Domestic standby turned into nonconsensual entry and arrest for obstruction; qualified immunity denied

Plaintiff who was charged with obstruction after a domestic stand-by turned into the police deciding to enter the home. The charge lacked probable cause, and the police were denied summary judgment on the merits and qualified immunity. Court acknowledges circuit’s move to “arguable probable cause” and SCOTUS criticism for viewing qualified immunity too narrowly. Weissinger v. Murray, 2007 U.S. Dist. LEXIS 47075 (N.D. Ga. June 27, 2007):

Ms. Weissinger was arrested for theft by conversion, but ultimately charged with obstruction. According to her testimony, there was probable cause for neither charge. As noted above, Officer Murray was informed by Jeremy that Weissinger had already made plans with Jeremy’s wife to transfer the shirts. Thus, there was no basis for assuming that Weissinger intended to convert the shirts for her own use. Indeed, according to Murray, the reason he let Jeremy onto the property is because Weissinger had already agreed to transfer the shirts to Jeremy’s wife. The officers were only dispatched as a “domestic standby.” They were not investigating a crime, and had no reason to believe that Weissinger was acting illegally. Once Weissinger asked the officers to leave they were no longer acting as a domestic standby. “[T]hey were instead merely attempting forcibly to resolve a civil dispute.” Thornton v. City of Macon, 132 F.3d 1395, 1399 (11th Cir. 1998). The fact that Weissinger could have changed her mind and decided to keep the shirts would not even be arguable probable cause. See, e.g., Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995) (noting that the mere fact that an item “could have been used for unlawful activity . . . is not enough to establish even arguable probable cause”). Indeed, the flimsy basis for the charge is why the Defendants were forced to charge her with “obstruction.”

The officers lacked probable cause to make the arrest for “obstruction.” … A reasonable jury could find that the arrest was unreasonable and violated the Fourth Amendment. Tuggle and Murray may nevertheless be shielded from liability for civil damages if they did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Hope, 536 U.S. at 739. …

“This circuit was recently chastised by the Supreme Court for taking an unwarrantedly narrow view of the circumstances in which public officials can be held responsible for their constitutional violations.” Id. It is clearly established that an arrest made without probable cause violates the Fourth Amendment. See Thornton, 132 F.3d at 1399. But an officer is entitled to qualified immunity where the officer had “arguable probable cause.” Id. Arguable probable cause exists where reasonable officers in the same situation as the defendant, knowing what he knows, could have believed that probable cause existed. The facts underlying the Plaintiffs’ claims and the Defendants’ defense of qualified immunity must be determined by the trier of fact.