Armed & Potty-Mouthed: IRS Agent Arrested For Incident HE Started, Sues And Loses

FOX v. DESOTO, USCA-6 No. 06-5930, 2007 U.S.App. LEXIS 12847, on appeal from USDC-KYWD, before USCJs Guy, Cole, McKeague, opinion by Guy, filed 04 Jun 2007.

LONG STORY SHORT: Airport security officer had probable cause to arrest a federal agent who appeared to be reaching for a weapon after having been thrown off an airliner for swearing at another passenger. Binding in KY, MI, OH, TN.

FACTS: Plaintiff, an Internal Revenue Service Special Agent who was authorized to fly armed, boarded a Southwest Airlines airliner at the Louisville, KY airport. Plaintiff tried unsuccessfully to fit his carryon bag into an overhead bin. Passenger told him it wasn't going to fit and he was blocking the aisle. Plaintiff admitted that he told her to "f*** off," and there was testimony that Plaintiff said the same to her fiance after he took up for her. A flight attendant immediately informed the captain, who ordered Plaintiff off the airliner and informed TSA that an armed purported IRS agent would be waiting in the gate area.

Defendant, a police officer of the Regional Airport Authority, and two other officers responded to where Plaintiff was sitting and asked Plaintiff for identification several times. Plaintiff refused and insisted on speaking to Southwest's Ground Security Coordinator, per IRS procedure when encountering problems while flying armed. A Southwest employee approached and identified herself as the duty GSC and offered to book him on another flight, but Plaintiff would not talk to her either (later testifying that she did not identify herself as a GSC). Because people were beginning to gather around the scene, Defendant asked Plaintiff to come with him, and took Plaintiff's arm. Plaintiff stood up and reached for his right side. Defendant took Plaintiff to the floor with an arm-bar hold and put his knee on the back of Plaintiff's head while other officers assisted him in handcuffing Plaintiff, who sustained a cut and bruise. Defendant removed Plaintiff's weapon and spare magazines and arrested him for disorderly conduct and resisting arrest. Plaintiff later testified that he was only reaching for his credentials, but also admitted he kept his weapon on that side.

PROCEDURE: Plaintiff went to trial on the disorderly conduct and resisting arrest charges, where the trial court directed a verdict of acquittal. More than two years after the airport incident, Plaintiff sued Defendant in U.S. District Court for the Western District of Kentucky per 42 U.S.C. § 1983 for arresting him without probable cause and with excessive force in violation of the Fourth Amendment, and also for state torts including malicious prosecution. After discovery, Defendant moved for summary judgment, arguing that Plaintiff's suit was filed after Kentucky's one-year statute of limitations had run, and also that Defendant was entitled to qualified immunity. Plaintiff responded that the SOL did not start running until after the state trial court had acquitted him, and that Defendant had illegally arrested him. The trial court ruled that the limitations period for all but the malicious prosecution claim had begun on the date of Plaintiff's arrest and that the suit was time barred; alternatively, Defendant had not violated Plaintiff's Fourth Amendment rights and did not maliciously prosecute him. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: Generally, citizens may not sue under § 1983 when the desired result would imply the invalidity of a state court judgment. Malicious prosecution claims do not accrue until the underlying proceeding has terminated in the citizen's favor, and that is also when any limitations period begins to run. However, claims of excessive force and false arrest can be sued upon as soon as they happen, because they do not depend on the result of the underlying prosecution, especially when the citizen never gets prosecuted at all after arrest. Here, except for malicious prosecution, Plaintiff's claims accrued when he was arrested. Under Kentucky's statute of limitations, he had to sue no later than one year afterward, so his claims were time-barred and correctly dismissed.

In the alternative, Defendant acted as a reasonable officer would have in the circumstances. Plaintiff had been thrown off an airliner for causing a disturbance; was known to be armed but would not show his credentials to anyone; would not identify himself even to Defendant and the GSC; and his conduct was attracting a lot of attention in the terminal. Plaintiff then reached for his right side, where weapons are usually carried. This met the elements of Kentucky's disorderly conduct statute, and together with the apparent danger of Plaintiff deploying a weapon in the croweded terminal, gave Defendant ample reason for taking Plaintiff to the floor immediately and handcuffing and disarming him. Since Defendant had probable cause for arresting Defendant, he could not have been liable for malicious prosecution either. SUMMARY JUDGMENT AFFIRMED in all respects.

EDITORIAL: "An armed society is a polite society." Right, Mr. Heinlein, but only when the arms are more or less evenly distributed. I would guess that the T-Man in question was either very new on the job, or having an extremely bad day, or shouldn't have been an agent in the first place, and maybe all three. Responsible gunbearers know that when you take your carry piece out of the gun safe, you take all the chips off your shoulder and lock THEM up. Armed citizens and officers must be MORE even-tempered and restrained than everyone else. Walk, no run, away from provocation whenever possible. Lose all traces of attitude and self-righteousness. And for petesakes, if you are armed in the presence of officers who don't know you, then you do exactly as they tell you to, and give them no cause to think you may be about to misuse your weapon. The life you save may be your own.

Good show to Officer DeSoto for quick, decisive, and correct action to shut down a hair-raising situation. I hope I would have responded as competently.