Branch v. Gorman et al

Filing 59

ORDER denying 40 Motion for Partial Summary Judgment; granting in part 45 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 09/27/12. (Attachments: # 1 Placeholder for Video) (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Mary D. Branch,
Plaintiff,
v.

Civ. No. 11-2155 (RHK/JJG)
MEMORANDUM OPINION
AND ORDER

Officer Timothy Gorman, et al.,
Defendants.

A.L. Brown, Capitol City Law Group, LLC, St. Paul, Minnesota, Joshua R. Williams,
Law Office of Joshua R. Williams, PLLC, Minneapolis, Minnesota, for Plaintiff.
Timothy S. Skarda, Minneapolis City Attorney’s Office, Minneapolis, Minnesota, for
Defendants.

INTRODUCTION
This case arises out of Plaintiff Mary Branch’s arrest by Minneapolis police
officers on September 3, 2007, for violating Minnesota’s “open-container” law. Branch
alleges that the officers – Defendants Timothy Gorman and Christopher Garbisch –
lacked probable cause to arrest her and, hence, violated her Fourth Amendment (and
state-law) rights; she also asserts related claims against the City of Minneapolis (the
“City”). Defendants now move for summary judgment on all of Branch’s claims, and
Branch cross-moves for partial summary judgment as to liability. For the reasons that
follow, Defendants’ Motion will be granted in part and Branch’s Motion will be denied.

BACKGROUND
On September 3, 2007, at approximately 12:30 a.m., Branch was a passenger in a
car driven by her husband, David Johnson, in Minneapolis. (Branch Dep. at 16-19.)
Garbisch, who was patrolling in the area, checked the vehicle’s license plate and
discovered that Johnson had an outstanding warrant. (Garbisch Dep. at 25; Skarda Aff.
(Doc. No. 16) Ex. 1 at 2.) He pulled the vehicle over as other officers (including
Gorman) arrived to assist. (Garbisch Dep. at 15; Dashcam Video.) 1 After confirming
Johnson’s identity, Garbisch arrested him on the outstanding warrant and placed him in
the back of his squad car. (Garbisch Dep. at 27; Branch Dep. at 20-22; Dashcam Video.)
It is not entirely clear what happened next. The Dashcam Video shows that two
officers approached the car, one on either side. According to Branch, the officer on the
driver’s side was Gorman, who allegedly told her through the rolled-down window,
“Nigger, your black ass is going to jail.” (Branch Dep. at 21; Branch Decl. (Doc. No. 53)
¶ 2.) On the Dashcam Video, however, it does not appear the driver-side officer was
speaking to Branch. 2 Nor does the video reveal that officers took any action to place her
under arrest at that time.
In any event, a few seconds later Branch opened her door; on the Dashcam Video,
the officer on the passenger side of the vehicle then appears to give her some instructions.
1

In his deposition, Garbisch was questioned about a video of the incident captured by his squad
car’s dashboard camera. (See Garbisch Dep. at 24-54.) At the Court’s request, the City has
submitted a copy of that video, which is attached to this Order. When questioned at oral
argument, neither party objected to the Court’s consideration of the video.
2

While Gorman’s deposition transcript has not been proffered, it is clear that he denies this
statement. (See Branch Decl. (Doc. No. 13) Ex. A at 3; see also Answer ¶ 14.)
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Branch claims this officer was Gorman and that he told her to exit the vehicle. (Branch
Dep. at 22.) But she also testified that Gorman was on the driver’s side of the car, and it
is clear from the Dashcam Video that a different officer was speaking to her from the
passenger side. Regardless, “thinking [she] was going to be released and go home,”
Branch exited the car, closed the door, walked around the vehicle, and got into the
driver’s seat. (Branch Dep. at 22; Dashcam Video.) Several officers then approached
and removed her from the car, sitting her down on the curb. (Branch Dep. at 22;
Dashcam Video.)
At about the time Branch was removed from the car, an unknown officer opened
the passenger-side door and retrieved a small metal flask from inside the vehicle.
(Dashcam Video; Garbisch Dep. at 35.) The record is unclear (1) which officer first
spotted the flask and (2) precisely where it was located. (See Garbisch Dep. at 37-38.)
Yet, it is undisputed that the flask was either completely under the passenger seat where
Branch had been sitting (id. at 17, 21, 37-38; Branch Decl. (Doc. No. 13) Ex. A at 3;
Skarda Aff. (Doc. No. 16) Ex. 1), partially under that seat with its end exposed (Garbisch
Dep. at 40-41), or on the floor in front of the passenger seat, near where Branch’s feet
had been located (id. at 48-49). Branch denies knowing that the flask was in the car or
drinking on the night in question. (Branch Dep. at 32.) 3 She did, however, ask the
officers “three [or] four” times if she could use the bathroom while sitting on the curb;
they refused. (Id. at 28-29.)

3

Garbisch testified in his deposition that he did not ask Branch whether she had been drinking
and could not recall any officer asking if the flask was hers. (Garbisch Dep. at 22.)
-3-

The record also is unclear what happened once the flask was removed from the
car. According to Branch, the officers opened the flask, shook it, and proclaimed it
empty. (Id. at 30-31.) Garbisch testified that he opened the flask’s cap but could not see
through its narrow opening. (Garbisch Dep. at 22.) He detected a strong odor of alcohol,
however, suggesting to him that at least some amount of alcohol was in the flask. (Id. at
22-23.) The Dashcam Video does not show any of this, although at times the flask is out
of view or blocked from the camera.
Ultimately, Garbisch arrested Branch for violating Minnesota’s open-container
law, Minn. Stat. § 169A.35, subd. 3, making it unlawful “for a person to have in
possession, while in a private motor vehicle . . . any bottle or receptacle containing an
alcoholic beverage . . . that has been opened.” (Id. at 47.) She was transported to the
Hennepin County jail, booked, and released; the charge against her was later dropped.
(Doc. No. 16, Ex. 3.)
On September 11, 2007, Branch filed a Charge of Discrimination with the
Minneapolis Department of Civil Rights, asserting that there existed no basis for her
arrest because the flask was (i) not in her possession and (ii) empty on the night in
question. She contended instead that she had been arrested on account of her race. In its
October 16, 2007 response to the Charge, the police department denied any civil-rights
violation. It asserted that there was a valid basis for Branch’s arrest because although
“[t]he flask appeared to contain no liquid,” it “had a strong odor of alcohol.” (Doc. No.
13, Ex. A.) The Department of Civil Rights dismissed the Charge on December 22,
2010. (Doc. No. 18, Ex. C.)
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Branch commenced the instant action on July 29, 2011, against Garbisch and
Gorman, in their individual and official capacities, and the City. Her Complaint asserts
four claims: (1) unreasonable seizure under the Fourth Amendment to the United States
Constitution (Count I); (2) false arrest and false imprisonment under Minnesota law
(Count II); (3) civil conspiracy to deprive her of her civil rights (Count III); and
(4) violation of the Minnesota Human Rights Act (“MHRA”), Minn. Stat. § 363A.01 et
seq., by discriminating against her “based on her race and disability in the area of public
services” (Count IV). The Complaint does not clearly specify which Defendants are
implicated in which Counts.
On October 17, 2011, Branch moved for partial summary judgment as to liability
on Counts I and II, arguing that “the undisputed facts demonstrate that Gorman and
Garbisch violated her Fourth Amendment rights and falsely imprisoned her by arresting
her absent probable cause.” (Doc. No. 12 at 1.) The Court denied the Motion, noting that
it was unclear what the officers knew at the time Branch was arrested. See Branch v.
Gorman, Civ. No. 11-2155, 2011 WL 6740286, at *3 (D. Minn. Dec. 21, 2011).
With discovery now complete, Branch has renewed her Motion for summary
judgment as to Defendants’ liability. Defendants, in turn, have cross-moved for summary
judgment on all of Branch’s claims. In response to that Motion, Branch has conceded the
dismissal of her “Monell claim, 4 official capacity claims, the civil conspiracy claims, and
the [MHRA] claims based on disability.” (Pl. Mem. in Opp’n at 2 n.1.) She has also

4

Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978). Despite Branch’s “concession,”
no Monell claim was pleaded in the Complaint.
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conceded dismissal of her race-based MHRA claim (Count IV) to the extent it is asserted
against Garbisch, and Counts I and II insofar as they are asserted against Gorman. (Id.)
What appear to remain for resolution, therefore, are the following claims: Count I
(Fourth Amendment) and Count II (false arrest/imprisonment) against Garbisch in his
individual capacity; and Count IV (race-based MHRA violation) against Gorman. At this
juncture, Branch does not press any claims against the City. 5
The parties’ Motions have been fully briefed, and the Court held a hearing on the
Motions on September 19, 2012. They are now ripe for disposition.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Id. at 322; Whisenhunt v. Sw. Bell Tel., 573
F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that
may be reasonably drawn from it, in the light most favorable to the nonmoving party.
Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009); Carraher v.
Target Corp., 503 F.3d 714, 716 (8th Cir. 2007). The nonmoving party may not rest on
mere allegations or denials, but must show through the presentation of admissible
evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty

5

Although this was not entirely clear from Branch’s submissions, her counsel confirmed at oral
argument that she no longer seeks relief from the City.
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Lobby, Inc., 477 U.S. 242, 256 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528
F.3d 1074, 1078-79 (8th Cir. 2008).
Where, as here, the Court confronts cross-motions for summary judgment, this
approach is only slightly modified. When considering Branch’s Motion, the Court views
the record in the light most favorable to Defendants, and when considering Defendants’
Motion, the Court views the record in the light most favorable to Branch. “Either way,
summary judgment is proper if the record demonstrates that there is no genuine issue as
to any material fact.” Seaworth v. Messerli, Civ. No. 09-3437, 2010 WL 3613821, at *3
(D. Minn. Sept. 7, 2010) (Kyle, J.), aff’d, No. 10-3532, 2011 WL 873121 (8th Cir. Mar.
15, 2011).
ANALYSIS
The Court’s analysis begins (and ends) with the lone federal claim remaining in
this case: Garbisch’s alleged violation of Branch’s Fourth Amendment rights when he
arrested her without probable cause. Garbisch argues that he is entitled to qualified
immunity on this claim. For the reasons that follow, the Court agrees.
I.

General principles
Qualified immunity insulates government officials from suit when “their conduct

does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation omitted). In analyzing whether an official is entitled to qualified immunity, the
Court must answer two questions: Do the facts show that the challenged conduct violated
a constitutional right? And if a violation could be established on those facts, was the
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right clearly established on the date in question? E.g., Avalos v. City of Glenwood, 382
F.3d 792, 798 (8th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The
Court is “permitted to exercise [its] sound discretion in deciding which of the[se] two
[questions] should be addressed first in light of the circumstances in the particular case at
hand.” Pearson, 555 U.S. at 236.
Qualified immunity is a powerful defense for police officers because it insulates
them from mistaken judgments, as long as those mistakes were objectively reasonable.
E.g., Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). Officers “are not
liable for bad guesses in gray areas; they are liable for transgressing bright lines.”
Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012) (citation omitted). Were it
otherwise, government officials would be impeded in performing their duties because
they would tend to “always err on the side of caution.” Habiger v. City of Fargo, 80 F.3d
289, 295-96 (8th Cir. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per
curiam)). Hence, “all but the plainly incompetent or those who knowingly violate the
law” are protected by qualified immunity. Luckert, 684 F.3d at 817.
II.

Qualified immunity applied
The constitutional right at issue here is the Fourth Amendment’s prohibition on

unreasonable seizures. “It is well established that a warrantless arrest without probable
cause violates an individual’s constitutional rights under the Fourth . . . Amendment[].”
Walker, 414 F.3d at 992 (citation omitted). In opposing Defendants’ Motion, and in
seeking summary judgment herself, Branch argues that Garbisch violated this right when
he arrested her for an open-container violation without probable cause. In particular, she
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contends that Garbisch had no basis to conclude that she possessed the flask or that it
contained any alcohol, two essential elements of the crime. (See Pl. Mem. at 3-5; Pl.
Mem. in Opp’n at 2.)
But because qualified immunity allows for reasonable mistakes, “the governing
standard for a Fourth Amendment unlawful arrest claim ‘is not probable cause in fact but
arguable probable cause . . . that is, whether the officer should have known that the arrest
violated plaintiff’s clearly established right[s].’” Walker, 414 F.3d at 992 (emphasis
added) (citation omitted); accord, e.g., Keil v. Triveline, 661 F.3d 981, 985 (8th Cir.
2011). Arguable probable cause exists when “a reasonable officer could have believed
[the arrest] to be lawful, in light of . . . the information [he] possessed.” Sang v. City of
St. Paul, Civ. No. 09-455, 2010 WL 2346600, at *3 (D. Minn. June 8, 2010) (Kyle, J.)
(citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)); accord, e.g., Smithson v.
Aldrich, 235 F.3d 1058, 1064 (8th Cir. 2000). On the record before it, the Court
concludes that Garbisch had at least arguable probable cause to arrest Branch for an
open-container violation, as the facts known by him were sufficient to permit a
reasonable officer to conclude that she possessed a flask containing alcohol. 6

6

The Court notes that “[a]rguable probable cause does not require an arresting officer to prove
every element of a crime or to obtain a confession before making an arrest,” as this would
“negate the concept of probable cause and transform arresting officers into prosecutors.”
Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001) (per curiam) (emphasis added).
Hence, it was unnecessary for Garbisch to have sufficient evidence to prove each element of an
open-container violation in order to arrest Branch. Nevertheless, the Court finds sufficient
evidence in the record for a reasonable police officer to have concluded that the elements of the
crime charged – possession and alcohol in the flask – were met.
-9-

A.

Possession

At the time of Branch’s arrest, Garbisch knew that she had been sitting in the
passenger seat of Johnson’s car in the immediate vicinity of the area where the flask was
located. Notably, the flask was not stored in the glove compartment or tucked away in
the rear passenger area or trunk; it was within Branch’s reach and easily accessible to her,
although it is unclear whether it was partially (or completely) hidden from view.
Numerous Minnesota cases have held that such facts are sufficient to demonstrate
constructive possession of contraband. See, e.g., State v. Olson, 326 N.W.2d 661, 663
(Minn. 1982) (evidence supported conviction of car driver for unlawful possession of
firearm where search uncovered gun wedged between driver’s seat and backrest); State v.
Rockett, No. A07-2318, 2009 WL 910698, at *3 (Minn. Ct. App. Apr. 7, 2009) (no error
in concluding rear-seat passenger with access to trunk via passway through back seat
constructively possessed gun found in trunk); State v. Wilson, No. C9-99-1306, 2000 WL
719493, at *1 (Minn. Ct. App. June 6, 2000) (jury could reasonably infer defendant
possessed gun in light of police officer’s testimony that he observed defendant “sitting
directly on the gun as [he] shifted in his seat to reach for his driver’s license”). Indeed,
cases repeatedly note that “[p]roximity is important when evaluating constructive
possession.” Rockett, 2009 WL 910698, at *3; accord, e.g., State v. Cusick, 387 N.W.2d
179, 181 (Minn. 1986); Reese v. State, No. C7-98-788, 1998 WL 846530, at *3 (Minn.
Ct. App. Dec. 8, 1998) (“Courts have found possession when drugs or firearms were
found ‘in close proximity’ to the defendant.”) (citations omitted); see also Maryland v.

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Pringle, 540 U.S. 366, 374 (2003) (finding probable cause that front-seat passenger
possessed cocaine found hidden behind back-seat armrest).
To be sure, “[t]he line between knowing possession and guilt by association can be
very thin,” United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1978), and hence
courts have recognized that “mere proximity” to contraband, without more, is insufficient
to establish possession. E.g., United States v. Timlick, 481 F.3d 1080, 1083 (8th Cir.
2007); United States v. Bradley, 473 F.3d 866, 867 (8th Cir. 2007). Indeed, Branch relies
upon two Minnesota cases standing for this proposition: State v. Florine, 226 N.W.2d
609 (Minn. 1975) (per curiam), and State v. Porter, 674 N.W.2d 424 (Minn. Ct. App.
2004). (See Pl. Mem. at 3-4.)
But unlike the instant action, Florine, Porter, and the other cases cited above were
criminal cases in which the government was required to prove guilt beyond a reasonable
doubt. Here, by contrast, the governing legal standard is far lower – Garbisch was
required only to have arguable probable cause, that is, an objectively reasonable basis to
conclude (among other things) that Branch possessed the flask. This Court cannot say
that a police officer acts unreasonably in concluding that a passenger constructively
possesses contraband found in her immediate vicinity in a vehicle. See, e.g., Jack v.
Hansell, No. 6:08-cv-2069, 2010 WL 3517040, at *7 (M.D. Fla. Sept. 7, 2010) (officers
had arguable probable cause to arrest plaintiff for possessing drugs found between right
rear passenger seat and vehicle side panel when plaintiff was lone occupant of back seat);
King v. Newell, No. 7:06-CV-57, 2007 WL 2705553, at *3 (M.D. Ga. Aug. 15, 2007)
(Report & Recommendation of Hodge, M.J.) (arguable probable cause existed because
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drugs were in “close proximity to plaintiff” in vehicle), adopted in relevant part, 2007
WL 2705547 (M.D. Ga. Sept. 12, 2007).
In any event, as the Court previously noted when denying Branch’s first summaryjudgment Motion, there is more in the record here than Branch’s “mere proximity” to the
flask. She nowhere disputes that she repeatedly asked the officers to use the bathroom,
indicating that she had been drinking something before the car was stopped, and the flask
itself was either empty or contained (at most) a small amount of alcohol. Garbisch
stopped the car in darkness after midnight, a far more likely time for an individual to
consume alcohol in a vehicle (i.e., out of sight) than in broad daylight. Other officers
testified that Branch was acting belligerently toward them, which is a sign of possible
intoxication. 7 Considering the totality of the circumstances, the Court cannot say that
Garbisch acted unreasonably in concluding that Branch was more than merely “present in
the vehicle [and] physically proximate to” the flask. Branch, 2011 WL 6740286, at *3. 8

7

Branch asserts that Garbisch was unaware of her belligerence, as he testified in his deposition
that he could not hear the exchange between her and the other officers. (Pl. Reply at 3-4.) To be
sure, only facts known at the time of arrest are considered when evaluating probable cause. See,
e.g., Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010) (per curiam). But the
fact that Garbisch could not hear Branch does not mean he was unaware she was being
uncooperative. Indeed, he testified that he inferred from Branch’s and the officers’ “body
language” that “there obviously had to be something, some sort of disagreement or something”
between them. (Garbisch Dep. at 51-52.) The Dashcam Video, too, shows at least one officer
speaking to Branch in an animated fashion. And perhaps most notably, Branch has nowhere
disputed acting belligerently toward the officers, despite having the opportunity to do so in
several Declarations she has filed in this case.
8

In denying Branch’s initial summary-judgment Motion, the Court noted that certain documents
in the record suggest Garbisch detected an odor of alcohol on Branch before placing her under
arrest. In his deposition, however, Garbisch testified that he did not smell alcohol until after the
arrest. (Garbisch Dep. at 57.) Yet, the odor of alcohol is only one possible way to link the flask
to Branch; for the reasons just stated, other evidence in the record establishes that link.
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B.

Alcohol in the flask

Next, a reasonable police officer on the scene could have concluded there was
alcohol in the flask. Branch apparently believes there must have been alcohol in the flask
at the time of arrest in order for probable cause to exist under the open-container law.
Since the officers purportedly “knew” the flask was empty, she claims they necessarily
lacked probable cause to arrest her. This argument, however, misapprehends the law. 9
As long as an officer has an objectively reasonable basis to conclude that an
opened flask, bottle, or similar object contained alcohol at some point while in a moving
vehicle, probable cause would exist to arrest the person possessing it. An example makes
this clear. Assume that a police officer pulled over a vehicle in which he found six empty
beer cans at the driver’s feet, all of which felt cold to the touch. Assume further that the
driver had been weaving erratically, had slurred speech and watery eyes, manifested other
symptoms of intoxication, and smelled of beer, even though the officer did not actually
observe the driver consuming alcohol. In the Court’s view, despite the cans being empty,
the officer could reasonably conclude that they had contained alcohol – which had been
consumed by the driver – at some point while the vehicle was being driven.
This conclusion is not novel. Courts routinely find probable cause under opencontainer laws when police officers observe empty bottles in vehicles. One such case,
Guidry v. Boyd, No. 06 C 1600, 2007 WL 2317174 (N.D. Ill. July 17, 2007), is nearly on
9

In fairness, the Court previously echoed the same sentiment. See Branch, 2011 WL 6740286,
at *3 (“[I]f the flask had been empty when she was arrested and Defendants had been aware of
that fact, no reasonable officer could . . . have believed [the arrest] to be lawful.”) (internal
quotation marks and citation omitted). Upon further reflection and research, the Court now
concludes otherwise.
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all-fours with this case. There, upon approaching the plaintiff’s vehicle, two police
officers observed open beer bottles inside, which the plaintiff claimed were empty. The
plaintiff was arrested and charged with violating, inter alia, Illinois’s open-container law,
which is materially indistinct from Minnesota’s. The charges were eventually dropped,
and the plaintiff brought a Fourth Amendment claim against the officers. Guidry’s grant
of summary judgment to the officers is equally apt here:
[T]he threshold question in this case . . . is whether a reasonable officer
would have believed that Plaintiff had transported or possessed alcohol in
an open container so as to justify his arrest. The relevant Illinois statute
states that no driver or passenger “may transport, carry, possess or have any
alcoholic liquor within the passenger area of any motor vehicle upon a
highway in this State except in the original container and with the seal
unbroken.” Though the Illinois courts have not addressed the empty-bottle
question frequently, it is relatively clear that the presence of an empty
bottle of beer or liquor in the passenger area of a car is sufficient to create
probable cause for arrest under the statute. . . .
Plaintiff seemingly takes the position that, for purposes of summary
judgment, the Court should assume that the open beer bottles in the
passenger compartment were empty. The Court will do so, but it makes no
difference. Even assuming that a bottle was empty on the floor of the front
passenger compartment, its presence was sufficient to create probable cause
to arrest Plaintiff for violating the Illinois statute prohibiting “transportation
or possession of alcoholic liquor in a motor vehicle . . . except in the
original container and with the seal unbroken.” The presence of an open
empty alcohol container in the passenger area of a car would make a
reasonable police officer believe that a suspect had been transporting
alcohol in an open container.
Id. at *9-10 (emphases added) (citation omitted). Other decisions are in accord. See,
e.g., Thomas v. City of N.Y., No. 05 Civ. 6449, 2008 WL 3456173, at *3-4 (S.D.N.Y.
Aug. 12, 2008) (“[T]he factual dispute as to whether the container was empty is
immaterial in light of the [fact] that possession of an empty container may give rise to

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probable cause for an arrest.”); People v. Montanez, No. C053012, 2007 WL 2045582, at
*5 (Cal. Ct. App. July 18, 2007) (“Whether the bottle was empty is irrelevant.”); City of
Sparta v. Brooks, Nos. 93-1510-FT, 93-1511-FT, 1993 WL 381580, at *1 (Wis. Ct. App.
Sept. 30, 1993) (officer’s observation of two uncapped beer bottles through car window
“provide[d] reasonable grounds for an officer to believe that someone had been drinking
alcoholic beverages in the car,” even though he could not tell if bottles were empty);
People v. Gray, 420 N.E.2d 856, 859 (Ill. Ct. App. 1981).
Hence, even under Branch’s version of events, Garbisch had at least arguable
probable cause to arrest her. Assuming the flask was empty and assuming further
Garbisch knew that to be the case, a reasonable officer nevertheless could have concluded
that Branch “had just finished consuming” its contents, given the evidence recounted
above linking her to it (proximity, etc.). People v. Bothwell, 690 N.Y.S.2d 231, 234-35
(N.Y. App. Div. 1999); accord, e.g., United States v. Grote, 629 F. Supp. 2d 1201, 1205
(E.D. Wash. 2009) (“An opened bottle, in particular, is arguably evidence of recent
alcohol consumption.”).
For all of these reasons, the Court determines that Garbisch had at least arguable
probable cause to arrest Branch for an open-container violation. Accordingly, he is
entitled to qualified immunity on her Fourth Amendment claim (Count I), and that claim
will be dismissed.
III.

The remaining claims
Count I is the lone federal claim still standing in this case. The remaining claims –

Count II (false arrest/imprisonment against Garbisch) and Count IV (race-based MHRA
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violation against Gorman) – are state-law claims before the Court under the supplemental
jurisdiction statute, 28 U.S.C. § 1367. Yet, where all federal claims are dismissed prior
to trial, the balance of factors to be considered in deciding whether to exercise
supplemental jurisdiction typically militates against exercising such jurisdiction. E.g.,
Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004) (citing Carnegie–
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). That is the case here.
Accordingly, the Court declines to exercise supplemental jurisdiction over Branch’s
remaining claims, and they will be dismissed without prejudice.
CONCLUSION
“The Constitution does not guarantee that only the guilty will be arrested. If it did,
§ 1983 would provide a cause of action for every defendant acquitted – indeed, for every
suspect released.” Baker v. McCollan, 443 U.S. 137, 145 (1979). For the reasons stated
above, the Court concludes that Garbisch acted reasonably in arresting Branch, even if
she was not guilty of the crime for which she was arrested. Accordingly, she has failed to
establish a constitutional violation, and Garbisch is entitled to qualified immunity on her
Fourth Amendment claim.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED:
1.

Branch’s Motion for Partial Summary Judgment on the Issue of Liability

(Doc. No. 40) is DENIED;
2.

Defendants’ Motion for Summary Judgment (Doc. No. 45) is GRANTED

IN PART, and the following claims are DISMISSED WITH PREJUDICE: (a) Count I
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(Fourth Amendment violation), in its entirety; (b) Count II (false arrest/imprisonment), to
the extent it is alleged against Gorman; (c) Count III (civil conspiracy), in its entirety; and
(d) Count IV (MHRA violation), (i) to the extent it is based on disability discrimination
and (ii) insofar as it is alleged against Garbisch; and
3.

Branch’s remaining claims are DISMISSED WITHOUT PREJUDICE. 10

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: September 27, 2012

10

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

See 28 U.S.C. § 1367(d).
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