1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10458

Summary Calendar

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JAMES G. GIBSON,

Plaintiff-Appellee,

versus

OFFICER P.A. RICH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

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(January 26, 1995)

Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant appeals the federal district court's order denying

its summary judgment based on qualified immunity. For the reasons

stated below, this Court will reverse the denial of qu alified

immunity and remand the case to the federal district court for

further proceedings.

I. Facts and Procedural History

On Friday, July 5, 1991, James Gregory Gibson ("Gibson") and

his wife, Sandra, went to a Dallas billiards bar. While at the1 Neither Gibson nor Sa ndra could recall exactly how many

glasses of beer each individually consumed from the pitcher. In

addition to the pitcher at the billiards bar, Gibson stated that he

could not recall whether he had any alcoholic beverages earlier in

the evening at dinner.

2 The facts are in dispute as to precisely why Sandra called

the police for help.

2 bar, Gibson and Sandra shared a pitcher of beer and played pool. 1

Before leaving the bar, the couple began arguing. The argument

continued in the car when the couple left to return home. Sandra

became so irritated by the argument that she stopped the car,

exited, and began to walk home on a major interstate. Gibson drove

the car home without Sandra.

While walking h ome Sandra became distressed and called the

Garland police department to request help. 2 The police dispatched

Officer P.A. Rich ("Officer Rich") to the scene to assist Sandra.

When Officer Rich arrived at Sandra's location and heard her story,

he decided to escort her home.

When Officer Rich and Sandra arrived at the apartments where

the Gibsons lived, Officer Rich saw Gibson sitting in the driver's

seat of his parked car with the door open and one leg extended out

of the car. Gibson had in his possession an anti-theft device

known as "the Club," which a car owner uses to lock a car's

steering column in place. Upon identifying Gibson as Sandra's

husband, Officer Rich instructed Sandra to remain in the patrol car

while he spoke with Gibson.

Officer Rich then approached Gibson and identified hims elf.3 In addition to the other alcohol, after Gibson arrived home

he immediately opened another beer, took a drink, and then returned

to his car in the parking lot for the apparent purpose of securing

his car with "the Club."

4 While Gibson does not dispute that he had the pitcher of beer

nor that he smelled of alcohol, he does dispute that he had blood

shot eyes and slurred speech. Even assuming in Gibson's favor,

which we must do si nce he is the non-movant in this summary

judgment proceeding, th e totality of the circumstances still

provided Officer Rich with an objectively reasonable basis to

arrest Gibson for public intoxication.

5 Assisting Officer Rich that night was the security guard of

the apartment complex, who happen ed to be an off-duty police

officer himself. The other officer swore in his summary judgment

affidavit that Gibson appeared to be intoxicated on the evening in

question.

3 Off icer Rich smelled alcohol on the breath of Gibson. 3 Officer

Rich also stated that Gibson had blood shot eyes and was slurring

his speech. 4 Additionally, after Officer Rich asked Gibson a few

questions, Gibson called Officer Rich "a fucking asshole." Based

on all these circumstances and his experience as a police officer,

Officer Rich formed the opinion tha t Gibson was intoxicated. 5

Officer Rich also formed the opinion that Gibson was or could be a

danger to himself or others. Therefore, Officer Rich arrested

Gibson for public intoxication.

As Officer Rich was trying to get Gibson into the police car,

Sandra began objecting and otherwise interfering with the arrest.

At this time, Officer Rich also arrested Sandra for public

intoxication and then proceeded to the police station for

"booking." After Officer Rich and the Gibsons arrived at the

police station, the Gibsons began arguing again. The argument

culminated in Gibson kicking Sandra in the face.6 Officer Rich also raises issues in his brief other than that

of qualified immunity. However, these other issues cannot be

considered by the Court at this time since an interlocutory appeal

under 28 U.S.C. § 1291 is limited to the issue of qualified

immunity. See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985).

4 Gibson was formally charged with assault for kicking his wife.

The charge was later changed to retaliat ion; however, the grand

jury no-billed Gibson on the retaliation charge. No charge of

public intoxication was pursued by the district attorney. Gibson

sued Offi cer Rich for false imprisonment, malicious prosecution,

and violation of his civil rights under section 1983. Officer Rich

filed a motion for summary judgment asserting qualified immunity.

The district court denied the motion and Officer Rich now appeals

that denial. 6

II. Discussion

This Court reviews the denial of a summary judgment de novo,

using the same criteria used by the district court. F raire v. City

of Arlington

, 957 F.2d 1268, 1273 (5th Cir.), cert. denied

, 113 S.

Ct. 462 (1992). The Court reviews the "evidence and inferences to

be drawn therefrom in the light most favorable to the non-moving

party." I d. Summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions o n file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." F E D

. R. C IV

. P. 56(c). When a

proper mo tion for summary judgment is made, the non-moving party

must set forth specific facts showing that there is a genuine issue

for trial. F E D

. R. C IV

. P. 56(e); see Anderson v. Liberty Lobby,5

Inc. , 477 U.S. 242, 250 (1986). The mere allegation of a factual

dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment. Fraire , 957 F.2d at 1273.

A dispute about a material fact is genuine if the evidence is such

that a reasonable jury could return a verdict for the non-moving

party. S ee Anderson

, 477 U.S. at 248. Material facts are facts

that might affect the outcome of the suit under the governing law.

Id.

Qualified immunity shields government officials performing

discretionary functions from liability unless their conduct

violates clearly established statutory or constitutional rights of

which a reasonable person would have known. B abb v. Dorman

, 33

F.3d 472, 477 (5th Cir. 1994). The protection afforded by the

defense is an "immunity from suit, not simply immunity from

liability." I d. (quoting Geter v. Fortenberry

, 849 F.2d 1550, 1552

(5th Cir. 1988)). Consequently, the immunity issue must be

resolved at the earliest possible stage of the litigation since it

entails an entitlement to immunity from suit and not merely a

d efense to liability. S ee Hunter v. Bryant

, 112 S. Ct. 534, 536

(1991).

I n suits alleging illegal arrest, the qualified immunity

deter mination turns on whether a reasonable officer could have

believed the arrest to be lawful, in light of clearly established

law and the information the officer possessed. B abb

, 33 F.3d at

477. Even law enforcement officials who reasonably, but

mistakenly, conclude that probable cause is present are entitled to6

immunity. Anderson v. Creighton , 483 U.S. 635, 641 (1987); Babb

,

33 F.3d at 477. The qualified immunity defense "'gives ample room

for mistaken judgment s' by protecting 'all but the plainly

incompetent or those who knowingly violate the law.'" H unter v.

Bryant , 112 S. Ct. 534, 537 (1991) (quoting Malley v. Briggs , 475

U.S. 335, 341 (1986)). Thus, if officers of reasonable competence

could disagree on whether or not there was probable cause to arrest

a defendant, immunity should be recognized. B abb

, 33 F.3d at 477.

Given th e smell of alcohol, Officer Rich's knowledge that

G ibson had shared a pitcher of beer with Sandra, Gi bson's

belligerence, and the cumulative circumstances of the night in

question, Officer Rich acted as a reasonable officer c ould have

acted in arresting Gibson for public intoxication. This Court is

not willing to second guess the officer on the beat who must act on

the spur of the moment if that officer's action can be classified

as "arguably reasonable." Certainly the smell of alcohol on

Gibson's breath, the officer 's knowledge of Gibson's drinking a

pitcher of beer with his wife , and Gibson's belligerent attitude

made it "arguably reasonable" for Officer Rich to believe that

Gibson was intoxicated that night. The fact that Gibson was in the

driver's seat of his car renders Officer Rich's decision that he

presented a potenti al danger to the public reasonable since

intoxicated drivers are a grave threat to the public.

Additionally, the ongoing arguments throughout the ni ght between

Gibson an d his wife could have led Officer Rich to believe that

there was a possibility of Gibson becoming a danger to his wife.7 The district court erred in believing that there were

disputed facts which prevented the qualified immunity summary judgment from being granted. The district court held that Gibson's

allegation that he was not drunk put the issue of intoxication in

dispute. However, the district court errs in dwelling on the issue

of whether or not Gibson actually was drunk instead of on the issue

of whether Rich was reasonable in believing Gibson was intoxicated.

Despite Gibson's allega tion otherwise, all f acts in evidence

indicate that Rich was justified in b elieving that Gibson was

intoxicated. The other facts with which the district court

expressed concern were not material or necessary to the case and

therefore did not preclude summary judgment. For example, the

precise reason that Sandra exited the car on the way home from the

billiards bar is not material to whether Gibson was intoxicated or

dangerous to the public. Such immaterial disputes should not

result in a summary judgment denial.

8 Gibson claims that in addition to the public intoxication

charge, assault and retaliation w ere also wrongfully charged

against him by Rich. However, the assault charge developed after

the public intoxication arrest and given Gibson's admission that he

kicked his wife, it would certainly appear that this charge was

reasonably made. This retaliation charge could really only even

support the malicious prosecution claim since the false arrest and

§ 1983 claims require that the arrest itself be wrongful. Officer

Rich's involvement with the retaliation charge is unapparent from

the record; however, the degree of involvement should be resolved

in further district court proceedings.

7 Such circumstances present the precise type of scenario in which a

police officer needs discretion to act. 7 Because Officer Rich was

exercising rea sonable discretion based on his perception of the

circumstances on the scene, we find that he was entitled to

qualified immunity on the false arrest, malicious prosecution, and

section 1983 claims to the extent they were grounded on a wrongful

arrest. 8 Given the discretionary nature of Officer Rich's

decision, the qualified immunity should extend to the state claims

stemming from the arrest as well.

III. Conclusion

Officer Rich acted within the bounds of reason in arresting8

Gibson for public intoxication given the cumulative circumstances

surrounding the arrest. Therefore, the judgment of the federal

district court denying Officer Rich's motion for summary judgment

is reversed, and the case is remanded to that court.

REVERSED AND REMANDED.