474 F. 2d 1374 - Hill v. W a Rowland B S

This is a civil action wherein the plaintiff, Mrs. Cornelius Cuthbertson Hill, seeks to recover compensatory and punitive damages from the defendants, police officers of the City of Charlotte, North Carolina.

On August 18, 1969, Mrs. Hill, black, a 40-year old widow, was employed as a taxi-driver in Charlotte. At about 10 A.M. on that day, she parked her cab across from, and started across the street toward, an establishment known as "Mr. Fred's," her purpose, as subsequently stated by her, being to arrange with the proprietor to have her shoes repaired at a later date.1 "Mr. Fred's" had been under surveillance by the Charlotte police during the preceding week due to an informant's tip that an illegal lottery2 was there being operated. On three separate days during the surveillance, and shortly after several other persons had entered and left, Mrs. Hill had been observed entering the premises, staying only one or two minutes, then returning to her taxi and driving away. At the moment of her arrival on the morning of August 18, Charlotte police officers, including defendants W. A. Rowland and B. S. Treadaway, who were inside the premises known as "Mr. Fred's" executing a search warrant, had seized certain evidence of an illegal lottery and had arrested several persons present including the proprietor who was found with "tickets," money and an adding machine on a table.

Mrs. Hill testified that she had started across the street after parking her cab when she saw a policeman, not in uniform, who was a "boyfriend" of hers leaning across a car parked in front of her cab, and she spoke to him but he did not answer. Someone at that time, "was hollering something about don't go there, or something." Mrs. Hill "started back across the street to slap the hell out of him because he didn't speak to me," but was, she claimed, grabbed from behind by a white man who pushed her into "Mr. Fred's." She was not able to identify the person who had so pushed her and there was no evidence that the officers inside the premises being searched had any knowledge that her entry was involuntary or accomplished by force. Upon her entrance, officers Treadaway and Rowland recognized Mrs. Hill as the black female observed on previous occasions during the surveillance. According to his testimony, officer Treadaway had been told by a reliable informer that she was periodically "taking away the [lottery] tickets." Mrs. Hill was officially placed under arrest by officer Rowland.

Mrs. Hill was searched by a female police officer who was participating in the raid and who testified that she first identified herself as "Officer Gillespie."3 No evidence of participation in a lottery was found on plaintiff's person. A pistol, which was described as a ".38 special" and which she carried in a holster on her hip, was taken from her. Mrs. Hill testified: "And then she [the female officer] started unbuttoning my blouse. I had on a blue blouse and she started unbuttoning it down the front. And then I started cursing and reached for my gun . . . and they grabbed my gun because I was going to shoot anybody trying to take my clothes off." The female officer denied searching the "upper portion of Mrs. Hill" and testified that the gun was confiscated prior to the search.

Mrs. Hill was taken before a Magistrate at the recommendation of defendant Treadaway. Evidence was presented to the Magistrate but, at the request of Treadaway, no warrant was issued for her arrest and she was released. However, the police kept her pistol temporarily and required her to produce evidence of lawful ownership. She was released and upon her return with persuasive evidence of lawful ownership of the pistol it was delivered to her.

Mrs. Hill instituted this suit in the district court against the several named defendants and advanced various theories of liability. The case ultimately went to the jury for a determination whether the arresting officers, Rowland and Treadaway, were liable to Mrs. Hill for (1) a violation of her civil rights under 42 U.S.C. Sec. 1983, which violation assertedly arose from her warrantless arrest without probable cause, (2) false imprisonment, and (3) assault and battery, the latter two theories presented in plaintiff's complaint under the common law of North Carolina. The jury found each defendant liable under the first two theories but not under the third, and further found Mrs. Hill entitled to recover damages in the amount of $2.50 from each of the two defendant officers for each wrong. Rowland and Treadaway prosecute this appeal, not because of the amount of damages awarded but, as they say, because of the principle involved.

The issue is not unimportant. It concerns the standards by which police officers are to be governed and which they must observe and satisfy when making an arrest without a warrant if they are to avoid civil liability under Sec. 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. Sec. 1983. In their answer to the complaint, under "First Defense," the police officers alleged a "good faith" defense by stating: ". . . Plaintiff was temporarily detained in good faith by some police officers on suspicion of operating a lottery, with reasonable grounds and probable cause to do so." Under "Motions" in their answer, the police officers additionally stated that they were acting upon reasonable grounds and probable cause while attempting to locate and arrest persons charged in warrants with criminal offenses. The defendants requested that the jury be instructed as follows:

"4. The defense of good faith and probable cause is available to the defendants, and if you find that any defendant arrested the plaintiff, and that said defendant reasonably believed in good faith that the arrest was constitutional, then it would be your duty to render a verdict for the defendant even though the arrest was in fact unconstitutional."

This requested instruction was based upon Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a case which arose under Sec. 1983 and which concerned the standard of civil liability for arrests made under a law later held unconstitutional. The Court there stated:

"We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under Sec. 1983." 386 U.S. at 557, 87 S.Ct. at 1219.

The district court refused to instruct the jury as requested for the stated reason that Pierson v. Ray "is not a pertinent authority in this case." Instead, the court instructed the jury:

"The standard for arrest without a warrant amounts, instead, to a requirement that the arresting officer have probable cause and this is an objective standard, not personal to the law enforcement officer, and this standard has been very succinctly expressed by the Supreme Court a few years ago in Beck against Ohio [379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)] as follows: Whether an arrest is constitutionally valid depends upon whether at the moment the arrest was made the officers had probable cause to make it, whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man to (sic) [in] believing that the petitioner had committed or was committing an offense, bearing in mind that as in the case of searches the warrant is the procedure of choice.

* * *

"Now, with regard to the circumstances that occurred after the original arrest, here again, as the Court advised you a while ago, unless the original arrests were lawful, there could be no justification for doing the things that were done after she had been searched unless there remained as of the time of the search some reason to keep her, not just suspicion, not just investigation, but some continuing legal reason within the standards that have been advanced, then there's been no showing of any basis for her continued imprisonment and she would be entitled to recover for whatever damages she sustained by being taken to the police station and fingerprinted and kept and then having to go to the trouble of getting her gun back." [Emphasis supplied]

In addition to the confusion apparent in the charge as quoted immediately above the court made no attempt to discuss or clarify N.C.Gen.Stat. Sec. 15-41 (1) as the court would interpret and apply it in the context of a civil action such as here involved. Although the "good-faith" issue was discussed at length by counsel and the court in relation to the constitutional question under Sec. 1983, there is nowhere in the record to be found any argument or discussion as to the applicability of the "good-faith" defense to the action for false imprisonment under either the North Carolina statute or the common law. Independent investigation indicates the possibility that conflicting inferences might be drawn from existing authority. Cf. Perry v. Gibson, 247 N.C. 212, 100 S.E.2d 341 (1957), with Hicks v. Niven, 210 N.C. 44, 185 S.E. 469 (1936).

In determining the proper disposition of this appeal there is an additional consideration. It is clear from the transcript of the trial proceedings, from the instructions of the trial judge, and from the issues as to liability as propounded to the jury, that the predominant issue at trial was the one presented under Sec. 1983 and the members of the jury were given little or no information or instruction which would enable them mentally to separate successfully the issue of false arrest from the issue of false imprisonment. The court submitted to the jury the following questions as to each defendant, indicating that each question be answered categorically:

Was the plaintiff denied due process of law by arrest without probable cause under the circumstances, or otherwise . . . .

Was the plaintiff unlawfully arrested and deprived of her liberty . . . .

The jury answered "Yes" to each question as to each defendant. The first question, it would seem, was designed to present for determination the issue arising under Sec. 1983; the second, apparently, was intended to present for determination the issue of false imprisonment under North Carolina law.

Without reference to the law of North Carolina we note that an improper or illegal arrest and a period of detention, of whatever length, may carry with it an implication of false imprisonment. The jury, in answering the second question in the affirmative, may have found that Mrs. Hill was falsely imprisoned due solely to the fact that they had determined that she was arrested without probable cause. The questions to be answered categorically reflect this situation. It would appear that if the first question were answered "Yes" the second could not be answered otherwise than in the affirmative. However, the determination in response to the first question above was made under improper instructions from the court. Thus we find it necessary to reverse and remand for a new trial as to both issues which were determined by the jury in favor of the plaintiff.

Reversed and remanded.