Patricia J. Barry Charlene Karr v. Gary Fowler, 902 F.2d 770 (9th Cir. 1990). · Go Syfert
Search
Patricia J. Barry Charlene Karr v. Gary Fowler, 902 F.2d 770 (9th Cir. 1990). Cases Citing This Book View Copy Cite
Quick Summary

An arrest is constitutional if the officer has probable cause for one charge even if they lack probable cause for another charge.

A plaintiff brought a section 1983 action alleging that a police officer violated her Fourth Amendment rights by making a warrantless arrest for vehicle tampering and public drunkenness. The court held that the constitutionality of a warrantless arrest is determined by the existence of probable cause rather than whether the offense was committed in the officer's presence. Because the officer's knowledge that the plaintiff directed someone to tamper with a vehicle provided sufficient facts to warrant a prudent person's belief that an offense was committed, probable cause existed. Although the district court properly granted a directed verdict, the award of attorneys' fees was reversed because such fees in civil rights cases should only be awarded in exceptional circumstances.

275 citation events (211 in the last 25 years) across 41 distinct courts.
Strongest positive: Chambers v. Copeland, No. 4:25-cv-00011 (D. Alaska July 28, 2025)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
How cited ↗
Cited for
At page 773 Determining probable cause for warrantless arrest and federal claims75 citing cases“attorneys' fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.”12 citing courts quote it · 70 listed here
  • Crowe v. Cnty. of San Diego, 303 F. Supp. 2d 1050 (S.D. Cal. 2004).published 2 cites
    (Probable cause for a warrantless arrest arises when the facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe ‘that the suspect has committed, is committing, or is…)
  • Arthur Knight v. Jacobson, 300 F.3d 1272 (11th Cir. 2002).published 3 cites
    (While Barry may have a remedy under state law [for the warrantless arrest], she has faded to allege a federal constitutional or federal statutory violation)
  • Chhang, No. 1:23-cv-01335 (E.D. Cal. Sept. 24, 2026).
    The Ninth Circuit further has recognized that 9 “[a]ttorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional 10 circumstances.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990). 11 III. 12 DISCUSSION 13 D…
  • Reeping, No. 1:25-cv-00047 (D. Idaho Nov. 5, 2025).
    “Attorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).
  • Crites-Bachert v. Providence Health & Servs. - Oregon, No. 3:23-cv-01510 (D. Or. Aug. 22, 2025).
    To that end, the Ninth Circuit instructs that fees should only be awarded to defendants in civil rights actions “in exceptional circumstances.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990); see Wilson v. Lane Cnty.
  • Shumate v. Route 1 Inc., No. 2:22-cv-01786 (D. Ariz. May 14, 2025).
    Where, as here, 9 Defendants prevailed at summary judgment on Plaintiff’s civil rights claims, the Ninth 10 Circuit has held that attorney’s fees “should only be awarded to a defendant in exceptional 11 circumstances,” Barry v. Fowler, 902…
  • Gonzalez v. Ahern, No. 3:19-cv-07423 (N.D. Cal. Sept. 23, 2024).
    Rather, “[a]ttorneys’ fees [and costs] in civil 8 || rights cases should only be awarded to a defendant in exceptional circumstances.” Barry v. 9 || Fowler, 902 F.2d 770, 773 (9th Cir. 1990).
  • Casaceli v. Liberty Healthcare Corp., No. 2:21-cv-01413 (D. Ariz. June 28, 2024).
    (Reply || at 8.) Even when Plaintiff declined Defendant’s settlement offers, she may reasonably have || believed her claims were viable. 3 The Ninth Circuit counsels that fees may be awarded against an unsuccessful § 1983 4|| plaintiff onl…
  • IRWS, LLC v. Elmore Cnty., No. 1:23-cv-00485 (D. Idaho May 9, 2024).
    “Attorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).
  • Bey v. Arizona, State of, No. 2:23-cv-00477 (D. Ariz. May 2, 2024).
    Bingham v. City of Manhattan Beach, 341 F.3d 939, 952 (9th Cir. 2003), 9 overruled on other grounds by Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946 , 10 956 n. 14 (9th Cir.2010); Barry v. Fowler, 902 F.2d 770, 773, n.5 (9th Cir.…
Show 60 more citing cases
At page 772 Determining warrantless arrest reasonableness under the fourth amendment77 citing casesThe requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment4 citing courts put it this way · 67 listed here
  • Chambers v. Copeland, No. 4:25-cv-00011 (D. Alaska July 28, 2025).
    (A warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.)
  • State v. Hipsher, 2023-Ohio-3750, 226 N.E.3d 533.published
    (The requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment)
  • United States v. Marc Willy, 40 F.4th 1074 (9th Cir. 2022).published
    (The requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not grounded in the Fourth Amendment.)
  • Atwater v. City of Lago Vista, 195 F.3d 242 (5th Cir. 1999).published
    (The requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment.)
  • Atwater v. City of Lago Vista, 171 F.3d 258 (5th Cir. 1999).published
    (The requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment.)
  • Beam, No. 1:26-cv-00109 (D. Idaho July 10, 2026).
    Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (relying on Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974)) (the Fourth Amendment does not prohibit warrantless arrests for misdemeanors committed outside the officer’s presence).
  • Posey v. Las Vegas Metro. Police Dep't, No. 2:23-cv-01936 (D. Nev. Aug. 8, 2025). 2 cites
    “The ‘reasonableness’ and 15 hence constitutionality of a warrantless arrest is determined by the existence of probable 16 cause.” Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (emphasis added).
  • Carswell v. Ferrari, No. 1:23-cv-00468 (D. Idaho June 20, 2025).
    Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).
  • Samuel Verdin v. Kathleen Alison, No. 5:22-cv-00597 (C.D. Cal. Dec. 30, 2024). 2 cites
    Under these applicable standards, Plaintiff’s 25 allegations were insufficient. 26 Plaintiff objects that his state law claims are not barred in an 27 action under 42 U.S.C. § 1983 . [Doc. # 35 at 5–7.] As the Report found, 1 [Doc. # 32 at…
  • Hudson v. Simon, No. 3:23-cv-02229 (S.D. Cal. Mar. 13, 2024).
    But see Hudson v. 23 Palmer, 468 U.S. 517, 528 (1984) (stating searches done for the purpose of harassment are 24 not constitutionally valid). 25 5 In his complaint, Huston also references the state tort of false imprisonment. 26 (ECF 5, a…
Show 57 more citing cases
Retrieving the full opinion text from the archive…
Patricia J. BARRY; Charlene Karr, Plaintiffs-Appellants,
v.
Gary FOWLER, Defendant-Appellee
88-6343, 88-6463.
Docket on CourtListener (RECAP)
Court of Appeals for the Ninth Circuit.
May 10, 1990.
Published opinion
902 F.2d 770
1990 U.S. App. LEXIS 7544
1990 WL 58890
Patricia J. Barry, Lomita, Cal., in pro per., Emily J. Andersen, Breidenbach, Swain-ston, Crispo & Way, Los Angeles, Cal., for defendant-appellee.
Hug, Schroeder, Hall.
Cited by 201 opinions  |  Published
HUG, Circuit Judge:

I.

This case arises out of a dispute which occurred in 1982 between Patricia Barry (“Barry”), an attorney representing herself in this appeal, and Gary Fowler (“Fowler”), a California Highway Patrol Officer.

Barry filed a 42 U.S.C. § 1983 action against Fowler alleging violation of her Fourth Amendment rights. [1] The district court granted Fowler’s motion for a directed verdict. [2] The court also awarded Fowler costs and attorneys’ fees. This appeal followed. We affirm in part and reverse in part.

II.

Barry’s action arises out of an incident between Barry and Fowler, which occurred when Barry called the California Highway Patrol to complain that a man had parked his car illegally on her parents’ property. While waiting for the officer to arrive,[*772] Barry told a friend’s son to paste a “no trespassing” sign to the car’s windshield. When Fowler arrived to investigate the complaint, he and Barry argued. Fowler then arrested Barry for vehicle tampering and public drunkenness. The drunkenness charge was dropped before trial, but Barry was convicted by a jury of vehicle tampering.

After extensive litigation involving parties and claims not relevant to this appeal, Barry brought a 42 U.S.C. § 1983 action against Fowler. Barry maintains that Fowler violated her Fourth Amendment rights by falsely arresting her for auto tampering and public drunkenness. [3]

Barry presented her case to a jury. The district court granted Fowler’s motion for directed verdict.

III.

To state a cause of action under section 1983, Barry must show that (1) Fowler acted under color of state law; and (2) Fowler deprived her of rights secured by the Constitution or federal law. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir.1988). There is no dispute that Fowler was acting under color of state law when he arrested Barry. However, in order to prevail Barry must also prove deprivation of a federal constitutional or federal statutory right. This she has not done.

Barry maintains that her misdemeanor arrest for auto tampering violated her Fourth Amendment rights because the tampering was not done in Fowler’s presence. Under California law, an officer may make a warrantless misdemeanor arrest only if he has reasonable cause to believe that a person has committed a misdemean- or in his presence. Cal.Penal Code § 836, subd. 1 (West 1985). Relying on the expansive definition of presence under California law, the district court found Fowler was present when Barry tampered with the car. While we agree that directed verdict was proper in this case, we do not believe that Fowler’s presence when the misdemeanor was committed is relevant to Barry’s constitutional claim. [4]

The Fourth Amendment protects persons against “unreasonable searches and seizures.” U.S. Const, amend. IV. The “reasonableness” and hence constitutionality of a warrantless arrest is determined by the existence of probable cause. See, e.g., United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989). The requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrant-less arrest is not grounded in the Fourth Amendment. See Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir.1974) (cited in Welsh v. Wisconsin, 466 U.S. 740, 756, 104 S.Ct. 2091, 2101, 80 L.Ed.2d 732 (J. White dissenting) (1984)). See also Clark v. Link, 855 F.2d 156, 161-63 (4th Cir.1988) (holding that section 1983 actions based on violation of the Fourth Amendment may not rest on violation of state law); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1349 (7th Cir.1985) (violation of state statute does not give rise to section 1983 action); Wagner v. Higgins, 754 F.2d 186, 190-91 (6th Cir.1985) (search violating state constitution does not state a cause of action under section 1983).

Thus, the vitality of Barry’s section 1983 action is not dependent on whether Fowler was present when Barry committed the misdemeanor. Rather, the crucial inquiry is whether Fowler had probable cause to make the arrest. See McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.1984).

Probable cause is generally a question for the jury. McKenzie, 738 F.2d at 1008.[*773] However, a directed verdict is proper if no reasonable jury could determine that the officer did not have probable cause to arrest. Kennedy v. Los Angeles Police Dept., 887 F.2d 920, 923 (9th Cir.1989).

Probable cause for a warrantless arrest arises when the facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe “that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979).

Here, the circumstances surrounding Barry’s arrest support Fowler’s determination that Barry had committed a crime. California law prohibits a person “individually or in association with one or more other persons, [from] willfully injurpng] or tamperpng] with any vehicle_” Cal.Vehicle Code § 10852 (West 1987). When Fowler arrived at the scene, Barry admitted directing a friend’s son to paste a sign to a ear’s windshield. Thus, Fowler had probable cause to arrest Barry for auto tampering.

The critical inquiry in a section 1983 action “is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.' ” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Barry has failed to make this requisite showing. While Barry may have a remedy under state law, she has failed to allege a federal constitutional or federal statutory violation. Because no reasonable jury could find in her favor, directed verdict was proper. [5]

IV.

Barry also challenges the district court’s award of costs and attorneys’ fees.

A prevailing party is entitled to costs unless the court rules otherwise. Fed.R. Civ.P. 54(d). “Whether or not to award costs is a decision made by the trial judge and ‘his decision will not be overturned unless he has abused his discretion.’ ” Trans. Container Serv. v. Sec. Forwarders, Inc., 752 F.2d 483, 488 (9th Cir.1985) (citation omitted). The district court did not abuse its discretion when it awarded Fowler costs.

Awards of attorneys’ fees are also reviewed for abuse of discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). A defendant in a civil rights case may recover attorneys’ fees only if the plaintiff's action was “frivolous, unreasonable or without foundation.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (citations omitted). Attorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional circumstances. See Mitchell v. Los Angeles County Superintendent of Schools, 805 F.2d 844, 848 (9th Cir.1986), cert. denied, 484 U.S. 858, 108 S.Ct. 168, 98 L.Ed.2d 122 (1987). Although Barry did not prevail on her civil rights claim, we cannot conclude that her action was frivolous. We therefore reverse the district court judgment awarding attorneys’ fees against Barry.

AFFIRMED IN PART and REVERSED IN PART.

1

. Charlene Karr joined Barry in the district court action, but has opted out of this appeal. The only claims before us involve Barry.

2

. Because this was a jury trial, Fowler's motion for nonsuit pursuant to Fed.R.Civ.P. 41(b) is more properly deemed a directed verdict pursuant to Fed.R.Civ.P. 50(a).

3

. In certain circumstances, police officers are entitled to qualified immunity for deprivation of an individual’s civil rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). However, qualified immunity is “an affirmative defense that must be pleaded by a defendant official." Evans v. McKay, 869 F.2d 1341, 1348 n. 8 (9th Cir.1989). Neither party has raised this issue on appeal. We assume, therefore, that Fowler has waived the defense.

4

. It is well settled that an appellate court may affirm the district court on any basis fairly supported by the record. Swenson v. United States Postal Serv., 890 F.2d 1075, 1077 n. 1 (9th Cir.1989).

5

. Barry also alleges that Fowler lacked probable cause to arrest her for public drunkenness. We need not address this contention. Barry was arrested only once, albeit for two different crimes. We have already determined that Fowler had probable cause to arrest Barry for auto tampering. Therefore, Barry's single "seizure” was not unconstitutional, even if Fowler lacked probable cause to arrest her for public drunkenness.