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Court finds probable cause, despite officer’s doubts

By Scott Lauck – Missouri Lawyers Weekly
August 26, 2015

A federal appeals court on Tuesday struck a serious blow to a Jefferson County man’s civil rights lawsuit against the local sheriff’s department.

Thomas Bowden alleged that his Fourth Amendment rights were violated in 2009, when he was arrested after firing a shotgun after observing two people fishing near his property in rural Jefferson County. Benjamin Simmons and Aaron Gyurica alleged that Bowden fired at them close enough to knock leaves off a nearby tree; Bowden said he fired away from them to get their attention. The parties then argued, during which Bowden was holding the shotgun.

After a deputy spoke to each party, Bowden was charged with unlawful use of a weapon. However, the investigating deputy, Vernon Martin, said he didn’t think a crime had been committed, despite having filled out a probable cause statement saying “I have probable cause to believe” that Bowden had committed a criminal offense. He alleged he’d been ordered by his superiors to seize the gun and file the statement. Bowden was acquitted of the weapons charge at a jury trial in Jefferson County Circuit Court in 2010.

In his civil rights suit, Bowden argued that Martin and several other Jefferson County officials had violated Bowden’s rights by causing him to be arrested without probable cause.  Last year, U.S. District Judge John Ross ruled the case could go forward because there was a factual dispute about the existence of probable cause for the arrest.

“An officer must have a reasonable belief that an offense is occurring,” Ross wrote.  “If Martin had no reasonable basis for believing that Plaintiff had committed a crime … then it was not objectively reasonable for him to use the information to obtain an arrest warrant.”

The 8th U.S. Circuit Court of Appeals, however, said Martin’s doubts about Simmons’ and Gyurica’s account didn’t mean there was no probable cause.  The men hadn’t seen Bowden fire the gun at them, but said they saw leaves fall from the tree above them right after the blast.  Bowden said he’d fired because the men did not identify themselves and he thought their behavior was suspicious.

“That Martin personally did not believe the men was not relevant to the existence of probable cause, so the omission of Martin’s subjective belief did not violate the Fourth Amendment,” Judge Steven M. Colloton wrote.  Judges Diana E. Murphy and Jane Kelly concurred.

The panel added that, no matter which way the gun was pointed, there still was reason to believe an offense had been committed.  Missouri state law defines unlawful use of a weapon as exhibiting, “in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.”

“There was probable cause to believe that Bowden knowingly ‘exhibited’ the shotgun in the presence of the fishermen when he fired it … that the exhibition was ‘angry or threatening’ even if the gun was not aimed at the fishermen … and that the weapon was ‘readily capable of lethal use’ even if it had not yet been so used,” Colloton wrote.

Bowden’s attorney, Matthew Casey of Casey & Devoti in St. Louis, said he was disappointed by the ruling.  He noted that it was rare for a law enforcement officer to admit he lacked probable cause.

“If this isn’t a violation of someone’s right, where the arresting officer plainly admits that he didn’t have a probable cause to arrest, then I don’t know what is a violation of civil rights,” Casey said.

Martin’s attorney, Tim Reichardt of Behr, McCarter & Potter, said that admission came in a deposition before the deputy was represented by counsel or was a party to any litigation.  Ultimately, the case didn’t hinge on what his client believed.

For purposes of the Fourth Amendment, “it’s an objective test.  Subjective beliefs are irrelevant,” Reichardt said.

Bill Hellmich of King, Krehbiel & Hellmich, who represented several Jefferson County officials named in Bowden’s suit, also said the 8th Circuit’s decision was correct.

“Basically, Deputy Martin was just mistaken in his belief that he didn’t have probably cause,” Hellmich said.  “He did in fact have probable cause.  He just didn’t realize it.”

Casey, however, said the appeals court glossed over alleged facts that would have bolstered Bowden’s claim.

According to Tuesday’s opinion, Martin interviewed Simmons and Gyurica at the residence of Simmons’ grandmother, Barbara Boyles, who allegedly said she would call an official in Jefferson County government to see what could be done about the situation.  That call supposedly set in motion a series of calls among high-ranking law enforcement officials, culminating in what Martin said was an order to file the probable cause statement.

“Essentially, the theory was that these people knew people in Jefferson County politics and called in a favor,” Casey said.

The identity of the official allegedly called was in some dispute.  Martin testified that he was told it was the circuit clerk, Howard Wagner.  Discovery, however, showed calls went from Simmons’ residence to the office of the county clerk, Wes Wagner, his son.  Wes Wagner was named as a defendant in the suit.

Hellmich denied those accusations, saying the chain of calls “never happened.”

Tuesday’s opinion disposes of the federal claims in the case.  The suit had also made state law claims; it was not clear if that portion of the suit would proceed.

The case is Bowden v. Martin, 14-3074.

 

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