As to Agent Arwine, however, the majority concluded that a jury issue had been created as to whether he had acted in reasonable good faith and remanded the action for trial as to him.Rodriguez v. Ritchey, 539 F.2d 394 (5th Cir. 1976).
Indeed, we have "made explicit . . . that a participant in an arrest, even if not the arresting officer, may be liable if he knew the arrest lacked any constitutional basis and yet participated in some way." Wilkerson, 736 F.3d at 980 (discussing Jones); see also Jordan, 487 F.3d at 1354 ("In this Circuit, a non-arresting officer who instigates or causes an unlawful arrest can still be liable under the Fourth Amendment." (citing Rodriguez v. Ritchey, 539 F.2d 394, 400 (5th Cir. 1976))). But
To escape liability, the policeman must establish both that he in fact believed he had probable cause and that this belief was reasonable. Rodriguez v. Ritchey, 539 F.2d 394, 400-01 (5th Cir. 1976); Foster v. Zeeko, 540 F.2d 1310, 1313 (7th Cir. 1976); Bryan v. Jones, 530 F.2d 1210, 1213-14 (5th Cir. 1976) ( en banc); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1347 (2d Cir. 1972). Typically, the policeman is shielded from liability if the basis for his belief in probable cause was a mistake in fact, provided the mistake was reasonable.
A false arrest claim is not cognizable where, as here, police have obtained an arrest warrant. See Rodriguez v. Ritchey, 539 F.2d 394, 401 (5th Cir. 1976) ("The law is plain that an officer who arrests someone pursuant to a valid warrant has no liability for false arrest . . . ."); see also Brown, 608 F.3d at 734 ("An arrest without a warrant and lacking probable cause violates the Constitution and can underpin a § 1983 claim, but the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.") (emphasis added). Here, it is undisputed that Law obtained a warrant, and Moore does not challenge whether the police had a sufficient basis of probable cause to support that warrant.
In this Circuit, a non-arresting officer who instigates or causes an unlawful arrest can still be liable under the Fourth Amendment. Rodriguez v. Ritchey, 539 F.2d 394, 400 (5th Cir.1976). In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered before 1 October 1981.
Those decisions appear to be in line with the general trend in the appellate courts to incorporate § 1983 law into Bivens suits. See, e.g., Paton v. La Prade, 524 F.2d 862, 871-72 (3 Cir. 1975); Rodriquez v. Ritchey, 539 F.2d 394, 399-400 (5 Cir. 1976), modified upon rehearing in banc, 556 F.2d 1185 (1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978). See also Note, Damage Awards for Constitutional Torts: A Reconsideration after Carey v. Piphus, 93 Harv.L.Rev. 966, 973 and n. 50 (1980).
Where an officer lawfully performs duties imposed by law or follows the directions of a supervisor that are fair and reasonable on their face, the officer should be deemed to have acted reasonably as a matter of law. Mundy v. State of Georgia, 586 F.2d 507, 508 (5th Cir. 1978); Wolfel v. Sanborn, 555 F.2d 583, 590-94 (6th Cir. 1977); Rodriguez v. Ritchey, 539 F.2d 394, 401-02 (5th Cir. 1976), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1977); Glasson v. City of Louisville, 518 F.2d 899, 907-11 (6th Cir. 1975); Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975). We reject the argument made by the Bureau, Laird, Beamer and Wilson that this action is barred by the Ohio Statute of Limitations. Crawford v. Zeitler, 326 F.2d 119, 121 (6th Cir. 1964).
This definition of an individual officer's tort duty under Bivens has been widely accepted.See, e. g., G. M. Leasing v. United States, 560 F.2d 1011, 1015 (10 Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978); Ervin v. Ciccone, 557 F.2d 1260, 1262 (8 Cir. 1977); Rodriguez v. Ritchey, 539 F.2d 394, 400-01 (5 Cir. 1976); Mark v. Groff, 521 F.2d 1376, 1379-80 (9 Cir. 1975); Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); Tritsis v. Backer, 501 F.2d 1021, 1022-23 (7 Cir. 1974). While this court has never directly held that a federal law enforcement officer is entitled to assert the good-faith and reasonable-belief defenses when confronted with a Bivens claim, we have so held as to local law enforcement officers who are sued under 42 U.S.C. § 1983. Hill v. Rowland, 474 F.2d 1374 (4 Cir. 1973).
The following cases have extended the applicability of Bivens, or have indicated that they look with favor on such an extension: Gagliardi v. Flint, 564 F.2d 112 (3rd Cir. 1977); Davis v. Passman, 544 F.2d 865 (5th Cir. 1977) (extending Bivens to cover Fifth Amendment due process); Rodriguez v. Ritchey, 539 F.2d 394 (5th Cir. 1976) (extending to cover investigatory officers who did not participate in the actual arrest); White v. Boyle, 538 F.2d 1077 (4th Cir. 1976) (retaliatory IRS investigation could give rise to a Bivens action); Paton v. La Prade, 524 F.2d 862 (3rd Cir. 1975) (First Amendment); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1975) (favorable dictum); States Marine Line, Inc., v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (customs officers liable for improper performance of duties — Fifth Amendment due process); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972) (extended to Fifth Amendment fair trial rights); Butler v. United States, 365 F. Supp. 1035 (D.Hawaii 1973) (First Amendment); Washington v. Brantley, 352 F. Supp. 559 (M.D.Fla. 1972) (favorable dictum).
The following cases have been favorable to extending or have extended the applicability of Bivens:Davis v. Passman, 544 F.2d 865 (5th Cir. 1977) (extending Bivens to cover Fifth Amendment due process); Rodriguez v. Ritchey, 539 F.2d 394 (5th Cir. 1976) (extending to cover investigatory officers who did not participate in the actual arrest); White v. Boyle, 538 F.2d 1077 (4th Cir. 1976) (retaliatory IRS investigation could give rise to a Bivens action); Paton v. La Prade, 524 F.2d 862 (3rd Cir. 1975) (First Amendment); Dry Creek Lodge Inc. v. United States, 515 F.2d 926 (10th Cir. 1975) (favorable dictum); States Marine Line, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (Customs officers liable for improper performance of duties — Fifth Amendment due process); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972) (extended to Fifth Amendment rights to a fair trial); Butler v. United States, 365 F. Supp. 1035 (D.Hawaii 1973) (First Amendment); Washington v. Brantley, 352 F. Supp. 559 (M.D. Fla. 1972) (favorable dictum). The following district courts have limited Bivens to Fourth Amendment cases: Smothers v. Columbia Broadcasting System, 351 F. Supp. 622, 626 n. 4 (C.D.Cal. 1972); Davidson v. Kane, 337 F. Supp. 922 (E.