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Ninth Circuit Upholds Arrest Over Refusal to Show Driver’s Licence

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November 23, 2016 Jamie Ross | Courthouse News

TUCSON, Ariz. (CN) – Two police officers who arrested a man for refusing to show his driver’s license reasonably believed they had probable cause to make the arrest and should be granted immunity, the Ninth Circuit ruled Wednesday.

TaRaHawk von Brinken sued Tucson police officers James Voss and Richard Legarra in June 2014, claiming they unlawfully arrested him after he refused to show Voss his driver’s license.

Von Brinken claimed he was driving behind a friend when Voss pulled the friend over into a bowling alley parking lot. Von Brinken followed and parked in the same lot, away from Voss and his friend’s vehicle.

U.S. District Judge James Soto found that Voss and Legarra were not immune to von Brinken’s claims because they did not have probable cause to arrest him.

“While plaintiff knowingly refused to show his license to Voss, this was only a violation of § 28-3169(A) which is a civil traffic violation” Soto wrote.

In October, an attorney for the city of Tucson argued before a three-judge panel of the Ninth Circuit that the officers were entitled to immunity.

“They are entitled to qualified immunity, first because there was probable cause to arrest Mr. von Brinken under A.R.S. 28-1595(B) when he failed and refused to provide his driver’s license, even though he was not pulled over while he was driving,” attorney Michelle Saavedra told court.

Under the statute, “the operator of a motor vehicle who fails or refuses to exhibit the operator’s driver license as required by section 28-3169 or a driver who is not licensed and who fails or refuses to provide evidence of the driver’s identity on request is guilty of a class 2 misdemeanor.”

In an unpublished memorandum decision, Circuit Judges Carlos Bea and Sandra Ikuta agreed with Saavedra that the officers should be granted immunity.

“Because an officer in Voss’s position could reasonably believe von Brinken committed a misdemeanor in his presence, Voss and Legarra could reasonably believe that Voss had the authority to arrest von Brinken and that the arrest would not violate von Brinken’s Fourth Amendment rights,” the opinion states.

In a dissent, Chief Circuit Judge Sidney Thomas wrote that Soto decided the case correctly.

“Because it is undisputed that Officer Voss did not conduct a traffic stop of von Brinken before demanding to see his driver’s license, the arrest for failure to produce the driver’s license lacked probable cause and was therefore unconstitutional,” Thomas wrote. “To hold otherwise, as the majority does, turns a traffic offense statute into a ‘stop and show me your papers’ statute.”

An attorney for von Brinken was out of town and had not seen the decision. Saavedra declined to comment.

The Ninth Circuit’s memorandum opinion spelled von Brinken’s name throughout as “von Brincken.” However, the man’s original complaint lists his name as von Brinken, which Courthouse News has used in its stories on the lawsuit.