
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1895                                 LUIS VARGAS-BADILLO,                                Plaintiff - Appellant,                                          v.                             ANDRES DIAZ-TORRES, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dom nguez, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Peter  John Porrata,  with whom  Law Offices  of Peter  John               ___________________              ___________________________          Porrata was on brief for appellant.          _______               Sylvia    Roger-Stefani,   Assistant    Solicitor   General,               _______________________          Department of  Justice,  with whom  Carlos  Lugo-Fiol,  Solicitor                                              _________________          General and Edda Serrano-Blasini,  Deputy Solicitor General, were                      ____________________          on brief for appellees.                                 ____________________                                     May 30, 1997                                 ____________________                    TORRUELLA, Chief Judge.  Luis Vargas-Badillo ("Vargas")                    TORRUELLA, Chief Judge.                                ___________          brought this damages suit  under 42 U.S.C.   1983,  claiming that          he was illegally arrested and subjected to excessive force by the          defendants, two Puerto Rico police officers.1  The district court          found that the defendants were entitled to  qualified immunity on          the unlawful arrest claim,  and granted their motion for  summary          judgment.   The court also determined that Vargas failed to state          a  proper  claim  of excessive  force.    Vargas  appeals on  the          unlawful arrest claim,  arguing that there was  no probable cause          to support his warrantless arrest.2  We affirm.                                      BACKGROUND                                      BACKGROUND                    In the summary judgment context, we review all material          facts in genuine dispute  in the light most favorable to the non-          movant, here Vargas.   Serrano-Cruz v. DFI Puerto Rico,  109 F.3d                                 ____________    _______________          23, 24 (1st Cir. 1997).  Vargas was one of three men who  were in          a  Puerto Rico  Aqueducts  and Sewers  Administration truck  that          collided   with   a  car   driven  by   Minerva  Delgado-Gonz lez          ("Delgado").  After the collision, which took place at night on a          hilly road, Vargas, Delgado, and Vargas' two colleagues agreed to          meet at a nearby police station to report the accident.                                        ____________________          1  Vargas initially named as defendants an unnamed supervisor and          Ismael Betancourt,  the superintendent of the  Puerto Rico Police          Department.  The actions against these two other defendants  were          dismissed through partial judgments, at which point the remaining          defendant officers filed their summary judgment motion.          2   On  appeal, Vargas  does not  challenge the  district court's          determination  regarding  his  failure  to  state  a   cognizable          excessive force claim.                                          -2-                    At the  police station, the defendant  police officers,          Andr s  D az-Torres and  Andr s Maldonado-Castro,  questioned the          four  persons.   Delgado told  the officers  that Vargas  was the          driver of  the truck -- a  fact that Vargas disputes  -- and that          she thought  that he and the  other men smelled of  alcohol.  She          also stated that the men had shiny eyes and staggered a bit.                    When  the   officers  sought  out  Vargas  for  further          questioning,  he   was  outside  the  police   station,  drinking          something from a plastic cup.  After the officers asked  to speak          with him, he threw down his  cup, entered the station, and  began          smoking a cigarette.   When the officers  ordered him to put  out          the cigarette, Vargas  stubbed it out with his  shoe on the floor          of the police station.   Officer D az then told Vargas to dispose          of  the cigarette in  a trash can.   Vargas denies  being rude or          aggressive toward  the officers, although he does not deny having          taken these particular actions.                      Immediately  thereafter,  the  police  officers  placed          Vargas under arrest  for driving under the  influence of alcohol,          under Section 5-801 of  the Puerto Rico Vehicle and  Traffic Law.          P.R.  Laws  Ann. tit.  9,    1041 et  seq.   They  handcuffed and                                            ________          searched him before transporting him to a police station that had          a working breathalyzer.   After the breathalyzer test indicated a          blood alcohol level of zero percent, Vargas was released.  Vargas          was  subsequently charged on a count of reckless driving based on          the  same incident   -- a criminal charge  which was dropped once          Vargas' insureragreed to payfor the damagescaused by theaccident.                                         -3-                    The  district court  granted  summary  judgment on  the          basis  of qualified  immunity.    In  so  holding,  it  made  two          findings:   that  the defendants  were presented  with sufficient          evidence to establish probable cause for Vargas' arrest, and that          although the particular warrantless arrest violated a Puerto Rico          statute, it did not violate any clearly established federal law.                                      DISCUSSION                                      DISCUSSION                    We   review  the  district   court's  summary  judgment          determination de  novo.  Ionics,  Inc. v. Elmwood  Sensors, Inc.,                        __  ____   _____________    ______________________          110 F.3d 184, 185 (1st Cir. 1997).                    A.  The Qualified Immunity Standard                     A.  The Qualified Immunity Standard                    The  doctrine  of   qualified  immunity  provides  that          "government  officials performing  discretionary functions .  . .          are  shielded 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).                     ______      __________          Defendant police officers are shielded if either of the following                                                    ______          holds: if  the federal  law  allegedly violated  was not  clearly          established  at  the time  of the  alleged  violation, or  if, at          summary judgment,  there is no  genuine dispute of  material fact          that  would prevent a finding  that the defendants' actions, with          regard  to applying  or following  such clearly  established law,          were objectively reasonable.   See Stella v. Kelley, 63  F.3d 71,                                         ___ ______    ______          73  (1st Cir. 1995).  In effect, qualified immunity protects "all                                         -4-          but the plainly  incompetent or those  who knowingly violate  the          law."  Malley v. Briggs, 475 U.S. 335, 341 (1986).                 ______    ______                    This appeal presents two distinct legal issues.  First,          we  must determine whether the  warrantless arrest of a suspected          misdemeanant,  where  the  misdemeanor   did  not  occur  in  the          officers'  presence,  would  have  violated  clearly  established          federal  law  as of  December 1990.    Second, we  must determine          whether the officers acted in conformity with clearly established          law under an objective reasonableness standard.                    B.  The Clearly Established Law                    B.  The Clearly Established Law                    It  is not disputed that at the time of Vargas' arrest,          clearly  established  Fourth  Amendment  law  required  that  the          defendants have  probable cause  to  support Vargas'  warrantless          arrest.  See Beck v. Ohio, 379 U.S. 89, 91 (1964).  Whether there                   ___ ____    ____          were adequate  grounds for making a  probable cause determination          is addressed in the  next section.  However, Vargas  also appears          to  contend  that  the   officers  violated  a  rule  prohibiting          warrantless arrests  for misdemeanors  that do  not occur  in the          presence  of  the arresting  officers.   We  must  thus determine          whether such a rule was a clearly established part of federal law          in December 1990, when Vargas' arrest occurred.                    Vargas correctly points out that in Puerto Rico, such a          rule exists.    Rule 11  of  the Puerto  Rico  Rules of  Criminal          Procedure provides  that a  warrantless arrest for  a misdemeanor          offense is only permitted where the arresting officer has grounds          to  believe that the  misdemeanor was committed  in his presence,                                         -5-          whereas  no such  presence  requirement  governs the  warrantless          arrest of felons.   See P.R.  Laws Ann. tit.  34, App. II,  R. 11                              ___          (1991).   Driving under the influence of alcohol is a misdemeanor          in Puerto  Rico.   See  P.R. Laws  Ann. tit.  9,    1042  (1976).                             ___          Regardless of  whether the  arresting officers violated  Rule 11,          Vargas  can  offer no  support for  the  proposition that,  as of          December  1990,  this  provision had  a  clear  basis in  federal                                                                    _______          constitutional or statutory  law.  "Mere violations of  state law          do not, of course, create constitutional claims."  Roy v. City of                                                             ___    _______          Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983).            _______                    To  date, neither  the Supreme  Court nor  this circuit          ever  has held  that the  Fourth Amendment  prohibits warrantless          arrests  for  misdemeanors  not  committed  in  the  presence  of          arresting  officers.     Into   this  silent  past,   a  "clearly          established right"  cannot be retrojected.   Moreover, cases from          sister circuits addressing  this very issue  have arrived at  the          opposite conclusion.  See,  e.g., Pyles v. Raisor, 60  F.3d 1211,                                ___   ____  _____    ______          1215 (6th Cir. 1995) (arrestee  cannot recover under section 1983          on  ground  that  officers  violated  state  law  prohibition  of          warrantless arrests for  misdemeanors not committed  in officers'          presence);  Barry  v. Fowler, 902 F.2d  770, 772 (9th  Cir. 1990)                      _____     ______          (same);  Street v. Surdyka, 492 F.2d  368, 371-72 (4th Cir. 1974)                   ______    _______          (same);   see  also  Vargas-Badillo v.  D az-Torres, Opinion  and                    _________  ______________     ___________          Order  of  May 24,  1996, at  12-17  (D.P.R. 1996)  (providing an          illuminating discussion of the questionable constitutional status          of  this longstanding  rule).   Thus, we  conclude that  the only                                         -6-          clearly   established   federal  right   implicated   in  Vargas'          warrantless  arrest in  December  1990 was  his Fourth  Amendment          right not to be arrested without probable cause.                    C.  Objective Reasonableness and Probable Cause                    C.  Objective Reasonableness and Probable Cause                    We next assess whether the second part of the qualified          immunity  standard,  requiring  that  the officers  acted  in  an          objectively reasonable  fashion in  light of clearly  established          law,  was  met.   Here, that  assessment  turns on  the officers'          determination of probable cause.                      In   cases   applying   this   [qualified                      immunity] standard to  police arrests  in                      this  circuit,  an  arrest challenged  as                      unsupported by probable  cause is  deemed                      "'objectively reasonable'"  unless "there                      clearly was no probable cause at the time                      the arrest was made."          Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (quoting Floyd          ____    _________                                           _____          v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)).  In the instant case,             _______          the  evidence  giving rise  to probable  cause to  believe Vargas          drove  under the influence of alcohol was far from substantial --          and yet  we cannot say that  there clearly was  no probable cause          from  the point of view  of reasonable persons  standing in these          police officers'  shoes.  See Farrell, 765  F.2d at 5 ("Despite a                                    ___ _______          finding of no probable cause at a later hearing, a police officer          should not be found liable under    1983 for a warrantless arrest          because the presence of probable cause was merely questionable at          the  time of arrest."); Briggs v. Malley,  748 F.2d 715, 719 (1st                                  ______    ______          Cir. 1984).                                         -7-                    The Fourth  Amendment requirement of probable  cause to          perform a warrantless arrest turns on "whether at that moment 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 that  the petitioner  had          committed  or was committing an offense."   Beck, 379 U.S. at 91;                                                      ____          see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.          ________ _____________    ________          1987)  (quoting  Beck).   Here,  the  following undisputed  facts                           ____          could,  at the very least, have led reasonable police officers to          believe that they were obeying the probable cause requirement  in          proceeding to  arrest Vargas for  driving under the  influence of          alcohol.    The  officers   were  informed  by  Delgado,  whether          correctly  or  incorrectly, that  Vargas  was the  driver  of the          truck.   Delgado also informed the defendants that Vargas and the          other men smelled  of alcohol  and had glassy  eyes.   Reasonable          police  officers  could  further  believe  that  Vargas'  actions          suggested insolence,  and  were thus  the  kind of  actions  that          correlate with drunkenness.                        It is worth emphasizing  that in the qualified immunity          context, we  need not  adjudge whether  these facts  were legally          sufficient  grounds  for  this  warrantless  arrest.3    We  only          conclude that  the  undisputed  facts in  this  case  preclude  a                                        ____________________          3    The evidence  suggesting that  an  arrest was  necessary was          frankly not  very strong  in this  case.   We are concerned,  for          example, that in light of Vargas' cooperation with the police and          voluntary decision to report to the police station, the police so          quickly  chose the option of arrest  and handcuffing, rather than          some  less severe means to  the end of  giving him a breathalyzer          test.                                         -8-          finding that there  was clearly  no probable cause,  or that  "no          reasonably competent  officer would  have found  probable cause."          Prokey v.  Watkins, 942  F.2d 67,  72 n.4 (1st  Cir. 1991).   The          ______     _______          reports and observations suggesting  that Vargas had been driving          while  intoxicated were sufficient  to satisfy  the rule  in this          circuit  that questionable  calls on  matters of  probable cause,          such as  the one in this case, are protected through the doctrine          of qualified immunity.  Cf. Rivera  v. Murphy, 979 F.2d 259, 263-                                  ___ ______     _______          64 (1st  Cir. 1992)  (denying qualified immunity  where arresting          officer provided  "no facts to support his  legal conclusion that          he had  probable cause").   This  kind of  discretionary judgment          call, made  routinely by peace  officers, must be  protected from          the  chilling   effect  of  personal  liability.     Our  binding          precedents addressing  qualified  immunity strike  the  difficult          balance between chilling effective law enforcement and protecting          individual  liberties by reviewing allegedly unlawful warrantless          arrests to determine whether there was clearly no probable cause,          and we  follow these precedents today.  See, e.g., Topp, 994 F.2d                                                  ___  ____  ____          at 48.                                      CONCLUSION                                      CONCLUSION                    For the foregoing reasons,  the district court's  grant          of summary judgment to the defendants is affirmed.                                                   affirmed                                                   ________                                         -9-
