                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3383
                         ___________________________

                                  Christopher Stoner

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

 Eugene Watlingten, Individually and in his Official Capacity as Deputy Sheriff,
                         St. Francis County, Arkansas

                       lllllllllllllllllllll Defendant - Appellant

Scott Melton; Bobby May; John Does; Tommy Watlingten; Christopher Reynolds

                             lllllllllllllllllllll Defendants
                                     ____________

                      Appeal from United States District Court
                    for the Eastern District of Arkansas - Helena
                                   ____________

                           Submitted: September 24, 2013
                              Filed: November 7, 2013
                                   ____________

Before RILEY, Chief Judge, BRIGHT and BYE, Circuit Judges.
                               ___________

BRIGHT, Circuit Judge.

       Christopher Stoner suffered arrest on suspicion of violating an Arkansas statute
that prohibited a person from possessing a weapon in a vehicle with a purpose to
employ the weapon against a person. See Ark. Code Ann. § 5-73-120(a) (2010)
(amended 2013). After release from any charges, Stoner brought a civil rights action
pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act of 1993 against five
members of the St. Francis County Sheriff’s Office, including Eugene Watlingten, the
arresting officer. The defendants collectively moved for summary judgment of
dismissal. The district court dismissed the claims against other defendants and, as
relevant to this appeal, denied Watlingten’s motion for summary judgment on
Stoner’s false arrest claim, concluding that Watlingten is not entitled to qualified
immunity because there is a genuine issue of material fact as to whether he had
probable cause to arrest Stoner.1 Having jurisdiction under the collateral order
doctrine, see Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999), we affirm.

I.    Background

      A.     Facts2

       On May 25, 2010, Stoner rode as a passenger in a car with Oklahoma license
plates traveling on Interstate 40 in Arkansas. Stoner’s wife was driving. In St.
Francis County, Watlingten, a deputy sheriff, initiated a traffic stop. The legal basis
for the stop is not at issue in this appeal.

      After Stoner’s wife pulled to the shoulder, Watlingten approached the car and
asked Stoner and his wife to produce identification. They complied. Stoner informed
Watlingten that he and his family were traveling through Arkansas and did not live


      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
      2
        For an appeal of a district court’s denial of qualified immunity, “we accept the
district court’s findings of fact taken in the light most favorable to [Stoner].” Roberts
v. City of Omaha, 723 F.3d 966, 969 n.1 (8th Cir. 2013).

                                          -2-
within the state. In response to Watlingten’s questioning, Stoner explained that he
was an ammunition salesman. Watlingten asked if any firearms or ammunition were
inside the car. Stoner admitted that there was a 9-millimeter handgun, a .22 caliber
pistol, and an AK-47 in the trunk, along with some ammunition. Watlingten asked
Stoner to show him the firearms. Without objection, Stoner removed the firearms
from a guitar case in the trunk and showed them to Watlingten.

       Two factual disputes relevant to this appeal exist between the parties: first,
whether the firearms were loaded at the time Stoner removed them from the trunk;
and second, the location of the firearms in the trunk. Stoner admits that the clips for
the firearms were loaded, but claims that the clips were stored separately from the
firearms. In contrast, Watlingten claims that the AK-47 and the 9-millimeter handgun
were loaded and that the AK-47 contained a round in its chamber. As to the location
of the firearms in the trunk, Stoner testified that firearms were stored in a guitar case
that was underneath much of his family’s luggage and that he had to pull out the
luggage in order to gain access to the case. However, Watlingten testified that the
guitar case was “[s]itting on top of [Stoner’s] luggage” in the trunk.

      After Stoner removed the firearms from the guitar case, additional officers
arrived at the scene. Watlingten subsequently arrested Stoner for violating Ark. Code
Ann. § 5-73-120(a), which at the time of the arrest provided:

      A person commits the offense of carrying a weapon if he or she
      possesses a handgun, knife, or club on or about his or her person, in a
      vehicle occupied by him or her, or otherwise readily available for use
      with a purpose to employ the handgun, knife, or club as a weapon
      against a person.

Watlingten transported Stoner to the St. Francis County Jail and booked him at
approximately 2:30 p.m. Stoner was released in less than four hours. After Stoner’s



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release, the deputy prosecuting attorney chose not to pursue the charges, reasoning
that Stoner had a valid defense because he was on a journey at the time he was cited.3

      B.     Procedural History

       Stoner brought this civil rights action pursuant to 42 U.S.C. § 1983 and the
Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to -108, against
five members of the St. Francis County Sheriff’s Office for (1) conducting an
unlawful search and arrest, (2) using excessive force, (3) conspiring to deprive him
of his constitutional rights, and (4) failing to train or formulate appropriate policies.
The defendants moved for summary judgment asserting qualified immunity. Stoner
conceded that the defendants were entitled to summary judgment on his excessive
force and illegal search claims.

       The district court granted summary judgment of dismissal as to all claims
except Stoner’s false arrest claim against Watlingten. On the false arrest claim, the
district court denied summary judgment on the ground that a genuine issue of material
fact existed as to whether Watlingten had probable cause to believe that Stoner
possessed the firearms “with a purpose to employ [them] against another person”
given that the parties disputed whether the firearms were loaded. Given this issue of
fact, the district court also concluded that Watlingten was not entitled to summary
judgment on the basis of qualified immunity.

       Watlingten appeals the denial of summary judgment on the basis that he is
entitled to qualified immunity on Stoner’s false arrest claim.


      3
       The statute under which Stoner was charged provides that “[i]t is a defense to
a prosecution . . . that at the time of the act of carrying a weapon . . . [t]he person is
carrying the weapon when upon a journey.” Ark. Code Ann. § 5-73-120(c)(4) (2010).

                                           -4-
II.   DISCUSSION

      A.     Standard of Review

       “Summary judgment is appropriate when the evidence viewed in the light most
favorable to the nonmoving party presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Coates v. Powell, 639 F.3d
471, 475 (8th Cir. 2011). We review “de novo a denial of summary judgment on
grounds of qualified immunity.” Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir.
2013). For the purposes of our review, we “accept[] as true the facts that the district
court specifically found were adequately supported” in addition to the facts that the
district court likely assumed. Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d
1005, 1008 (8th Cir. 2003). The scope of our interlocutory review, however, is
limited to the issue of qualified immunity, and we may not consider summary
judgment on the merits of the case at this stage. Mettler, 165 F.3d at 1202; see
Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998).

      B.     Qualified Immunity

        The doctrine of qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In reviewing the district court’s
denial of summary judgment on the grounds of qualified immunity, we engage in a
two-part inquiry. We may first determine whether the officer’s conduct violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 201, (2001), overruled in part by
Pearson v. Callahan, 555 U.S. 223, 242 (2009) (holding Saucier’s two-step sequence
is not mandatory). If so, we next consider whether that right was clearly established
at the time of the misconduct. Saucier, 533 U.S. at 201.

                                          -5-
       As to the first inquiry, the district court concluded that there was a factual
dispute as to whether Watlingten had probable cause to arrest Stoner. Because the
parties dispute whether the firearms were loaded at the time they were removed from
the trunk, the district court reasoned that a genuine issue of material fact remained “as
to whether Watlingten had any reason to believe that Stoner possessed the weapons
‘with a purpose to employ’ them ‘against another person,’” which the district court
impliedly concluded was an essential element of Ark. Code Ann. § 5-73-120(a).

       We agree with the district court that the facts, when taken in the light most
favorable to Stoner, show that Watlingten violated Stoner’s constitutional right by
arresting him without probable cause. See Saucier, 533 U.S. at 201-02. “The Fourth
Amendment includes the right to be free from arrest without probable cause.”
Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999). Probable cause is
determined based upon “the objective facts available to the officers at the time of the
arrest.” Sheets v. Butera, 389 F.3d 772, 777 (8th Cir. 2004). It “exists if the totality
of facts based on reasonably trustworthy information would justify a prudent person
in believing the individual arrested had committed . . . an offense at the time of the
arrest.” Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000) (citation omitted)
(internal quotation marks omitted). As we have observed, Stoner testified that the
firearms were not loaded and were stored underneath his luggage at the bottom of the
trunk. Assuming, as we must, that these facts are true, a prudent officer would not
be justified in believing that Stoner possessed the firearms “with a purpose to employ
[them] . . . against a person.”4 See McGuire v. State, 580 S.W.2d 198, 200 (Ark.
1979) (“There is a presumption that a loaded pistol is placed in a car as a weapon.”
(emphasis added)).

      4
        Because we conclude that, viewing the facts in the light most favorable to
Stoner, Watlingten’s conduct violated a constitutional right for the reasons described
above, we do not address whether Watlingten also lacked probable cause on the basis
that Stoner was “on a journey” and therefore had a legal defense to prosecution under
Ark. Code Ann. § 5-73-120(c)(4).

                                          -6-
          Next, we must consider whether Stoner’s right to be free from arrest was
clearly established at the time Watlingten arrested him. See Saucier, 533 U.S. at
201–02. “In determining whether the legal right at issue is clearly established, this
circuit applies a flexible standard, requiring some, but not precise factual
correspondence with precedent, and demanding that officials apply general, well-
developed legal principles.” J.H.H. v. O’Hara, 878 F.2d 240, 243 (8th Cir. 1989)
(citation omitted) (internal quotation marks omitted). We assess the objective
reasonableness of the action “in light of clearly established law and the information
the . . . officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987) (stating
that an officer’s “subjective beliefs” are irrelevant). Under these principles, we frame
the clearly-established question as whether a reasonable officer would have known
that he violated clearly established Fourth Amendment law by arresting Stoner for
violating Ark. Code Ann. § 5-73-120(a). Based on the record, we answer in the
affirmative.

       “The Fourth Amendment right of citizens not to be arrested without probable
cause is indeed clearly established.” Kuehl v. Burtis, 173 F.3d 646, 649 (8th Cir.
1999). However, Watlingten argues that even if his conduct violated a constitutional
right, he is nevertheless entitled to qualified immunity because Ark. Code Ann. § 5-
73-120(a) did not put him on notice that his conduct was unlawful. Indeed, “[i]f the
law did not put [Watlingten] on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate.” Saucier, 533 U.S.
at 202.

      For context, we repeat the specific language of Ark. Code Ann. § 5-73-120(a):

      A person commits the offense of carrying a weapon if he or she
      possesses a handgun, knife, or club on or about his or her person, in a
      vehicle occupied by him or her, or otherwise readily available for use
      with a purpose to employ the handgun, knife, or club as a weapon
      against a person.

                                          -7-
Watlingten contends that the statutory language “with a purpose to employ the
handgun, knife, or club as a weapon against a person” only applies to the third
scenario addressed in the statute: situations in which the weapon is “otherwise
readily available for use.” Watlingten argues that a person violates Ark. Code Ann.
§ 5-73-120(a) when he or she possesses a qualifying weapon “on or about his or her
person” or “in a vehicle occupied by him or her” without regard to that person’s
purpose for possessing the weapon.

       In opposition, Stoner contends that in order to violate Ark. Code Ann. § 5-73-
120(a), a person must have “a purpose to employ the handgun, knife, or club as a
weapon against a person,” regardless of whether the person possesses the weapon on
his person, in a vehicle, or in such a manner that the weapon is readily available for
use. These competing interpretations raise the question of whether Ark. Code Ann.
§ 5-73-120(a) is ambiguous such that Watlingten was not on notice of the conduct it
prohibited.

       On at least three occasions, the Arkansas Supreme Court has stated a person
must have “a purpose to employ the handgun, knife, or club, as a weapon against a
person” in order to violate Ark. Code Ann. § 5-73-120(a).5 See Garcia v. State, 969
S.W.2d 591, 595 (Ark. 1998) (explaining that “the specific purpose of using [a
handgun, knife, or club] as a weapon against another person” is a “statutory element
under § 5-73-120”); Nesdahl v. State, 890 S.W.2d 596, 598 (Ark. 1995) (concluding
that the evidence was sufficient to affirm a conviction under Ark. Code Ann. § 5-73-
120(a) because the fact-finder could reasonably infer that the defendant “possessed
the knife concealed on his person readily available for use with a purpose to employ

      5
       We have also observed that “[i]n Arkansas, a person commits the crime of
‘carrying a weapon’ if he possesses a handgun with a purpose to employ the handgun
against a person.” United States v. Robinson, 670 F.3d 874, 877 (8th Cir. 2012)
(emphasis added).

                                         -8-
it against someone as a weapon” (emphasis added)); McGuire, 580 S.W.2d at 200
(explaining that a prior version of the statute “makes it unlawful for a person to carry
a weapon if he possesses a handgun in certain situations, including possession in a
vehicle occupied by him, . . . with a purpose to employ it as a weapon against a
person.” (emphasis added) (internal quotation marks omitted)). Given this precedent,
a reasonable officer would understand a violation of Ark. Code Ann. § 5-73-120(a)
is predicated upon a person having “a purpose to employ the handgun, knife, or club
as a weapon against a person.”

III.   Conclusion

        Viewing the facts in the light most favorable to Stoner, a fact-finder could
determine that Watlingten (1) violated a constitutional right belonging to Stoner that
was (2) clearly established at the time of the violation. Accordingly, the district court
properly denied summary judgment of dismissal to appellant Watlingten on the false
arrest claim. See Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994)
(“[I]f there is a genuine dispute concerning predicate facts material to the qualified
immunity issue, there can be no summary judgment.”). Therefore, we affirm.
                        ______________________________




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