision motion for law, clearly established the is defendant summary judgment qualified im- based on summary judgment entitled to dis- munity, the in Court Mitchell observed: covery to uncover evidence fails suffi- a decision is “conclusive” in either Such cient to create a issue as to cases, respects. may In of two some it the in whether commit- defendant fact represent the trial court’s conclusion that recognized thus ted those acts. Harlow by if the facts are asserted the even an entitlement not to stand trial face defendant, the defendant’s actions violat- litigation, the other burdens of condi- ed established law and are there- essentially tioned on the resolution of the scope fore not within the of the legal question the conduct of whether case, immunity. In such a there will be plaintiff complains which the violated nothing subsequent in the course of the clearly established law. proceedings the district court that can Mitchell, 472 U.S. at 105 S.Ct. at 2815 alter the court’s conclusion that the de- added). (citation omitted) (emphasis Alternatively, fendant is not immune. summary reviewing denial of the the judge may only the trial rule that if the immu- judgment on the defense by plaintiff, asserted the the facts are as role of the nity, White outlined the Justice trial, the defendant is not immune. At appellate court: plaintiff may proving not succeed facts, reviewing the denial appellate An version of the and the defendant so, claim of escape liability. thus Even the of the defendant’s of the not consider the correctness summary judgment court’s denial need facts, Anderson, at at 483 U.S. 646 n. 107 S.Ct. of the nor even version plaintiff’s (citation omitted) (emphasis add- allega- 3042 n. 6 plaintiffs the determine whether ed). a claim. All it need actually state tions question law: whether determine is important recognize that It is allegedly by the legal violated norms evaluating qualified immunity under a clearly established at the defendant were summary judgment the court motion for or, in challenged actions time possessed must examine information court has denied cases where the district reopen This does mean officials. for the defendant on ing inquiry subjective into the official’s under defen- ground that even 457 U.S. Fitzgerald, intent. Harlow See of the facts the defen- dant’s version 2727, 2736-39, 815-20, clearly estab- dant’s conduct violated pointed As L.Ed.2d 396 the Court law, clearly pro- law lished whether Creighton: out in Anderson the actions the defendant claims scribed case, in this relevant sure, the he took. resolution To be (albeit fact-spe- example, is the legal entail considera- these issues will cific) question offi- whether a reasonable allegations make tion of the factual cer have believed Anderson’s war- could relief; up the lawful, light rantless search however, true, is when a court same law the informa- clearly established prosecution is must consider whether searching possessed. tion the officers jeopardy of former barred a claim subjective about Anderson’s beliefs absolutely im- Congressman whether irrelevant.7 search are complained mune from suit Anderson, protections of of conduct falls within the course, is, question the 3040. The above Speech the and Debate Clause. legal the must resolve. issue court Mitchell, 472 105 S.Ct. at 2816 question considering objective This is an added). (footnote omitted) (emphasis existing totality of the circumstances approach is found This same are on the at that time. If the facts record where the Court Anderson undisputed, found then the to be observed: offi- must determine whether a reasonable remand, it deter- should first be his conduct cer could have believed that Creigh- actions the mined whether the light was lawful in allege to have taken are tons Anderson analysis of this law. The touchstone officer could actions that a reasonable ample latter This allows room for phase. they are, If then have believed lawful. good since faith mistake the officer prior Anderson is entitled dismissal in terms of the conduct must be measured not, discovery. they are If upon belief of a reasonable officer based if actions claims took are Anderson Ob- the facts then available to the officer. Creightons those the al- merely viously, an official cannot articulate different from (and that a lege are actions factual suspicions have no beliefs or which lawful), officer, believed then could have could example, An foundation. officer discovery may necessary upon qualified immunity based before judg- Anderson’s motion conduct of a suspicion mere normal the indi- qualified grounds ment on citizen indicated to the officer that course, However, drug might can be Of such vidual be a courier. resolved. would discovery specifically tailored if the asserted conduct which should be officer would, cause, if question give probable qualified to the of Anderson’s rise to immunity. undisputed, provide a defense of plaintiff wrongly emphasizes have 7. The officer could believed dissent the officer's .sonable pass- soliciting. right subjective plaintiff may have The constitutional belief that ing religious in this court’s soliciting. is not offi- out leaflets does not been The issue what the believed, grounds reasonable sus- constitute cer have but whether under the existing picion facts circumstances a rea- of solicitation. However, immunity. plaintiff con- nue in Moorhead. Plaintiff carrying tested the officer’s observation and offered a wooden cross with him as he walked. justify a factual account which would not 7. At approximately p.m. 3:00 on the arrest, officer to make an then date, Rogers, above wearing the uniform dispute material of fact would exist. of a City of police officer, Moorhead ap- genuine Where a issue of fact sur proached Plaintiff and his friend and rounds plaintiffs con asked they where going. were duct, the trial court must determine wheth 8. Plaintiff Rogers informed he was er the “evidence sufficient to create a [is] walking around the country with his genuine issue as to whether the defendant cross and preaching Gospel of Jesus. Mitchell, fact committed the acts.” 9. requested S.Ct. at 2815. Once a pro- Plaintiff to genuine issue of material fact is found to duce identification. exist, the defense of 10. Plaintiff then asked Rogers if he shielding the defendant from trial must be was breaking any suspected laws or denied. The cases legion in this and breaking any laws. Rogers responded other circuits which establish that where that he point was not. At that Plaintiff

there are issues of material fact stated he should required not be pro- surrounding an arrestee’s conduct it is im duce identification due to the 4th Amend- possible determine, for the court to as a ment to the U.S. Constitution. law, matter of predicate what facts exist to continued to demand decide iden- whether or not the officer’s conduct tification from clearly violated Plaintiff and established law. Plaintiff re- For exam ple, Storie, produce Duncan fused 869 F.2d identification. (8th Cir.1989), denied, cert. had also radioed for as- sistance and shortly thereafter Doe ar- issue was whether the arrest oc rived at the scene. curred inside or outside his home. If the told Plaintiff his failure to facts were as the defendant alleged, officer produce identification guilty made him plaintiff that the voluntarily placed himself vagrancy and also indicated public place, in a he would have relin guilty Plaintiff was of solicitation and quished expectation privacy of to which threatened to arrest Plaintiff if his de- he was entitled within his home. The dis mands for identification were not met.

pute of material fact caused us to affirm the denial of summary judg the motion for 14. Plaintiff denied he was either a ment based on immunity. See vagrant soliciting or and still refused to Wagenmann Adams, also 829 F.2d produce identification. and Doe (1st Cir.1987) (factual dispute regard Plaintiff, converged then on violently ing possession registration of vehicle certif him, grabbed him, tackled threw him icate at time of jury arrest must be sent to pavement, face-down on the forcibly credibility “assess the of witness and to placed him handcuffed and him under evidence.”); resolve inconsistencies in the arrest. Attaway, Wilson v. 757 F.2d picked 15. and Doe then (11th Cir.1985). up, pockets Plaintiff ransacked his and Using analytical approach out jail. wallet him and took cases, lined in these initially we look to thereafter, Shortly Plaintiff complaint alleges amended which jail recogni- released from on his own part as follows: zance. Friday, 6.On Good March appeared 17. Plaintiff walking

Plaintiff and a friend were in an easterly pleaded March and innocent to direction on the sidewalk on the northside in the charges 800 block of Center against Ave- filed him. All But as- prevention of crime. even same ters: dropped later

charges were purpose is served to some suming that day. demanding iden- by stopping and degree 186-87. App. at Appellant’s any from an individual without tification case, although the present In the believing he is involved specific basis for of two charged with violation plaintiff was activity, guarantees of the in criminal peti misdemeanors,8 urged on the it is now do not allow it. Fourth Amendment had a rehearing the officer tion for objec- stop is not based on such a When of Gainor identification right to demand criteria, arbitrary the risk of tive (1988). The lat 609.506 under Minn.Stat. § tolerable police practices exceeds abusive an individual makes it unlawful ter law limits.10 name or informa officer a false give an at 2641. Id. at during an investi arrest or during tion gative stop.9 plaintiff’s allega- examining the When Texas, In Brown v. evidentiary support contained tions and (1979), held the Court allega- L.Ed.2d 357 depositions, we find in the looking suspicious arrest of supported by unlawful the record sufficiently tions alley. The Court observed Rogers’ in an that a man defense to overcome Officer case is that none in the State’s flaw the arrest officer could believe “[t]he offi- preceding the testimony circumstances well of the Plaintiff’s was lawful. justified a rea- appellant Dittmer, of companion, cers’ detention lend as that of he was involved suspicion that support sonable was not sufficient 51-52, 99 Id. disorderly criminal conduct.” and that guilty any conduct further reasoned: the coun- merely “walking around he was Gospel preaching appellant try with his cross which statute under The Texas Complaint, Appel- identify him- of Jesus.” Amended required to stopped and true, conduct, weighty App. at 186. This lant’s designed to advance self is suspicion give rise to reasonable metropolitan cen- does not large social deterring interfering purpose with disorderly or charged conduct with 8.Gainor duties, performance be sen- § 609.72 of those of Minn.Stat. in violation legal process in violation tenced as follows: obstruction charges Both were (1) accompanied by § 609.50 Minn.Stat. force or if the act was provides: Minn.Stat. 609.72 thereof, § later dismissed. imprison- or the threat violence does of the fol- year pay- Whoever Subdivision. lowing not more than one or ment for place, knowing, private public $3,000, or in a than a fine of not more ment grounds having to know that it or will, both; or to, alarm, anger or disturb tend or will (2) imprisonment for not cases to in other provoke an assault or breach others peace, days payment of a fine of than 90 or to more conduct, disorderly guilty which is $700, than or both. not more a misdemeanor: fighting; (1) brawling Engages or or in raised in the district This statute was not meeting, (2) assembly not un- or an Disturbs Ordinarily, we will appellant’s brief. or in the character; or in its lawful (3) the district not raised in not consider issues offensive, obscene, abusive Engages or disposition present of the under the court but noisy conduct language in boisterous or claim irrelevant. case we find the defendant’s alarm, anger reasonably or tending to arouse provided a not claim that Gainor does in others. resentment or false information. false name provides: 609.50 § Minn.Stat. obstructs, hinders, intentionally or Whoever an open "whether left 10. The Court any legal execution of prevents the lawful refusing iden- may punished to be individual criminal, apprehension of or process, civil or investiga- tify in the context of a himself lawful charge of a crimi- or conviction another tory stop Amendment satisfies Fourth which resists, obstructs, or interferes or nal offense 3, Brown, at 53 n. 99 requirements." 443 U.S. peace is en- officer while the officer with a gaged York, Dunaway (citing Newv. at 2641 n. 3 duties, S.Ct. performance of official in the 2248, 12, 12, 200, n. 2255 210 n. 99 S.Ct. 442 U.S. ob- endeavors to force or threat of force 1, Ohio, (1979); Terry v. 392 60 L.Ed.2d 824 employee department of any struct (White, concurring)) (emphasis (1968) add- J. lawfully 34 ed). employee en- is revenue while the gaged duties for performance of official in the

1387 Brown, criminal conduct. 443 U.S. at he violating clearly established 51, 99 S.Ct. at 2641. law. It is fundamental that an arrest vio- lates the Fourth Amendment when there Rogers disputes Officer Gai suspicion exists no or probable nor’s factual claim. now asserts cause that an individual engaged is in crim- obstructing pedestrian activity. Texas, inal Brown v. See 443 U.S. gave traffic a manner which rise to a 47, 2637, 99 (1979). S.Ct. 61 L.Ed.2d 357 It suspicion depositions of intoxication.11 The is also fundamental that a lawful arrest show, observed, as the district court may not ensue where the arrestee is mere- place Rogers’ the arrest did not take until ly exercising his First rights. supervisors were called and refused See, Hill, e.g. 451, Houston 482 U.S. produce his identification. These factual 2502, (1987); S.Ct. 96 L.Ed.2d 398 Hess v. give issues rise to a factual dispute on the Indiana, 105, 326, 94 S.Ct. probable merits to whether had (1973); L.Ed.2d Gooding Wilson, Rogers’ Gainor. cause arrest Officer 518, 1103, 405 U.S. 31 L.Ed.2d 408 testimony as to the had in facts he (1972); California, 15, Cohen v. 403 U.S. however, possession, is to be un evaluated 91 S.Ct. (1971); 29 L.Ed.2d 284 Street in passing der Mitchell standard on the York, v. New 394 U.S. 89 S.Ct. qualified immunity. issue of apply teachings ing the of Mitchell Under present circumstances of the Anderson, initially only we need look to record, find, although we for different rea- plaintiff’s allegations to determine whether court, sons than the district that the dis- a reasonable officer could that the believe trict court’s decision to deny defen- arrest was under principles lawful clear dant’s motion for judgment on ly indicated, established law. As qualified immunity the basis of to stand analysis is to attempt be done without trial should affirmed. verify plaintiff’s the correctness of com EXCESSIVE FORCE Mitchell, plaint. 472 U.S. at If at 2816. the court is satisfied Gainor’s excessive force claim reasonable officer would or should have analyzed light objective should be violating she known that he or well reasonableness standard articulated in law, discovery Connor, may proceed to Graham v. plaintiff’s enable the (1989).12 defense show that L.Ed.2d The Court allegations supported by are not factual in Graham discussed several factors which case, present In evidence. we find aid in determination allegations, although reasonableness, factual including severity, dis “the puted, supported issue, sufficiently by evidentia suspect the crime at whether the true, ry proof. allegations If poses these we safety immediate threat to the others, it the allegations support think clear that the officers or whether charge officer, making resisting that a actively attempting arrest or arrest, flight.” would should have known evade arrest Id. denying summary judgment, superior, the court be- ers’ then asked to call his superior, objection “Terry found officer low that the did not make a and waited without until stop." Doty point Judge Minnie arrived. At this Gainor's As con- reasoned: merely versation the with officers was a con- Rogers' present case the initial encounter implicate sensual not encounter which does with Gainor not did constitute a seizure for protections. fourth amendment purposes of the fourth amendment. 4-90-187, (D.Minn. Rogers, Gainor v. No. merely approached Gainor and asked to see 5, 1991) (order denying Feb. motion for sum- Gainor’s identification. free to mary judgment). any questions refuse to of answer the that Rogers put to him. He was to also free leave Rogers urges qualified the Defendant during at stead, time this initial In- encounter. immunity applies rule as well to claim stay pursue he chose to his discus- similarly for excessive This issue re- force. Moreover, Rogers. specifically sion with against he solved defendant the same the under requested opportunity speak Rog- governing alleged to with rationale the unlawful arrest. First Amendment district for violation of his agree with the We S.Ct. at rights. applied factors as of these analysis

court’s alleged miscon- claim. to Gainor’s LOKEN, Judge, dissenting. Circuit nor serious. violent neither duct to indicate Gai- evidence There is little I the ma- respectfully I dissent. believe anyone, to threat posed physical a opinion pays only lip nor service to the jority dispute as to whether immunity there is a factual close qualified of defense resisting arrest. Viewed “actively” case, the very of case for which the kind Gainor, genu- to light most favorable I conclude that de- defense was intended. as to the reasonable- immunity fact exists qualified ine issue of to fendants are entitled against Gainor force used ness of the of law on Gainor’s unlawful as a matter I his arrest. First Amendment claims. secure arrest and claim for remand his excessive force would final respect to Gainor’s With qualified im- further consideration of claim, found that Gainor’s the district munity prior trial. issue clearly impli rights were First Amendment immunity pro- qualified agree. To ensure this case. We by the facts of cated against unneces- protection effective right to vides protects the Amendment The First expense, the Su- sary litigation risk and messages public fo religious convey adopted a of preme has standard International Soci v. rums. See Heffron public officials Consciousness, 452 U.S. Krishna ety reasonableness — for qualified immunity when are entitled to (1981). 2559, 640, 69 L.Ed.2d 101 S.Ct. does not violate es- their “conduct carrying large the act of only Not did rights statutory constitutional tablished suggest Gainor’s by itself wooden cross person would have of which a reasonable message, it is religious express intent Fitzgerald, Harlow v. 457 U.S. known.” explained his reli that Gainor undisputed 2727, 800, 818, 2738, 73 L.Ed.2d 102 S.Ct. Rogers. The First gious mission (1982). Qualified ques- immunity is a right to protects Gainor’s Amendment also “ordinarily decid- of should be tion law police officers’ ac challenge the verbally trial.” Hunter long ed the court before Hill, City v. tions. See Houston — -, Bryant, v. 112 S.Ct. U.S. 107 S.Ct. (1991). 537, 116 L.Ed.2d 589 (“The (1987) First L.Ed.2d 398 amount of verbal crit significant protects a However, unnecessary from tri- freedom police offi challenge directed icism and only purpose served als .is Cincinnati, City Norwell cers.”); defense; it also shields qualified (1973). unwarranted dam- public servant from claims he was arrest liability: To the extent age religious message spreading a solely ed against damages suits [Permitting “bizarre,”13 found the officers in a manner can entail substan- government officials right challenging the officers’ or for costs, including risk that tial social identification, there production of demand monetary liability and personal fear merits of this remains on the litigation unduly inhibit harassing' will fact. material issues of discharge of their duties. officials in the Anderson denial of district court’s affirm the We 97 L.Ed.2d summary judgment motion defendant’s determining Therefore, procedures for immuni- upon based assertions must be defense court’s affirm district ty. likewise We purposes carefully tailored to meet its dual for sum- defendant’s motion denial unnecessary trials pro- preventing plaintiff’s claims mary judgment damage liabili- tecting public officials from arrest, imprisonment and use false false reasonable conduct. force, ty objectively for as well excessive Rogers). App. (deposition Scott Appellee's at 64

1389 yet Supreme fully Rogers The Court has not If making reasonable in issues, procedural addressed these but it stop investigative and in asking Gainor for provided guidance has in pas- substantial part identification as of that reasonable sage majority quotes that but then investigation, the lawfulness arrest largely ignores: turns on the narrow Supreme issue the should first be determined whether [I]t expressly open left in Brown v. Tex [plaintiff] allege[s] actions ... are as, 47, 3, 2637, 53 n. actions that officer could 3, (1979): n. “whether an are, they have believed lawful. If then may punished individual refusing for to prior is entitled to dismissal [defendant] identify himself the context of a lawful not, they to If and if discovery. are investigatory stop which satisfies Fourth he took actions claims are [defendant] requirements.” That [plaintiff] allege[s] different from those was unsettled at the time and remains un (and are actions that a reasonable officer thus, today; settled Gainor has failed to lawful), could then have believed dis- allege a violation of established law covery may be before necessary [defen- that would “convert the common law tort for summary motion dant’s] of false imprisonment arrest or false to a qualified immunity grounds can be re- violation of a right.” constitutional Ed solved. Baer, 606, (8th wards v. 863 F.2d Cir. Anderson at 646 n. 1989). 6, purposes 107 S.Ct. at 3042-43 n. 6. For applying to standard majority simply ignores pleading claims, that, I for the except conclude ex- stage of the Creighton Anderson v. in- claim, cessive force relevant facts quiry. Then, analyzing discovery complex disputed. this case néither nor record, gives the majority deceptively Arrest. This claim should not cramped Unlawful summary of Rogers’s deposition survive pleading stage of the Anderson testimony as to the circumstances Creighton standard has stop led him to Gainor and ask for alleged “actions a reasonable officer page supra. identification. See could have lawful.” believed Gainor’s Rogers testified: Complaint alleged: Amended Q. Okay. We’ve talked about intoxi- Rogers ... indicated Plaintiff was cation. about the fact that We’ve talked guilty of solicitation threatened to you go pedestrians having saw around to arrest Plaintiff for demands identi- him about and his cross we’ve talked fication were not met. you thought the fact be a If believed he had suspi- by stopping people, correct? nuisance stop cion to investigate to unlawful A. That’s correct. soliciting, alleges, as Gainor then employ was entitled to the “least intrusive Q. you Anything else that concerned [investigative reasonably avail- methods] prior you asking to Mr. police as a officer dispel able verify suspi- the officer’s Gainor his name? period cion in a short of time.” Florida v. A. Yes. Royer, Q. L.Ed.2d See What? United Willis, (8th States v. F.2d 1220 Cir. pieces passing A. The out of these 1992). Surely, least intrusive method paper, they were. pamphlets whatever investigate possible soliciting unlawful ****** ask identification.1 does, Cir.1991). (8th say, majority Hughes, 1. It is no answer as the 940 F.2d acquire any deposition testimo- did evidence of Even Gainor admitted in his illegal investigated soliciting stopped ny, actually being after he Gainor. I See "if was supra. required something, perhaps they note was not to ac- did have a then cept grounds stop what Gainor told him. See States v. check me out." United police. and the Moorhead passing the out of with Q. What about you, Thus, months, police span concerned Of- in a of thirteen pieces paper of these in four different States concluded ficer? officers the same conduct warranted Gainor’s that their content was I what A. wondered qualified immunity de- soliciting- “As the of him arrest. possibility and the evolved, provides ample protec- has it fense soliciting? you mean Q. doWhat plainly incompetent or to all but the tion passing out Receiving funds for A. knowingly who violate the law.” those permit. without a Briggs, U.S. Malley city? in illegal this Q. Is that It 89 L.Ed.2d S.Ct. required. a permit I believe there’s A. neither in this is clear that intoxication, Q. possibility the So Therefore, I the ma- case. cannot reconcile going pedestrians around the nuisance of qualified this jority’s immunity denial cross, soliciting, and potential his the discovery Creigh- record with Anderson v. you stop him prompted else what Bryant. and Hunter v. ton talked about a number now? We’ve things. different majority con- The First Amendment. Overwhelming public summary judg- concern for that the motion for A. cludes safety my— this must ment on be denied because that he arrested Gainor’s assertion him as a threat to the

Q. You saw religious message” a “solely spreading safety? public a of material fact. raises issue threat, yes. possible A. A But a defendant’s motives are irrelevant Up to the time Q. possible A threat. qualified issue. As the Su- the name, you him his did you asked Harlow, allega- preme “bare Court said he had done any reason to believe have suffice,” tions of malice should illegal? anything 2738; again in at 102 S.Ct. at Yes. A. Anderson, subjective beliefs “Anderson’s Q. What? irrelevant,” about the.search Being public nuisance. A. Thus, majori- above-quoted deposition Rogers’s testimo- contrary ty’s analysis plainly to the con- is entirely with Gainor’s com- ny is consistent immunity. trolling law of disputed there are no issues plaint. here lurking issue There.is an properly limited the focus here fact if if Supreme yet has not addressed: Court rea- could have to whether Officer claim is based constitutional did not sonably conduct believed (as it upon the defendant’s bad motives law. violate cases), and is in First Amendment typically Moreover, portions discovery other undisputed facts demonstrate Rogers’s conduct was confirm that record objectively reason- the defendant had reasonable, even if his arrest of objectively conduct, alleged can able for his basis overstep Fourth Amendment Gainor did summary judgment on motive defeat bad 1988, Gainor was arrest- In June bounds. grounds? Su- qualified immunity Kootenia, July Idaho. ed in preme avoid this issue Court was able to Harbor, Illinois, Winthrop was arrested — U.S.-, Siegert Gilley, Glendale, All three of Wisconsin.2 (1991); L.Ed.2d reports reflect circumstances arrest these no violation.3 majority encounter found constitutional identical to Gainor's virtually, Kennedy concurring opinion, ad- public Justice In a this information from obtained re- issue and dressed Gainor refused answer records because "heightened pleading adopting it solved pri- discovery any inquiries numerous about his — standard," at-, 111 S.Ct. at 1795. law officials. enforcement encounters with However, come "rub” in close cases tends to Rogers’s reasonableness With the fact-finding pleading at the rather than at the stage, issue, flagrant this refusal was conduct at suspect Supreme will need I so discovery process. abuse of the again. up take this issue I would not reach the issue here because presented has no Rog- evidence that DAVIDSON; Robert L. Guenther ers’s conduct was motivated Roth, Appellants, R.

religious activities. This case turns on whether objectively stopping arresting WILSON; Gainor and then in Winthrop Thomas C. Securi- refusing request him for a Co., Inc.; for identifica- Winthrop ties Financial As- purported tion. The fact that sociates, partnership, limited Mary- engaged religious activity does not af- partnership, land Appellees. limited (or affects) fect at most negligibly whether No. 91-2136. Rogers was in suspecting Gai- unlawfully nor of soliciting creating United States Appeals, Court of public nuisance. Eighth Circuit. majority Excessive Force. The relies Submitted Dec. upon Connor, 386, 109 Graham v. Aug. Decided for its resolution of problem this issue. The Rogers’s Graham was decided after question.

conduct in The facts surround

ing this hotly disputed, quali claim are

fied after Graham remains un

settled. opinions See the various in Ham Gross, (9th Cir.1991)

mer v. 932 F.2d 842

(en banc). Accordingly, I would remand

this issue for further consideration consist procedural

ent with the standard of Creighton.

Anderson v. conclude,

To Creighton, Anderson v. Supreme Court held that this court had

unduly restricted by defining

defense “clearly established broadly.

law” too Today, majority

adopts an approach even more hostile defense, limiting it to cases which

“the officer asserted conduct which would

give probable rise to Page cause.”

supra. standard, Under this the defendant prove

must a defense on the merits to be

entitled to immunity. Such a

standard is inconsistent with Anderson v. Bryant, Hunter v. Harlow v.

Fitzgerald, controlling Supreme and other I

Court cases. dissent.

Case Details

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

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 9, 1992

Citation: 973 F.2d 1379

Docket Number: 91-1708

Court Abbreviation: 8th Cir.