(CN) — An attorney for the city of Tucson, Arizona, told the Ninth Circuit on Tuesday that police officers in Arizona have probable cause to arrest drivers for refusing to provide a driver's license when asked, even if the driver is not pulled over while driving.
The argument stems from a lawsuit filed by TaRaHawk von Brinken against Tucson police officers James Voss and Richard Legarra in June 2014, claiming unlawful arrest and false imprisonment.
"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," Tucson's attorney Michelle Saavedra told a three-judge panel of the Ninth Circuit. "Even if this court finds that the statute did not apply to these particular facts, they are still entitled to qualified immunity because it was not clearly established at the time that it would be a constitutional violation to arrest him under the statute."
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."
According to von Brinken, he was driving behind a friend in Tucson when the friend was pulled over by Voss into a bowling alley parking lot. Von Brinken also pulled into the parking lot, and parked some distance away from Voss and his friend's vehicle.
After talking to his friend, Voss approached von Brinken and told him his headlights were not Department of Transportation-compliant and asked to see von Brinken's driver's license.
When von Brinken refused to show Voss his license, Voss and Legarra arrested him.
"Well, isn't it clearly established that an officer can't arrest a person, put handcuffs on him, unless he has probable cause and believes he has committed a criminal offense?" asked Ninth Circuit Judge Carlos Bea.
"They do have authority to stop and detain someone for the purpose of investigating a traffic violation," Saavedra answered. "The person is not under arrest at that point."
U.S. District Judge James Soto found in September 2015 that Voss and Legarra weren't immune to the unlawful arrest and false imprisonment claims because they did not have probable cause to arrest von Brinken.
Voss never gave von Brinken a "visual or audible signal" to stop his car, and von Brinken never refused to bring his vehicle to a stop, Soto found.
"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" that does not subject one to arrest, Soto wrote.
David Karnas, an attorney for von Brinken, argued that Voss didn't use 28-3169 as his basis to arrest von Brinken.
"Why does that make a difference? The Supreme Court has told us it doesn't matter what the basis of the arrest is," Circuit Judge Sandra Ikuta said.
"Voss encountered Mr. von Brinken, and Mr. von Brinken refused because he was not pulled over," Karnas said. "It does not give him basis for arrest. You cannot arrest for failure to display."
The panel did not indicate how or when it would rule.
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