Charles Bergstralh v. Gayle Lowe and City of Bend, Oregon

(dissenting) :

The key issue is whether the district court erred in ruling as a matter of law that Bergstralh had failed to make a prima facie showing that he had been illegally arrested. The district court took the probable cause issue from the jury on two grounds: (1) Under Oregon law, applicable to this civil rights action, Bergstralh’s conviction for resisting arrest created a presumption that the arrest was supported by probable cause, absent proof that the conviction was obtained by fraud, perjury, or other corrupt means, and (2) testimony of some of Bergstralh’s witnesses would have supported a finding of probable cause. Neither ground is sustainable.

As my brother Chambers recognizes, the Oregon presumption, if any there be, 1 cannot be applied to the federal right here asserted. He asserts, however, that the district court’s erroneous reliance on the presumption was harmless error because Bergstralh did not prove a prima facie case of illegal arrest under federal law standards. We cannot be sure that the district court would have taken the issue from the jury had it- been aware that the Oregon law was inapplicable — although the record strongly indicates that it would…

504 F.2d 1276 Charles BERGSTRALH, Plaintiff-Appellant, v. Gayle LOWE and City of Bend, Oregon, Defendants-Appellees. No. 72-2820. United States Court of Appeals, Ninth Circuit. Aug. 6, 1974 Certiorari Denied Feb. 18, 1975 See 95 S.Ct. 1131 . Richard Haeder, Portland Ore., for plaintiff-appellant. Thomas S. Moore, of Morrison, Bailey, Dunn, Cohen & Miller, Portland, Ore., for defendants-appellees. OPINION Before CHAMBERS, HUFSTEDLER and WALLACE, Circuit Judges. WALLACE, Circuit Judge. 1 Bergstralh seeks to recover damages under section 1983 of the Civil Rights Act, 42 U.S.C. 1983, resulting from his arrest on charges of disorderly conduct by Lowe, a policeman employed by the city of Bend, Oregon. Bergstralh summoned Lowe to remove two alleged trespassers from his appliance store parking lot. When Lowe convinced the young men to leave and refused to arrest them, Bergstralh threw some beer bottles and made threatening and abusive remarks to Lowe and the young men. Lowe arrested Bergstralh without a warrant and charged him with disorderly conduct. Bergstralh was subsequently acquitted on that charge by a municipal court, but convicted on a charge of resisting arrest. In the…

Before CHAMBERS, HUFSTEDLER and WALLACE, Circuit Judges.

Bergstralh seeks to recover damages under section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 , resulting from his arrest on charges of disorderly conduct by Lowe, a policeman employed by the city of Bend, Oregon. Bergstralh summoned Lowe to remove two alleged trespassers from his appliance store parking lot. When Lowe convinced the young men to leave and refused to arrest them, Bergstralh threw some beer bottles and made threatening and abusive remarks to Lowe and the young men. Lowe arrested Bergstralh without a warrant and charged him with disorderly conduct. Bergstralh was subsequently acquitted on that charge by a municipal court, but convicted on a charge of resisting arrest. In the district court, Bergstralh asserted that Lowe violated his Fourth and Fourteenth Amendment rights by using excessive force and illegally arresting him. The district court ruled at the conclusion of Bergstralh’s case-in-chief that, as a matter of law, the arrest was made with probable cause. The question of excessive force was submitted to the jury, which returned a verdict in favor of Lowe. Bergstralh now appeals, urging that…

(concurring) :

I concur in the result reached by Judge Wallace but for the following reasons.

The vindication of federal rights under 42 U.S.C. § 1983 is to be determined by federal law. 1 See Donovan v. Reinbold, 433 F.2d 738, 742 (9th Cir. 1970). Several arrest cases similar to this case have so held. Sullivan v. Murphy, 156 U.S.App.D.C. 28 , 478 F.2d 938, 972 (1973); Martin v. Duffie, 463 F.2d 464, 467 (10th Cir. 1972); Anderson v. Haas, 341 F.2d 497, 499 (3d Cir. 1965); see Mueller v. Powell, 203 F.2d 797, 800 (8th Cir. 1953). As stated by the Supreme Court in McNeese v. Board of Education, 373 U.S. 668, 674 , 83 S.Ct. 1433, 1437 , 10 L.Ed.2d 622 (1963):

But that general rule does not resolve this ease. A judgment of the district court which is correct must be upheld on appeal even if it was not decided on the best grounds. Brizendine v. Visador Co., 437 F.2d 822 , 829 (9th Cir. 1971); Tanimura v. United States, 195 F.2d 329, 330 (9th Cir. 1952). The application of federal law by the district court would have mandated the result which it reached using state law.

The dissenter characterizes the issues of good faith and probable cause as defenses for which the burden of…