John R. Gilker v. Duane Baker, Robert Doom and Albert Marinello

Plaintiff appeals the dismissal of his 42 U.S.C. § 1983 damages-action at the close of the plaintiff’s evidence.

We must decide whether Gilker’s evidence raised a jury issue, and, if so, what defenses may be asserted.

Gilker claimed that defendant police officers acting under color of law denied him his constitutional rights by illegally arresting him. To prevail, such a plaintiff must show that the arrest was without warrant or other justification.

Evidence that there was probable cause to make the arrest can come from the plaintiff’s own witnesses. Such evidence may be so great as to permit a dismissal at the end of the plaintiff’s case. Bergstralh v. Lowe, 504 F.2d 1276, 1279-80 (9th Cir. 1974) (concurring opinion), cert. denied, 420 U.S. 930 , 95 S.Ct. 1131 , 43 L.Ed.2d 402 (1975). But, in the usual case, the plaintiff meets his initial burden by proving a prima facie case. Once a warrantless arrest is established, the burden of going forward with the evidence passes to the defendant. The plaintiff retains the risk of nonpersuasion on the issue of illegal arrest. Martin v. Duffie, 463 F.2d 464, 468-69 (10th Cir. 1972). Within the foregoing framework, the ultimate issue is…