Johnson v. City of St. Paul 634 F.2d 1146

PER CURIAM.

Appellant Robert Lee Johnson brought this action1 under 42 U.S.C. § 1983 (1976) to recover damages for an allegedly unconstitutional arrest and imprisonment. The federal district court of Minnesota granted summary judgment for the defendants, and Johnson appeals. We affirm.

This action arose out of events which began in a public park. Appellant was sitting with a woman when they were approached by two police officers, defendants Zaruba and Petersen. The officers asked for identification, and while appellant made loud protests, he did present an employment badge. The officers radioed headquarters for a routine warrant check. They were informed there was an outstanding warrant for Robert Lee Johnson. The officers then took appellant to the police department, where he was booked on the charge in the warrant.2 He was held for three or four hours until he posted bail. At a hearing on July 19, 1973, it was discovered that appellant was not the Robert Lee Johnson sought *1147in the warrant, and charges were dismissed.3

The district judge relied upon Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), as disposing of the present case. In Baker, the plaintiff was stopped by police when he ran a stoplight. A warrant check indicated an outstanding warrant, and the plaintiff was taken into custody in spite of his protests of mistaken identification. He was released a week later when the police discovered the mistake. He claimed that his detention was unconstitutional because the police failed to make prompt efforts to determine the validity of his mistaken identity claim. The Supreme Court held that once the police make an arrest pursuant to a valid warrant,4 the police have no constitutional duty to make an immediate investigation of claims of mistaken identity. 99 S.Ct. at 2695. While the plaintiff in such a case might have a state law claim for false imprisonment, he has no claim under 42 U.S.C. § 1983, which requires as a threshold a violation of constitutional rights. In the present case, Johnson was detained only a few hours and the mistake was discovered within a week. Like the plaintiff in Baker, he has alleged no violation of his constitutional rights.

Appellant also contends that he was wrongfully detained before the warrant check, and thus his subsequent arrest was tainted. However, he apparently responded voluntarily to the police officers’ request for identification. Although Johnson claimed that the police “insisted” he go over to the police car before they radioed headquarters, this allegation is insufficient to indicate detention. It is “[o]nly when [a police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen [that a court] may * * * conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16, 20 L.Ed.2d 889 (1968).5

Because appellant has alleged no facts demonstrating a constitutional violation, we affirm the judgment of the district court dismissing his claim.

McMILLIAN, Circuit Judge,

dissenting in part.

I concur in the affirmance of the district court’s dismissal on the basis of Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), of that part of appellant’s action alleging unlawful detention.

I would reverse the district court’s dismissal of appellant’s unlawful confrontation claim and remand for further proceedings. In my opinion, appellant adequately raised a constitutional claim that he was arrested without “a reasonable suspicion, based upon objective facts, that [he was] involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). I note that, as far as I can *1148determine from the record, appellant was not in violation of any municipal ordinance or statute at the time of this confrontation.