Unpublished Disposition, 855 F.2d 860 (9th Cir. 1987)

MEMORANDUM^* 

Rod Cowles, Mayor of the City of Banning, California ("Cowles") appeals the grant of summary judgment in his 42 U.S.C. § 1983 action against appellees Louis Davison, Banning Chief of Police and Glynn Johnson, George Lanterman and Terry Ford, Banning police officers. Appellees arrested Cowles for the suspected sexual abuse of his children, on the basis of information provided by the children and Cowles' ex-wife. The facts supporting a determination that the officers possessed probable cause to arrest are set out at length in the district court's opinion. See Memorandum Decision, 1-11 (filed April 1, 1987) contained in the Excerpt of Record at 106. The children later recanted their stories after the arrest. Cowles was released two days later, he was never prosecuted and the case was closed.

Cowles does not appeal the district court's holding that the police officers were entitled to immunity from suit for seeking an increase in the amount of bail. Nor does he challenge the holding that Cowles pled no facts establishing any use of excessive force during the arrest. Cowles also does not appeal the dismissal of his pendent state claim for defamation. Additionally Cowles does not contest the dismissal of the City of Banning, William J. Perry or Mike Pagan as defendants in this action.

A conditional dismissal as to Investigator Thayer and Deputy District Attorney Brouillette was entered so that Cowles could appeal the grant of summary judgment. The only issues before this court are whether the district court erred in finding that there was probable cause for Cowles' arrest and whether the district court erred in determining that the officers, in arresting Cowles, were immune from suit because their actions were objectively reasonable and not violative of Cowles' constitutional rights. We affirm the district court's grant of summary judgment as to all defendants.

When reviewing a grant of summary judgment, this court must review the evidence in the light most favorable to Cowles, the nonmoving party. White By White v. Pierce County, 797 F.2d 812, 814 (9th Cir. 1986). If there are disputed genuine issues of material fact as to the police officers' liability under 42 U.S.C. § 1983, summary judgment cannot be granted. Hutchinson v. Grant, 796 F.2d 288, 290 (9th Cir. 1986). In this case Cowles never disputed appellees' facts and did not submit a statement of controverted facts as required by the local rules. Therefore in granting summary judgment, the district court relied on facts drawn from appellees' pleadings. See Memorandum Decision at 31, n. 1. We rely on the district court's statements of undisputed fact.

We review de novo the district court's determination that probable cause to arrest existed. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985). An arrest in which probable cause is lacking gives rise to an action for damages under Sec. 1983. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). "Probable cause is ordinarily a question for the jury, and denial of summary judgment is appropriate only if no reasonable jury could find that the officers had probable cause." White By White, 797 F.2d at 815.

For the purposes of this Sec. 1983 damages action, we need not determine whether probable cause to arrest actually existed. Cowles does not direct this court to any evidence that casts doubt on the district court's conclusion that the officers possessed "facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime." United States v. Fouche, 776 F.2d at 1403. Instead, Cowles attacks the officers' credibility on appeal. Cowles admits that the children, their mother, and Elizabeth Murphy, a child social worker trained in investigating sexual abuse, told the police the information upon which the police relied to formulate probable cause to arrest Cowles for sexual abuse.

Even if probable cause did not exist at the time of arrest, appellees are immune from suit if "officers of reasonable competence could disagree" whether the arrest was reasonable. Malley v. Briggs, 475 U.S. 335, 341 (1986). Because immunity from suit is established by an objective standard, the subjective belief of the officer is irrelevant. Hutchinson, 796 F.2d at 290. Even if mistaken, if the officers acted under an objectively reasonable belief that the arrest was lawfully supported by probable cause, they are entitled to qualified immunity. Tomer v. Gates, 811 F.2d 1240, 1242 (9th Cir. 1987).

The officers had sufficient evidence before them to believe that probable cause to arrest Cowles existed. The statements of and interviews with the children and the mother, the fact that Raechell, the youngest child, approached a child safety speaker with her story of abuse, the independent investigation by the social worker, the psychological and sexual histories of Cowles provided by his ex-wife and the initial determination by the district attorneys' office that probable cause to search existed (on the basis of the same statements) combine to provide strong evidence establishing probable cause before the arrest. Appellees also submitted an affidavit of Richard Tyler, an expert in child sexual abuse investigations, who concluded that probable cause to arrest existed after reviewing the evidence before the officers at the time of the arrest. Cowles makes no showing under Fed. R. Civ. P. 56(e)¹  that a reasonable officer could not have thought that probable cause existed in these circumstances.

Qualified immunity constitutes an immunity from suit which "is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Viewing the officers' actions from an objective standard, on the evidence before appellees at the time of arrest it was reasonable to conclude that probable cause existed. The officers are immune from suit for damages caused by their reasonable discretionary actions taken to safeguard the children.

Appellant also claims the police failed to demonstrate exigent circumstances to justify his warrantless arrest. He cites no authority for his assertion that a warrant was required in the circumstances of this case. While a warrant would be required were appellant arrested in his home, see Payton v. New York, 445 U.S. 573 (1980), United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1986), police may make a warrantless arrest in a public place upon probable cause to believe a felony has been committed. United States v. Watson, 423 U.S. 411, 423 (1976). Payton and Al-Azzawy rest on the traditional privacy afforded the privacy of a home. That rationale does not extend to an arrest in the reception area of appellant's business office. Moreover, were it necessary to show exigency, the district court's finding the children were at risk is amply supported by the record.

The decision of the district court is therefore AFFIRMED.