                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                 JUN 24 2002
                         FOR THE TENTH CIRCUIT
                                                            PATRICK FISHER
                                                                      Clerk

LISA MILLER, individually and as
mother and next friend of Kentrell
Miller, a minor, and Me’Lisa Miller,
a minor,

             Plaintiff - Appellant,

v.                                          Nos. 01-6128 & 01-6142
                                           (D.C. No. CIV-00-1332-M)
CITY OF NICHOLS HILLS POLICE                   (W.D. Oklahoma)
DEPARTMENT; JONATHAN
JENNINGS, individually and in his
official capacity as a police
 officer for the City of Nichols Hills;
JEFF SUTHERLAND, individually
and in his official capacity as a police
officer for the City of Nichols Hills;
STEWART MEYERS, as Mayor and
chief policy maker for the City of
Nichols Hills; DOUGLAS HENLEY,
as City Manager and chief policy
implementor for the City of Nichols
Hills; DR. WARREN FELTON, in his
official capacity as City Councilman
and policy maker for the City of
Nichols Hills; GREG RAWLS, in his
official capacity as City Councilman
and policy maker for the City of
Nichols Hills; RICHARD MASK, as
Chief of Police and chief policy maker
for the Nichols Hills Police
Department,

             Defendants - Appellees.
                           ORDER AND JUDGMENT           *




Before EBEL , BARRETT , and MURPHY , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument. 1

      Plaintiff Lisa Miller filed an action under 42 U.S.C. § 1983, on behalf of

herself and her children, Kentrell and Me’Lisa Miller, claiming that defendants

Jonathan Jennings and Jess Sutherland, police officers with the City of Nichols

Hills, Oklahoma Police Department, violated their civil rights by arresting them

without probable cause and using excessive force against them during the arrest.

Miller also named the City of Nichols Hills Police Department and numerous

other city officials (the “City Defendants”), claiming the City’s policies and



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
     The Millers filed two separate notices of appeal of the district court’s
judgment. Appeal No. 01-6142 has been consolidated with appeal No. 01-6128.

                                         -2-
procedures allowed police officers excessive discretion and were insufficient to

prevent officers from violating the Millers’ constitutional rights. The Millers also

claimed the City Defendants failed to adequately train and supervise its police

officers.

      The district court granted partial summary judgment in favor of the

defendants. It dismissed all of the wrongful arrest claims, ruling that Jennings

and Sutherland were entitled to qualified immunity because the Millers failed to

show these defendants arrested them without probable cause. For the same

reason, the court ruled that the Millers failed to demonstrate that any policies of

the City Defendants resulted in a wrongful arrest. The district court also

dismissed the failure to train claim, ruling the Millers produced no evidence to

support their claim that the City Defendants had failed to implement and maintain

adequate policies and procedures to properly hire, train and supervise police

officers. The district court denied summary judgment with respect to the

excessive force claims, however. After a trial, the jury returned a verdict in

favor of the defendants.

      The Millers appeal the grant of summary judgment on the wrongful arrest

claims and challenge certain jury instructions. This court exercises appellate

jurisdiction under 28 U.S.C. § 1291, and affirms.




                                         -3-
                                 BACKGROUND

      On the afternoon of March 12, 2000, Officer Jennings observed a blue Ford

Explorer, Miller’s vehicle, traveling ten miles over the posted speed limit with an

expired licence tag. He radioed the police dispatcher and requested a check of the

vehicle. The dispatcher advised Jennings that the vehicle was registered in

Oklahoma by Lisa Miller. She asked if the vehicle had a Canadian tag, and

Jennings replied it did not. The dispatcher informed Jennings that the vehicle’s

tag was reported by the National Crime Information Center (NCIC) computer as

being from a stolen vehicle in Canada.

      Jennings initiated a felony stop of Miller’s vehicle when Officer Sutherland

arrived as back-up. Jennings ordered the driver to turn the vehicle off and

ordered all the occupants to put their hands on the vehicle’s headliner. The

officers aimed their weapons at the driver’s door and ordered the driver out of the

car. When Miller got out, Jennings ordered her to face the front of the vehicle

and keep her hands in sight, then to go down to her knees and cross her ankles.

Miller complied, and then Jennings asked all the remaining occupants to exit.

Me’Lisa, twelve, and Kentrell, thirteen, exited the vehicle and went down to

their knees.

      Jennings approached Miller, holstered his gun, placed her in handcuffs, and

explained to her that the vehicle had been reported as stolen. Miller told him she

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owned the vehicle, that it was not stolen and that she had not reported it stolen.

Jennings patted Miller’s jacket for weapons and placed her in the back of a police

car. He informed her if there was a mistake, the officers would get it cleared up

right away. Sutherland patted down the children, checking for weapons, and

placed them in the back of the other police car. The officers briefly examined the

car, finding no indication of theft, and contacted the dispatcher again.

      This time the dispatcher informed Jennings that the stolen vehicle might be

a motorcycle from Canada and that she was attempting to verify this information.

Jennings explained this to Miller, removed her handcuffs, asked her to remain in

the car, and said she would be released if this information could be verified.

Shortly thereafter, the dispatcher informed the officers that the stolen vehicle was,

in fact, a motorcycle from Canada with the same tag number as Miller’s Explorer.

The officers released Miller and her children without citing her for speeding or

the expired tag. Jennings gave her his card and offered to help expedite renewal

of her tags. The entire traffic stop lasted less than twenty minutes.

      The next day, the City of Nichols Hills Police Department discovered the

faulty NCIC report was the result of a statewide change in the NCIC response

procedure the previous week. Previously, a tag number entered on the teletype

would automatically default to the Oklahoma database and the dispatcher did not

need to enter the state of the vehicle’s tag. After the change, the database


                                         -5-
searched all available data on the NCIC system. However, the City of Nichols

Hills had not been informed of the change. When the dispatcher entered Miller’s

vehicle tag without limiting her search to Oklahoma, the NCIC system showed

a match for Miller’s vehicle but the dispatcher was unaware at the time of

her initial report to Jennings that NCIC was matching a vehicle from outside

Oklahoma.


                                      ANALYSIS

      We review the district court’s grant of summary judgment de novo while

examining the evidence and all reasonable inferences to be drawn therefrom in

the light most favorable to the nonmoving party.   Cooperman v. David , 214 F.3d

1162, 1164 (10th Cir. 2000). Summary judgment is proper if the record shows

“that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                              Constitutionality of Arrest

      The Millers contend the district court erred in granting summary judgment

on their wrongful arrest claims, asserting there was no probable cause to effect

the warrantless arrest.

      We analyze the constitutionality of a warrantless arrest under the
      probable cause standard. A police officer may arrest a person
      without a warrant if he has probable cause to believe that person
      committed a crime. Probable cause exists if facts and circumstances
      within the arresting officer’s knowledge and of which he or she has

                                           -6-
      reasonably trustworthy information are sufficient to lead a prudent
      person to believe that the arrestee has committed or is committing an
      offense. When a warrantless arrest is the subject of a § 1983 action,
      the defendant arresting officer is entitled to immunity if a reasonable
      officer could have believed that probable cause existed to arrest the
      plaintiff. Even law enforcement officials who reasonably but
      mistakenly conclude that probable cause is present are entitled to
      immunity.

Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995) (quotations and citations

omitted); see also Hunter v. Bryant , 502 U.S. 224, 228 (1991) (“Probable cause

exist[s] if ‘at the moment the arrest was made . . . the facts and circumstances

within [the officers’] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing’” a crime had

been committed) (quoting   Beck v. Ohio , 379 U.S. 89, 91 (1964)).

      In arguing that the officers lacked probable cause, the Millers misstate the

facts in the record. They incorrectly claim that Jennings could not and did not

articulate the crimes he believed had been committed when he effectuated the

stop. Appellant’s Opening Br. at 13. Jennings did, in fact, articulate crimes he

reasonably believed had been committed, presenting undisputed testimony that he

stopped the vehicle because of its excessive speed, its expired tag and the

dispatcher’s report from NCIC that the vehicle was reported as stolen. The

Millers claim the dispatcher informed Jennings prior to the stop that the stolen

vehicle was a motorcycle from Canada.    Id. at 3. In fact, the undisputed evidence

of the recorded conversation between Jennings and the dispatcher demonstrates

                                         -7-
that, at the time of the stop and the arrest, Jennings only knew the tag on the

vehicle was reported as being from a stolen vehicle and did not know the stolen

vehicle was a motorcycle. The Millers claim Jennings knew the driver was

a woman, consistent with the dispatcher’s report that the vehicle was owned by

a Lisa Miller. Id. at 12. In fact, the defendants presented undisputed evidence

that the vehicle had dark, tinted windows and the officers were unable to see the

gender, age, number or race of the persons in the vehicle prior to the stop.

      The Millers contend it was not reasonable for Jennings to have made the

arrest without further investigation into the dispatcher’s report. We disagree.

The officers were entitled to rely on the reasonably trustworthy information

provided to them by the dispatcher, even though the information was later

determined to be faulty or inadequate.    See United States v. Hensley , 469 U.S.

221, 231 (1985) (holding that police officers are entitled to rely on the reasonable

information relayed to them from a police bulletin);   United States v. Mounts ,

248 F.3d 712, 715 (7th Cir. 2001) (holding officers are entitled to rely on

reasonable information relayed from police dispatcher and it is immaterial that

dispatcher’s information is later determined to be faulty or inadequate). In

particular, it was objectively reasonable for the officers to rely on the dispatcher’s

NCIC report of a stolen vehicle report matching the tag on Ms. Miller’s vehicle.

See United States v. Shareef , 100 F.3d 1491, 1505-06 (10th Cir. 1996) (upholding


                                            -8-
as reasonable officer’s reliance on dispatcher’s mistaken report of a NCIC match,

rejecting argument officer should have conducted further investigation prior to

investigative stop). The NCIC report indicating that the vehicle had been

reported as stolen, as relayed to the officers by the dispatcher, was sufficient to

provide probable cause for the arrest.      Duckett v. City of Cedar Park , 950 F.2d

272, 280 (5th Cir. 1992) (holding that an NCIC computer printout is sufficient to

establish probable cause for an arrest);    United States v. Roper , 702 F.2d 984, 989

(11th Cir. 1983) (finding probable cause to arrest where officer radioed NCIC and

learned of warrant); see also United States v. Hines      , 564 F.2d 925, 927 (10th Cir.

1977) (noting that information from NCIC computer bank “has been routinely

accepted in establishing probable cause for a valid arrest”). Thus, we agree with

the district court that the undisputed facts, viewed in the light most favorable to

the Millers, establish that the officers had probable cause to make the warrantless

arrest.

                                      Jury Instructions

          The Millers contend the district court erred in instructing the jury that it

had determined the arrests were lawful. The Millers fail to identify in their brief

where any objection to this instruction was raised and ruled upon.        See 10th Cir.

R. 28.2(C)(2) and 10th Cir. R. 28.2(C)(3)(b). Furthermore, for the reasons stated

above, this statement was a correct statement of the law and was necessary to


                                             -9-
ensure that the jury did not proceed on an incorrect belief that the defendants

lacked probable cause to make the arrests.      See Martinez v. City of Albuquerque   ,

184 F.3d 1123, 1127 (10th Cir. 1999).

       Finally, the Millers contend the reasonable mistake jury instruction

prejudiced them because it included the statement that “[u]nless you find from all

the facts and circumstances as they appeared to the officers at the scene that

no reasonable officer would have done what these officers did, then you should

find for defendants.” Appellant’s App. at 19. Citing no authority, the Millers

contend the “no reasonable officer” phrase prejudiced them by requiring they

prove a negative. We find no error. The instruction correctly informed the jury

that the constitutionality of the defendant officers’ use of force “must be judged

from the perspective of a reasonable officer on the scene,” judged by an objective

standard. Graham v. Connor , 490 U.S. 386, 396 (1989). The “unless . . . no

reasonable officer” phrase used in the instruction is simply the double negative

equivalent of “a reasonable officer.”   Napier v. Town of Windham , 187 F.3d 177,

183-84 (1st Cir. 1999).




                                             -10-
     The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.


                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




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