Opinion
Case No. 2:03CV0332 PGC.
June 30, 2004
ORDER DENYING MOTION FOR SUMMARY JUDGMENT (PROBABLE CAUSE)
This civil rights action came to the court on a motion by plaintiff Richard Sergi for summary judgment, claiming that the police did not have probable cause to arrest him. To the contrary, the undisputed facts show that probable cause likely existed for the arrest, so the motion for summary judgement is DENIED.
BACKGROUND
Summary judgement is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Any disputed material facts are viewed in the light most favorable to the non-moving party.
Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152, 1156 (10th Cir. 1994) (citing Fed.R.Civ.P. 56(c)).
Id. (citing Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)).
On April 10, 1999, Richard Sergi experienced a psychotic episode and telephoned for police assistance. Police received a call that Mr. Sergi was likely intoxicated, suicidal, and armed with a .22 caliber rifle that he may have fired into the ceiling of his trailer. Police arrived at Mr. Sergi's home, where Deputy Griffiths, a responding officer, reported hearing bullets whiz by the car he was using for cover and also saw plaintiff shooting toward Deputy Terry. In addition, Chief of Police, Wayne Townsend, also reported that he and Deputy Terry heard bullets whiz past them. Deputy Terry reported that Mr. Sergi stepped out onto the porch of his trailer and appeared to be shooting in the direction where officers were located and at police vehicles.
Mr. Sergi eventually gave himself up and was then taken into custody by several officers where he was transported to VVMC Medical Center and then later booked into jail.
Mr. Sergi later obtained evidence during discovery that all .22 shell casings were found inside his house, suggesting that he only fired into his roof, not at any police officers. He also found testimony from Phil Terry that Mr. Sergi was shooting East to West but that the officers were located North and South of the trailer. Based on this evidence, he now claims that the police did not have probable cause to arrest him.
ANALYSIS
A plaintiff may recover damages under § 1983 for wrongful arrest if he can show that he was arrested without probable cause. Probable cause exists when the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed. The officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion and invasion of privacy involved in the arrest. In an alleged § 1983 violation, the plaintiff has the burden to show that there was insufficient evidence to establish the probable cause for arrest.
Cottrell v. Kaysville City, Utah, 994 F.2d 730, 733 (10th Cir. 1993); see also Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001); Lessman v. McCormick, 591 F.2d 605, 609-11 (10th Cir. 1979).
U.S. v. Maher, 919 F.2d 1482, 1485 (10th Cir. 1990) (citing Brinegar v. U.S., 338 U.S. 160, 175-176 (1949)).
Terry v. Ohio, 392 U.S. 1, 21 (1968).
Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).
It is clear from the facts that an offense was being committed by the plaintiff when he was arrested. Plaintiff does not dispute that he had a rifle and that he was shooting it; in addition, many officers reported that Mr. Sergi was shooting at other officers, and, for purposes of summary judgement, these reports are accepted as true. Despite the fact the evidence discovered arguably suggests that Mr. Sergi was not shooting at the officers, probable cause is based on the information within the officer's knowledge at the time of the arrest, and these officers believed that bullets were traveling toward them. Mr. Sergi has offered no evidence suggesting the police intentionally lied about the information they reported.
In addition, even if Mr. Sergi was not shooting directly at the police officers, he committed an offense for which police would be justified to arrest him simply by shooting his gun into the air in his trailer and endangering his own life and potentially the lives of others. Given the totality of all these circumstances, including the direct observation of Mr. Sergi shooting his gun by several officers, it was reasonable for the officers to believe that an offense was being committed and to take Mr. Sergi into custody.
In addition, to claiming that defendants did not have probable cause to arrest, Mr. Sergi also claims they did not have probable cause to prosecute him. However, since the court has already dismissed the malicious prosecution claim, it need not reach this issue and summary judgment is DENIED.
CONCLUSION
Accordingly, plaintiff's motion for summary judgment on probable cause (#32-1) is denied because this court is unable to say, as a matter of law, there was no probable cause for the arrest.
SO ORDERED.