Robert PAINTER, Plaintiff-Appellant, v. Bill ROBERTSON; Robert Tush, Defendants-Appellees.
No. 98-3340.
United States Court of Appeals, Sixth Circuit.
Argued: March 17, 1999. Decided and Filed: July 20, 1999.
185 F.3d 557
Although agency interpretations of federal statutes are generally entitled to deference, we hold that the INS’s interpretation of pre-amendment
V
Finally, the government argues that the issue is moot because Gao is no longer a juvenile under the INA. “In general a case becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969))). “[A] controversy is moot when a court cannot render an effective decree responsive to the complaint.” Caldwell v. Craighead, 432 F.2d 213, 218 (citing Singleton v. Board of Comm’rs of State Insts., 356 F.2d 771 (5th Cir.1966)). “A case ... is only moot if, assuming that the plaintiff receives the relief which he or she requests, such relief would no longer afford any meaningful legal benefit.” Smith v. Securities & Exch. Comm’n, 129 F.3d 356, 362 n. 5 (6th Cir.1997).
This case is not moot because, by giving Gao what he has requested, namely SIJ status, he receives a meaningful legal benefit—the opportunity to apply to the INS to have his status adjusted to that of an alien lawfully admitted for permanent residence.
Accordingly, we REVERSE the judgment of the district court and REMAND the case with instructions to direct the INS to grant Gao’s petition for SIJ status retroactively and to give full and proper consideration to his application, as a person with such status, to have his status adjusted to that of an alien lawfully admitted for permanent residence.
Charles Keith Plummer (argued and briefed), Tribbie, Scott, Plummer & Padden, Cambridge, OH, for Defendants-Appellees Bill Robertson and City of Holloway.
Douglas J. Suter (argued and briefed), Isaac, Brant, Ledman & Teetor, Columbus, OH, for Defendants-Appellees Belmont Sheriff, Robert Tush and Tim Stephen.
Before: KRUPANSKY, SILER, and BATCHELDER, Circuit Judges.
KRUPANSKY, J., delivered the opinion of the court, in which SILER, J., joined. BATCHELDER, J. (pp. 572–74), delivered a separate opinion dissenting in part.
OPINION
KRUPANSKY, Circuit Judge.
The plaintiff-appellant, Robert Painter (“Painter” or “the plaintiff”), has challenged the district court’s summary judgment for the defendant-appellee peace officers William Keith Robertson (“Robertson”) and Robert Leonard Tush (“Tush”) (collectively referenced as “the defendants”), which dismissed, upon according the officers qualified immunity, his individual capacity claims for damages under the
Painter, a 1987 graduate of the United States Military Academy at West Point, is an honorably discharged Captain who had served five years in the United States Army as, inter alia, a military police commander at a major army base wherein he trained and supervised military police officers. Prior to November 1995, Painter had never been arrested, jailed, or charged with any crime. On the evening of Friday, November 18, 1995, the plaintiff worked as the sole barman at Lucky’s Bar and Grill (“Lucky’s”) in Holloway, Belmont County, Ohio. Lucky’s was owned by Painter’s sister-in-law. The tavern attracted a rough and sometimes dangerous clientele, and had earned a local “punch palace” reputation. Although Painter’s employment as a full-time marketing representative (“hospice consultant”) for a pharmaceutical company entailed responsibility for a sales territory encompassing six West Virginia counties plus two Ohio counties, he nonetheless had agreed, commencing in July or August 1995, to assist his sister-in-law, on a part time basis, in the management and operation of Lucky’s.
On the evening in controversy, a female regular patron of the pub complained sporadically to Painter that a male customer, who the plaintiff did not then recognize but was later identified as Michael E. Doan (“Doan”), was harassing her. On each occasion, Painter admonished Doan to desist from annoying the woman. Nonetheless, following intermittent post-admonition respites, Doan would promptly resume his vexation of the female. Painter suspended further alcoholic beverage sales to the intoxicated Doan, and, ultimately, at about 12 midnight, directed Doan to leave the premises because of his obstinate obstreperous and obnoxious conduct.
Approximately two hours after Doan’s expulsion, Painter responded to a dissonant commotion in the tavern’s back room.3 Upon entering, he observed a fight in progress involving several individuals, including Doan, who apparently had surreptitiously re-entered the building via a side door. A companion of Doan’s, later identified as Dan Shepard (“Shepard”), was a participant in the melee. In an effort to halt the violence, Painter sprayed mace at the combatants, including Doan and Shepard. Shortly thereafter, most of the party attendees departed Lucky’s via the side exit. While leaving, Doan damaged the screen door. However, Shepard did not leave, but instead returned to the main area of the lounge. Painter subsequently heard Shepard, a brawny individual standing approximately 6‘5” and weighing 250 pounds, loudly threaten repeatedly to kill whoever had maced him.
Painter, fearing for his safety, went outside and armed himself with a nine millimeter Smith and Wesson model 915 semiautomatic pistol which he kept in the trunk
Momentarily, as the remaining patrons were departing the bar, defendant City of Holloway Police Chief William Robertson arrived at Lucky’s in response to a citizen’s report of a fight at the tavern. At that time, Painter described for Robertson the earlier disturbances, including Shepard’s belligerent actions, and lodged a criminal complaint against Doan for damaging the club’s side screen door. The uncontradicted testimony of both Painter and Robertson evidenced that, at this juncture, the exchange between the two men
was cordial, cooperative, and friendly.5 Both individuals testified that they had been previously acquainted, and that Painter addressed Robertson as “Bill” and Robertson addressed Painter as “Bobby.”6 Robertson testified that he did not feel threatened in any way by Painter during this discourse. He further attested that Painter had never threatened him, nor had he instigated any problems, during any of their prior interactions. However, although the record of testimonial evidence reflected that the long-standing relationship between Painter and Robertson had generally been cordial and positive, it also revealed that Robertson had previously expressed a negative opinion of Lucky’s.7
Following Robertson’s interview of the plaintiff, the police chief returned to the tavern’s parking lot, where between 15 and 30 customers, including Doan and Shepard, were milling around. Because of ongoing arguments in the parking lot, coupled with a palpable tense mood among the crowd’s less than sober members, Robertson feared that further violence might erupt. Upon arresting Doan by reason of Painter’s property damage complaint, Shepard or Doan, and perhaps others, advised Robertson that Painter had brandished a pistol inside the bar.7 According to Robertson’s testimony, the information supplied to him by members of the unruly belligerent mob suggested that Painter, after ordering the complete evacuation of the establishment, had indiscriminately waved his weapon around the barroom to enforce his command.8 Nonetheless, Rob-
Robertson subsequently radioed the Belmont County Sheriff Office to request backup assistance. Defendants Captain Robert Tush and Deputy Tim Stefan (“Stefan”), as well as Auxiliary Deputy Timothy Newhart (“Newhart”), responded immediately. Although Tush had not previously met Painter and knew nothing about him, he had been summoned to terminate hostilities at Lucky’s on many prior occasions. Tush testified that he heard some unidentified individuals outside the lounge state that, while inside, they had been threatened with a gun by some unidentified person. However, Tush did not know the identity of any purported speaker. Tush recalled that one person, possibly a “burly man,” had asserted that he had been ordered from the tavern at gunpoint. However, Tush attested without contradiction that, as a sheriff department employee who Holloway Police Chief Robertson had requested merely to supply backup in a difficult situation, he was present only to protect Robertson. Tush testified that he was not responsible for interrogating witnesses, taking statements, or performing other investigatory functions. Rather, Robertson alone exercised professional discretion in the conduct of the investigation; Tush merely followed Robertson’s lead.
Newhart, who also had never known Painter, characterized Lucky’s as “a known problem spot.” He testified that, while in the parking lot, he overheard various former bar patrons assert that some unidentified person had displayed a weapon inside the pub following a fight and macing incident. For his part, Stefan disclosed that he had no prior knowledge of the plaintiff, and had never seen him prior to the morning in controversy, although he also had been called to Lucky’s on numerous prior occasions to restore order among unruly customers.
For unknown reasons, the officers did not disperse the disorderly, hostile, and potentially dangerous crowd. Instead, Robertson elected to question Painter about the alleged handgun incident. The law enforcement agents lingered in the parking lot, together with the angry mob, until approximately 3:00 a.m., when the plaintiff, upon completion of his closing duties, exited and locked the inn for the night. As Painter approached his vehicle with the night’s proceeds of approximately $700 and his pistol inside a belt clip holster which was concealed by his sweatshirt and camouflage jacket, Robertson, accompanied by Tush and Newhart, asked him if they could all converse inside the club. In response, the plaintiff readily unlocked the bar and permitted Robertson, Tush, and Newhart to enter. Stefan remained in the parking lot.
Once inside, Painter granted Robertson’s request to permit the officers to search the tavern premises. As they searched the lounge, Robertson asked Painter several times if there was a gun on the premises. Although initially silent, Painter may have ultimately responded that the officers would not find a weapon on the premises. However, Newhart subsequently located an oak night stick and two empty mace containers behind the counter. Painter testified that Robertson then asked him to come from behind the bar, whereas Robertson testified that Painter unilaterally commenced movement behind the bar. Robertson asserted that he felt threatened by Painter’s conduct at that point, although he failed to articulate a coherent reason for that alleged fear. Robertson testified:
Well, at that point in time, I did not know because of the front door being right there whether he was going—I didn’t know what was happening that night. I mean, there was a lot of emotion going on. Mr. Painter was upset
because of the fights that took place in the bar, the property that was destroyed. I did not know what he was going to do once he come out from behind that bar.
Captain Tush, who like Newhart and Stefan, was not acquainted with Painter and had not participated in Robertson’s earlier conversation with him, also testified that Painter’s movements behind the bar caused him some discomfort. However, he conceded that the plaintiff had made no direct threats, did not use any provocative language, had committed no crime in the officers’ presence, and had otherwise behaved normally. Tush related at deposition that he was apprehensive about Painter’s conduct for the following reasons:
No, I’m only concerned at this point probably with the movement of Mr. Painter. Again, I’m looking for weapons and all of a sudden I’ve got a man that’s been standing by the back door, now all of a sudden he’s moving, I’m wondering what’s going on.
First of all, I am there at a bar that has reportedly a fight there with weapons, that there was a gun being used by somebody. The original search started with Mr. Painter at the door talking, and as we rounded the corner of the bar, that’s when Mr. Painter started moving and he became nervous and his actions at that time did not warrant a man that was not guilty of anything to do such an act. I’ve got three officers here. I’ve got another officer outside. I’ve got myself, plus I have a reserve deputy there plus Chief Robertson, I have to be concerned as a captain with the safety of everybody there. So, yes, I became extremely concerned because of his I consider it unwarranted actions and his nervousness to be extremely concerned, especially when I find weapons that are already there when he said there was no weapons then all of a sudden we find weapons [two mace cans and an oak night stick]....
Because Mr. Painter at that point is now acting extremely irrational.... When you combine it with the fact that there was weapons that was already found, that he said that there was not going to be any weapons, you won’t find nothing there, he’s left his position of being relaxed talking to the chief at the front door and now he’s headed down the left side of the bar and a man that has absolutely nothing to worry about should never have left the front door to begin with, he should have still been standing there talking which wouldn’t arouse my suspicion what is going on, why is this man leaving, why is this man now traveling.
Auxiliary Deputy Newhart testified that Robertson had asked Painter several times for permission to search his person, but Painter did not respond. Newhart asserted at deposition that he considered Painter’s behavior suspicious and a cause for safety concerns. However, Newhart conceded that Painter had made no threatening statements, did not use offensive language, did not assault any officer, committed no crime in the officers’ presence, and had caused no trouble “[o]ther than him being cocky and evasive.”
Following the surfacing of the night stick and the mace canisters, Painter refused Robertson’s request for consent to perform a body search. He further revoked his consent for the premises search and directed the officers to depart. At that juncture, Tush drew his service revolver and held it at the “low ready” position. Either Tush or Robertson ordered Painter to place his hands upon the bar.
Under compulsion, Painter responded submissively and assumed the search position against the bar. The plaintiff volunteered that he had a pistol in a holster clipped onto his trousers’ waistband moments after Robertson commenced a pat-down search. Robertson seized that firearm, handcuffed Painter, and arrested him
On November 22, 1995, Robertson initiated a criminal complaint in Belmont County Common Pleas Court which charged Painter with the carriage of a concealed deadly weapon. See
On July 1, 1996, a second Belmont County common pleas judge presided over an evidentiary hearing on Painter’s motion to suppress the evidence which had been seized on November 19, 1995 as the fruit of an illegal search, and to dismiss the indictment. Only Painter and Robertson testified during that proceeding. On July 9, 1996, the common pleas judge resolved that “[t]here was no evidence presented to this court that the law enforcement offi-
cers felt that their safety was at risk nor was there any testimony that [Painter] made any indication either verbally or by physical actions that would lead the officers to believe they were at risk.” The Ohio court’s judgment pronounced that “the search of [Painter] was unreasonable and further that he had an affirmative defense for the carrying of a concealed weapon.”10 The state trial court ordered the suppression of Painter’s handgun and the dismissal of the criminal prosecution. On July 13, 1996, the Holloway Police Department returned to Painter all property it had seized from him on November 19, 1995, namely the Smith and Wesson firearm, fourteen rounds of ammunition, the pistol’s ammunition clip, the clip-on holster, the oak nightstick, and two empty mace canisters.
On November 14, 1996, Painter initiated a damages complaint in Ohio court against Robertson, the Village of Holloway, the Belmont County Sheriff, and John Doe sheriff department personnel, by which he asserted constitutional tort claims under
Subsequently, the remaining defendants (Robertson, Tush, and the Village of Holloway) each moved for summary judgment on the plaintiff’s federal civil rights claims, whereas Painter inaugurated a cross motion for summary judgment on all claims against all defendants. On February 13, 1998, the district court denied the plaintiff’s motion in its entirety, but granted summary judgment on the federal claims in favor of each individual defendant in his personal capacity on a qualified immunity rationale;12 and for the Village of Holloway and Robertson in his official capacity13 because even if Robertson had committed a constitutional tort, no evidence proved that any official policy or custom of the Village of Holloway had motivated his wrongful conduct, and thus official liability was barred. E.g., City of Canton v. Harris, 489 U.S. 378, 387–89 (1989). The trial court also perfunctorily dismissed the plaintiff’s section 1983 official capacity claim against Tush. On March 3, 1998, the plaintiff voluntarily dismissed, without prejudice, his pendent state law claims. On review, Painter has contested only the district court’s summary dismissal, by reason of qualified immunity, of his section 1983 individual capacity damages claims against Robertson and Tush for alleged illegal search and arrest.
A court may grant summary judgment under
“Qualified or ‘good faith’ immunity is an affirmative defense that is available to government officials performing discretionary functions.” Rich v. City of Mayfield Hts., 955 F.2d 1092, 1094 (6th Cir. 1992). By operation of that doctrine, those officers
Accordingly, any “objectively reasonable” action by a state officer, as assessed in the light of clearly established law at the time of the conduct at issue, will be insulated by qualified immunity. Id. Thus, even if a public officer has deprived the plaintiff of a federal right, qualified immunity will apply if an objective reasonable official would not have understood, by referencing clearly established law, that his conduct was unlawful. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5 (1998); Rich, 955 F.2d at 1095. The question whether an asserted federal right was clearly established at a particular time presents an issue of law subject to plenary review. Elder v. Holloway, 510 U.S. 510, 516 (1994). “In inquiring whether a constitutional right is clearly established, we must ‘look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.’” Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993) (citation omitted).
“The ultimate burden of proof is on the plaintiff to show that the defendants are not entitled to qualified immunity.” Rich, 955 F.2d at 1095. Claims of qualified immunity are assessed on a fact-specific basis to ascertain whether the particular conduct of the defendant state employee infringed a clearly established federal right of the plaintiff, and whether an objective reasonable officer would have believed that his conduct was lawful under
extant federal law.15 Anderson v. Creighton, 483 U.S. 635, 641 (1987). Although the application of qualified immunity comprises a legal issue, summary judgment is inappropriate when conflicting evidence creates subordinate predicate factual questions which must be resolved by a fact finder at trial. See Johnson v. Jones, 515 U.S. 304, 313–15 (1995).
Although a premises search conducted pursuant to valid consent cannot violate the
However, Robertson has argued that the officers justifiably performed an investigative pat-down search of Painter instead of departing immediately because they possessed a reasonable suspicion, supported by articulable facts, that the plaintiff was both armed and potentially dangerous. Terry v. Ohio, 392 U.S. 1, 27–30 (1968); Sibron v. New York, 392 U.S. 40, 63–65 (1968);
Accord, Crawford-El v. Britton, 523 U.S. 574 (1998).
Construing the summary judgment record and its reasonable inferences most favorably for the plaintiff, defendant Robertson beyond controversy lacked a reasonable suspicion to justify frisking Painter. Chief Robertson knew that Painter had been forced to expel aggressive, intoxicated, and minatory patrons from the lounge, and had been the target
of serious threats, a violent assault, and an attempted battery, earlier that same evening. Robertson had spoken with Painter shortly after those incidents and found him to be calm, cooperative, and non-menacing. Moreover, he knew that Painter was a law-abiding model citizen who had never caused any trouble, and that he was aiding his sister-in-law in the management and operation of her business.16 Accordingly, he knew prior to searching Painter that, if he indeed had concealed a loaded firearm on his person or within ready access inside the bar, he had a legal justification for that possession,17 and no articulable facts supported a suspicion that the plaintiff posed a potential safety hazard to any law-abiding person.
Nevertheless, Robertson elected to treat the crime victim as a criminal offender, on the apparent strength of vague accusations made by unidentified intoxicated persons in the club’s parking lot that Painter had brandished a firearm around the barroom. None of the officers was able to identify any person who had made this accusation against Painter other
Painter testified that his nervousness, evasiveness, and disposition towards the officers during their consent search of the inn was a byproduct of Robertson’s questions, demeanor, and attitude, which betrayed an intention to charge Painter with a crime.18 This concern may have been well conceived in light of testimony, quoted in note 6 above, that Robertson had previously stated that he considered Lucky’s to pose a public nuisance and a chronic policing headache, which may have prompted him to exaggerate a compelling justification for the tavern’s permanent closure. In any event, Robertson’s unfounded accusatory behavior towards Painter created the tense and confrontational environment during the consent search. By contrast, prior to being treated as a criminal by Robertson, Painter had done nothing to suggest that he had committed any crime that night, or that he might pose any danger to the officers or to any civilian who had not threatened his safety. Thus, on the summary judgment record construed most favorably for the plaintiff, Robertson lacked any reasonable suspicion which could be supported by articulable facts that Painter might aggressively men-
ace any person; hence the faulted body search was unconstitutional. Moreover, as a matter of law, qualified immunity could not excuse Robertson from potential liability for that body search, at least on summary judgment, because clearly established law, including Terry, Sibron, and Adams, dictated prior to November 19, 1995 that a Terry frisk must be supported by an objectively reasonable suspicion that the subject was potentially dangerous.
Because this review concludes only that the record evidence, when construed most favorably for the plaintiff, proves that Robertson violated Painter’s
Robertson has argued that, upon surfacing the firearm, his probable cause to arrest Painter was manifest, because Painter had clearly committed each statutory element of the offense in controversy, namely the knowing concealment of a deadly weapon on the subject’s person.
irrelevant to the fact that Painter had affronted the literal strictures of section 2923.12(A) at the time of his arrest, independent of any proffered affirmative defense.
However, on February 12, 1999, this circuit resolved that, in 1991, clearly established federal law directed that the probable cause inquiry must encompass all “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense,” including facts and circumstances establishing a statutorily legitimated affirmative justification for the suspected criminal act. Estate of Dietrich v. Burrows, 167 F.3d 1007, 1013–14 (6th Cir. 1999) (quoting DeFillippo, 443 U.S. at 37). In Estate of Dietrich, the Sixth Circuit affirmed a district court’s denial of qualified immunity to Ohio policemen who had arrested two professional cash couriers upon their admission that they were carrying concealed weapons, because those officers knew that those men legally carried their weapons by operation of
The Estate of Dietrich court, in rejecting the defendants’ argument that, in 1991, no controlling federal authority had clearly dictated that, in evaluating probable cause, an arresting officer must assess the potential validity of a criminal suspect’s claim of statutory justification or excuse, ruled that federal constitutional law had clearly provided at least since the Supreme Court’s
The Estate of Dietrich precedent comprises binding stare decisis in the case at bench.20 Thus, beyond controversy, clearly established federal law had stipulated since 1925, and thus prior to November 18–19, 1995, that a peace officer, in assessing probable cause to effect an ar-
rest, may not ignore information known to him which proves that the suspect is protected by an affirmative legal justification for his suspected criminal actions.21 In the instant case, upon construction of the record most favorably for the plaintiff, a reasonable officer in Robertson’s position would have known that Painter legally carried his concealed handgun as authorized by
On the other hand, the overall posture of defendant Tush was materially distinct from that of Robertson. After construing the record evidence and the supportable inferences to be derived therefrom most favorably for the plaintiff, it is nonetheless clear that no record evidence proved that Tush knew, or objectively could be expected to have known, that the plaintiff was not potentially dangerous, or
All that Tush knew, or reasonably could have been expected to know, during the consent search of Lucky’s was that some person or persons had claimed that during an earlier altercation inside the bar an unidentified person had brandished a firearm; at least some members of the crowd in the parking lot were apparently agitated; Robertson suspected that the bartender was the individual who had used the weapon and that he could have been carrying a concealed weapon; and that the plaintiff, at least in Tush’s opinion, was behaving evasively, nervously, and suspiciously during the premises search. Thus, to the extent that Tush assisted Robertson’s search and arrest of Painter, he is protected by qualified immunity even if Robertson’s actions violated the
Accordingly, the lower court’s entry of summary judgment for defendant Robert Tush is AFFIRMED, whereas the summary judgment for defendant William Robertson is REVERSED. The case is REMANDED for further proceedings consonant with this decision.
BATCHELDER, dissenting in part.
For the reasons that follow, I respectfully dissent from the majority’s holding that Defendant Robertson is not entitled to summary judgment on grounds of qualified immunity on Painter’s claim of false arrest. Relying on Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir. 1999), the majority holds—wrongly, in my view—that Painter’s affirmative defense under
(C) It is an affirmative defense to a charge under this section of carrying or having control of a weapon other than dangerous ordnance, that the actor was
not otherwise prohibited by law from having the weapon, and that any of the following apply:
. . . .
(2) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon himself or a member of his family, or upon his home, such as would justify a prudent man in going armed.
In Estate of Dietrich, the plaintiffs were a former township police chief and his son, who began performing armed money courier services which current township police officers had been performing, both on and off duty. Because of inquiries instigated by the plaintiffs, the township police department stopped providing the courier service. The defendants were members of the township police department; indeed one was the chief who ordered that the police department vehicles could no longer be used to provide courier service. Id. at 1009. One afternoon, when the defendants knew that the plaintiffs would be armed and performing their legitimate security duties, they maliciously arrested the plaintiffs and charged each of them with carrying a concealed weapon in violation of
The district court in Estate of Dietrich found that the record proved conclusively that prior to the arrest, the arresting officers “knew who the plaintiffs were and also were fully aware that the plaintiffs were carrying firearms....” Id. at 1012. This Court affirmed the district court’s denial of qualified immunity, stating that “all the defendants in this matter knew, prior to arresting the Dietrichs, that the plaintiffs were legitimately armed ... [and] that the plaintiffs were justified—by statute—in carrying concealed weapons during their work.” Id. at 1011–12. We held that the arresting officers were not entitled to qualified immunity on the plaintiffs’ unlawful arrest claim because the affirmative defense provisions of
The case before us here does not present the kind of unique factual circumstances found in Estate of Dietrich, where it was uncontroverted that the arresting officers knew, prior to arrest, that the actors were carrying concealed weapons, knew by virtue of the plaintiffs’ backgrounds that they were “not otherwise prohibited by law from having the weapon[s],” and knew that their carrying of concealed weapons was justified under the statute. Here, except for Defendant Robertson, the officers did not know Painter at all; none of the officers knew that he was armed—indeed, the point of the search was to determine whether he had a gun; they certainly did not know, nor could they reasonably have known, that Painter was “not otherwise prohibited from carrying a concealed weapon” under the statute.
The majority states that Robertson “knew that Painter was a law-abiding model citizen who had never caused any trouble,” but there simply is no evidence in the record to support this statement. The sum total of the evidence pertaining to Robertson’s knowledge of Painter is (1) Painter’s affidavit statement that he and Robertson “had known each other for a long time before the night in question” and that on that night, Robertson had called
a 1987 graduate of the United States Military Academy at West Point, ... an honorably discharged Captain who had served five years in the United States Army as ... a military police commander at a major army base wherein he trained and supervised military police officers [, and a man who] had never been arrested, jailed, or charged with any crime.
Unlike the record in Estate of Dietrich, the record in this case does not conclusively establish that any of the arresting officers knew that the plaintiff was not otherwise prohibited from having a weapon, and that one of the four statutory justifications applied to his concealed possession of it.
The majority opinion establishes that for the purposes of qualified immunity in this circuit, “an examination of all facts and circumstances within an officer’s knowledge at the time of arrest” on a charge of carrying a concealed weapon is no longer enough. Estate of Dietrich, 167 F.3d at 1012 (citing Carroll, 267 U.S. at 162). Rather, an officer now must unilaterally determine whether the suspect is both justified under the statute and not otherwise prohibited from carrying a concealed weapon before that officer may effect an arrest. This is an obvious departure from our precedent and certainly was not clearly established in this Court or any court at the time of Painter’s arrest. For the foregoing reasons, I dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Lamont T. MONGER, Defendant-Appellant.
No. 98-5446.
United States Court of Appeals, Sixth Circuit.
Argued: June 15, 1999. Decided and Filed: July 21, 1999.