UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 29, 1985
UNITED STATES OF AMERICA
GIBBS, ROBERT, APPELLANT
On Appeal from the United States District Court for the Western District of Pennsylvania (Criminal No. 84-00063-01). Sat Below: Honorable Gustave Diamond.
Before HUNTER and GARTH, Circuit Judges and GERRY, District Judge.*fn*
MEMORANDUM OPINION OF THE COURT
GARTH, Circuit Judge:
Robert Gibbs appeals from a judgment of conviction and sentence under 38 C.F.R. § 1.219(b)(11)(1983), for disorderly conduct impeding the normal operation of a Veterans Administration hospital. Gibbs, who parked his car in a restricted area near the entrance of the Veterans Administration hospital in Pittsburgh, claims that his refusal to identify himself to a Veterans Administration police officer, who had previously ticketed his car, resulted in the imposition of a harsher penalty upon Gibbs. Specifically, Gibbs contends that he should have been subject to no more than a $15 fine for violation of 38 C.F.R. § 1.219(b)(24) (1983) (failure to comply with traffic directions of hospital police), whereas his refusal to identify himself lead [sic] to conviction under § 1.219(b)(11) and imposition of a $25 fine.
This case was originally tried before a United States Magistrate. The trial record discloses: (1) that on March 12, 1984, Gibbs drove to the Veterans Administration hospital to meet a patient about to be discharged; (2) that Gibbs was given permission to park in a restricted area near the hospital entrance, provided he returned promptly with the discharged patient; (3) that Gibbs failed to return promptly; (4) that a hospital policeman then issued a ticket for violation of 38 C.F.R. § 1.219(b)(24); (5) that a routine check of the vehicle's registration revealed it was registered in the name of Mary Gibbs; (6) that a police supervisor consequently directed that Gibb's identification be checked when he returned to the car; (7) that Gibbs, on his return, refused to produce identification; (8) that a fight then ensued between Gibbs and the police officer; (9) that a second officer helped to subdue Gibbs; (10) that Gibbs was arrested and charged before a Magistrate with violation of 38 C.F.R. § 1.219(b)(11); and (11) that the two police officers were away from their posts for approximately five hours in order to appear before the Magistrate on the day of Gibbs' arrest.
Although conflicting testimony exists in the record as to how the fight between Gibbs and the police officer began, the magistrate found that sufficient evidence existed to prove that Gibbs' conduct disrupted the normal operations of the hospital. On post-conviction review, the district court affirmed the magistrate's judgment. We also affirm.
We have carefully examined the record and conclude that the magistrate did not err in finding Gibbs guilty. That the magistrate found the officers' testimony more convincing than that of Gibbs is a credibility determination to which we, as an appellate court, must defer. Nor do we conclude that the trial court erred in its application of the law to the facts.
Gibbs argues that he was subjected to a harsher charge and consequent penalty solely because of his refusal to identify himself. In support of his position, Gibbs relies upon cases in which the detention of individuals pursuant to statutes requiring the furnishing of identification was held unconstitutional in the absence of some probable cause for arrest. See Kolender v. Lawson, 103 S. Ct. 1855 (1983); Brown v. Texas, 443 U.S. 47 (1979); Michigan v. DeFillippo, 443 U.S. 31 (1979). The underlying rationale for such decisions is that detaining an individual to require him to identify himself constitutes a seizure of his person subject to the fourth amendment requirement that the seizure be reasonable. See Terry v. Ohio, 392 U.S. 1 (1968). Gibbs, however, was not detained pursuant to any such statute. Moreover, Gibbs concedes that under the applicable regulations, it was reasonable to detain him once he had been cited with violation of 38 C.F.R. § 1.219.(b)(24). We therefore find Gibbs' argument to be unpersuasive.
The trial court concluded that Gibb's conduct subsequent to the request for identification was itself disorderly conduct in violation of 38 C.F.R. § 1.219(b)(11. Cf. Kolender v. Lawson, 103 S. Ct. at 1863 n.4 (Brennan, J., dissenting) ("some reactions by individuals to a properly limited Terry encounter, e.g. violence toward a police officer, in and of themselves furnish valid grounds for arrest."). We agree.
The judgment of conviction will be affirmed.