MCCOMAS v. BRICKLEY (March 13, 2012)

It was New Year’s Eve 2007 and Shannon McComas, an Indianapolis police officer, was attending a party at Durty Nelly’s Pub & Eatery. A fight broke out around 3:00 a.m. When the dust cleared, several persons were wounded and a security guard was killed. Detective Edward Brickley was one of the responding detectives. He interviewed several witnesses, recovered a gun, and viewed the bar’s surveillance video before he spoke with McComas. McComas made several statements that were inconsistent with the surveillance video and information that Brickley had obtained from other witnesses. When Brickley told McComas that he had seen the video and that McComas’ statement was inconsistent with it, McComas changed his story. Shortly thereafter, the police arrested McComas and charged him with murder and assisting a criminal. Charges of providing false information were later added. Eventually, the state dropped all charges. McComas brought an action against Brickley for false arrest pursuant to § 1983. Judge Barker (S.D. Ind.) denied Brickley’s motion for summary judgment on qualified immunity grounds. Brickley appeals.

In their opinion, Seventh Circuit Judges Bauer, Posner, and Wood reversed and remanded. The Court first addressed its jurisdiction since summary judgment denials are generally not appealable. One exception to that general rule allows appellate jurisdiction of a denial of qualified immunity—but only to the extent it involves issues of law. The Court noted that there were many factual disputes in the case but none of them were relevant to the qualified immunity question. The test for qualified immunity is whether the allegations amount to a constitutional violation when viewed in the light most favorable to plaintiff and whether the right at issue was clearly established at the time of the alleged violation. Here, the Court only addressed the “clearly established” prong. When looking at an allegation of wrongful arrest, the question is whether the officer had “arguable probable cause.” The Court found an absence of probable cause for the murder charge. However, since Brickley is entitled to qualified immunity if he had arguable probable cause for either charge, the Court turned to the assisting a criminal charge. Under Indiana law, one is guilty of assisting a criminal if one “harbors, conceals, or otherwise assists” another person. Given the evidence on the surveillance tapes and McComas’ original lies about his involvement in the fracas, the Court concluded that Brickley had arguable probable cause for the assisting a criminal charge. The Court added that Brickley had probable cause to arrest McComas with the false informing charge, even though that charge was not brought until later. An arrest is reasonable if there is probable cause to believe any crime has been or is being committed, even if it is not included in the original charge. In Indiana, one commits the crime of false informing if he gives false information in the investigation of a crime. Clearly, McComas had probable cause to believe that Brickley had done that.