Holland v. City of Portland

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1226

RORY C. HOLLAND,

Plaintiff, Appellant,

v.

CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin, Circuit Judge,

and Lisi,* District Judge.

Stuart W. Tisdale for appellant.

John E. Sedgewick with whom Berman & Simmons, P.A. was on brief

for appellees.

December 6, 1996

*Of the District of Rhode Island, sitting by designation.

BOUDIN, Circuit Judge. Rory Holland sued the City of

Portland, Maine, and two Portland police officers, Sullivan

Rizzo and Bruce Coffin, for damages and injunctive relief

under 42 U.S.C. 1983 and Maine tort law for Holland's

allegedly wrongful false arrest and detention. Following

discovery, the district court granted the defendants' motion

for summary judgment on all of Holland's claims. Holland

appeals from the court's judgment dismissing his

section 1983, but not his state law, claim.

The facts, taken most favorably to Holland, are as

follows. At about 1:20 p.m. on October 18, 1994, Portland

police radio traffic reported a robbery at the Key Bank in

Canal Plaza. The police dispatcher described the suspect as

a black male, about 6'2" tall, 185 pounds, unshaven, wearing

a brown jacket, possibly suede, and a black hat, and carrying

a black leather briefcase. The dispatcher reported that the

suspect had fled on foot and did not indicate that any

vehicle had been involved.

Shortly after 2:00 p.m. on the same day, Holland was

driving a Subaru to the Cumberland County Courthouse in

Portland. He drove past a bicycle patrolman, Daniel Knight,

and turned the corner. Knight had heard the dispatcher's

report about the robbery. When he saw the Subaru, he noticed

that the driver, Holland, was a tall, thin black man wearing

a brown or black jacket and a hat who appeared to meet the

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description of the suspect, and he also noticed that the car

had no back window.

Knight reported to the police dispatcher, "Ten-twenty on

Rory Holland, he's in the area." Although Knight had not met

Holland, he thought that the Subaru driver fit descriptions

of Holland that Knight had seen in police bulletins. The

dispatcher asked if Holland's clothing matched that of the

reported suspect. Knight did not respond, but the dispatcher

immediately sent backup police units and indicated that the

suspect was a "possible match."

After turning the corner Holland parked his car and

started walking across the street towards the courthouse. He

wore a brown tweed jacket and a brown leather hat, and was

carrying a black nylon briefcase and a white canvas bookbag.

Knight stopped Holland in the crosswalk and, addressing

Holland by name, said that a bank robbery had just been

committed and asked where Holland had been. Knight also

asked about the contents of Holland's bag. Holland remained

silent.

Coffin, Rizzo, and another officer soon arrived at the

scene, and the officers then walked up to Holland, backing

him up to his car. Coffin was familiar with Holland's past

history from information circulated within the police

department and thought that the Subaru driver was Holland.

Rizzo had also heard about Holland in department briefings

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and previously had seen a photograph of Holland. Coffin and

Rizzo then began to ask Holland questions concerning the bank

robbery.

Although Rizzo told Holland that he was not under

arrest, and that the police just wanted to learn about the

bank robbery, Holland remained silent. Noticing the missing

rear window in Holland's car, Rizzo asked Knight if Holland

had been driving. When Knight said that he had, Rizzo

allegedly said, "well, then we can get him for not having a

license or something or other." Rizzo then said, "Rory, you

know, I can arrest you if you don't show me a valid driver's

license and tell me where you live . . . ."

Holland continued to remain silent. Rizzo asked Holland

several more times to produce his license and to tell Rizzo

where he lived, saying that otherwise Rizzo would arrest him

"for failure to identify yourself to me." Eventually, Rizzo

told Holland that he was under arrest. At that point, Rizzo

and Coffin patted down Holland, removed his wallet, and found

a driver's license in the wallet that identified the driver

as Rory Holland. Rizzo then allegedly said, "I guess we got

a license in here, I guess we can't get you for that."

Coffin and Rizzo took Holland to the Cumberland County

Jail. According to Holland, some officers referred to him as

a bank robbery suspect. Holland refused to speak with the

booking officer or others at the jail. Holland was released

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on bail after the police apprehended another bank robbery

suspect. Ultimately, no charges of any kind were pressed

against Holland.

Thereafter, Holland brought the present suit against

Rizzo, Coffin and the city. As the basis for his section

1983 claim, Holland alleged that his arrest had violated the

Fourth Amendment's protection against unreasonable searches

and seizures made applicable to the states through the

Fourteenth Amendment. Specifically, the complaint alleged

that the police lacked probable cause to arrest him for any

reason, that the actual charge was a pretext to detain him

for questioning about the bank robbery, and that the arrest

was retaliation for his refusal to speak.

In the course of discovery Holland--who had previously

been in disputes with the Portland police--learned that some

weeks before the arrest, the police had circulated

information about him in so-called crime alert bulletins.

Knitting the bulletins together with the disputes, Holland

suggested that his arrest was part of a general campaign of

harassment directed against him by the police. Holland did

not amend his complaint.

On January 25, 1996, the district court granted the

defendants' motion for summary judgment. The district court

ruled that the police had probable cause to arrest Holland

for failing to identify himself or provide his license. It

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called the charge of harassment "hollow." And it ruled that

the city was not liable because, quite apart from the lack of

a municipal custom or policy, this arrest had been justified.

Holland now appeals.

1. On review of a grant of summary judgment, this court

considers the matter de novo, taking the facts most favorably

to the non-moving party. St. Hilaire v. City of Laconia, 71

F.3d 20, 24 (1st Cir. 1995), cert. denied, 116 S. Ct. 2548

(1996). We begin by considering whether the police had

probable cause to arrest Holland--that is, whether the facts

known to the police indicated that Holland had committed a

criminal offense. The parties agree that Holland was charged

with violating 29 Me. Rev. Stat. Ann. 2501 (later

renumbered) which said:

Whoever, while operating a vehicle in violation
of this [motor vehicle regulations] Title, fails or
refuses, when requested by an officer authorized to
make arrests, to give the operator's correct name,
address and date of birth is guilty of a Class E
crime.

At first blush, the literal language might appear to

make the officers' authority depend upon whether the driver

was actually operating in violation of state law. But the

Maine Supreme Judicial Court has interpreted section 2501 to

permit an officer to stop a driver and ask his name on the

basis of an articulable suspicion that the driver has done

something wrong. State v. Littlefield, 677 A.2d 1055, 1057

(Me. 1996). Indeed, even if it then becomes clear that the

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suspected violation had not occurred, the officer may still

insist on seeing the driver's license and registration.

State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).

Holland may not have violated any motor vehicle law by

driving with a missing rear window. But the missing rear

window, or any other similar non-cosmetic damage, could

reasonably create a suspicion of such a violation. See 29

Me. Rev. Stat. Ann. 2503(1)(D) (requiring that motor

vehicle equipment "[n]ot pose a hazard . . . ."). Thus, when

the officers asked Holland to identify himself, section 2501

required Holland to provide his name, address, and date of

birth--or face arrest. See 17-A Me. Rev. Stat. Ann. 15(B)

(authorizing arrest for Class E crimes committed in an

officer's presence).

Holland does not challenge the initial stop, see Terry

v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself

is unconstitutional. Cf. California v. Byers, 402 U.S. 424

(1971). He instead argues that the police had no reason to

request his name since they already knew it, citing Rodriguez

v. Comas, 888 F.2d 899 (1st Cir. 1989). But where the law

requires the motorist to supply his name, the police can

reasonably insist upon confirmation. Further, the police

also sought Holland's present address, which the statute

required him to provide, and there is no indication that the

police had this information.

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Holland's reliance on Rodriquez is misplaced. There,

Rodriguez was arrested on a charge of obstruction of justice

because he declined to provide his name and address to an

officer. Rodriquez was well known to the officer, and there

was no separate statute--such as Maine's motor vehicle law--

requiring that he provide his name and address. This court

held only that the refusal could not even arguably constitute

"obstruction of justice" where the refusal to provide this

already-known information neither could nor did obstruct the

officer's investigation. 888 F.2d at 902.

Quoting language from other cases, Holland also claims

that police officers may not arrest a suspect if they can

obtain the information that they seek through a reasonable

investigation. See Sevigny v. Dicksey, 846 F.2d 953 (4th

Cir. 1988); BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986).

But these cases impose no such limitation; rather, they

demand that officers undertake reasonable investigation to

determine whether probable cause exists to arrest a suspect.

Sevigny, 846 F.2d at 957-58; BeVier, 806 F.2d at 127. Here,

Holland committed the offense in the presence of the

officers.

2. Although Holland devotes much of his brief to

disputing the police claim of probable cause, he has a fall-

back contention less easily resolved. Fairly construing his

arguments, we take him to challenge the validity of his

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arrest even assuming probable cause (which he disputes

strongly but we find to be established). In sum, he says

that the police nominally arrested him for refusing to give

his name and address but that this was a "pretext" because

the arrest was motivated by other, more sinister objectives.

On Holland's version of events, which must be credited

at this stage, see St. Hilaire, 71 F.3d at 24, there is

reason for thinking that the police did not care much about

the missing car window or Holland's failure to give his name

or address. Indeed, a jury, after a full trial, might well

find that the police arrested Holland for a technical

violation in order to pursue their investigation into the

bank robbery, suspecting Holland of complicity but perhaps

lacking enough evidence to arrest him on this charge.

The term "pretext" is sometimes used, as Holland uses it

here, with the assertion that the police may not make an

arrest otherwise based on probable cause when their true aim

is to forward some other investigation. But aside from

dicta, it is hard to find recent holdings to support this

proposition; one exception is the Eleventh Circuit. United

States v. Valdez, 931 F.2d 1448, 1450-51 (11th Cir. 1991).

Our own circuit, like several others, has rejected the

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inquiry into motive. United States v. McCambridge, 551 F.2d

865, 869-70 (1st Cir. 1977).1

In all events, the Supreme Court recently settled the

matter in Whren v. United States, 116 S. Ct. 1769 (1996),

holding that "[s]ubjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis." Id. at

1774. There, the Court explicitly rejected the very test

used by the Eleventh Circuit in Valdez which asks whether the

officer "would" have made the stop or arrest absent the

"other" motive. See id. at 1774-75; see also United States

v. Robinson, 414 U.S. 218, 221 n.1 (1973) (lawful traffic

violation arrest was not unconstitutional, despite claim that

it was "a mere pretext for a narcotics search").

The conflicting policy concerns are obvious. On the one

hand, motor vehicle operation often gives rise to fairly

minor violations, making it easy for the police to find an

excuse; on the other hand, the violation does provide a

bright line standard while an inquiry into actual motive,

directly or indirectly, invites all kinds of diversion. See

Whren, 116 S. Ct. at 1774-75. Further, "pretextual" stops or

arrests, where probable cause exists and the motive is to

1To the annoyance of commentators, the dominant view in
the circuits has favored a strictly objective test as to
whether probable cause justifies a search or an arrest. See

1 LaFave, Search and Seizure 1.4(e), at 120-21 & n.61 (3d

ed. 1996).

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investigate another crime, may not seem all that sinister to

the Justices, who were unanimous in Whren.

How far Whren would extend in the face of dubious

motives or other constitutional concerns is a more difficult

question, and one not entirely avoidable here. Holland's

version of events suggests that the police aimed not only to

hold him for further investigation but also that the arrest

itself was retaliation for his refusal to answer questions

about the robbery. According to Holland, after he refused to

answer any questions about the bank robbery, Rizzo said that

because Holland had been driving, "well, then we can get him

for not having a license or something or other." Holland

further asserted that Rizzo was "obviously upset and angry

with me that I would not speak with him at all about the

robbery."

Holland's brief barely refers to the Fifth Amendment;

and the law on the relationship between police questioning

and the privilege against self-incrimination is an

embarrassing tangle. Historically, the privilege and police

questioning were unconnected, see 8 Wigmore, Evidence 2252,

at 328-29 (McNaughton rev. ed. 1961); and the more modern

blurring of lines has left unclear whether the privilege can

ever be violated by such questioning where no incriminating

statement is thereafter used in a proceeding. See Wiley v.

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Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th

Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2

Even if the Fifth Amendment is put to one side, the

defendants do not suggest that Holland had any legal

obligation to answer questions about the robbery. Compare

Brown v. Texas, 443 U.S. 47, 52-53 (1979). While the police

did not purport to arrest Holland for refusing to cooperate,

the facts might permit a jury to think that this was their

underlying motivation. Yet assuming this premise, the

question remains whether such a motive for an arrest

otherwise justified by probable cause alters the message of

Whren.

In our view, it does not. The police, prosecutors, and

courts constantly make judgments--including decisions not to

prosecute or to permit or impose a reduced sentence--based on

an assessment of an individual's cooperation. The decision

to arrest, where probable cause exists, is a discretionary

one informed by many considerations. And any attempt to

untangle the ascribed motive from a skein of others, in

prompting an arrest justified by objective probable cause,

2Of course, Holland never asserted the privilege when
questioned, as is customarily required. The Supreme Court
has said that this requirement may not apply in police-
station questioning or like interrogation, Minnesota v.

Murphy, 465 U.S. 420, 429-30 (1984), but shortly thereafter

it ruled that one held briefly in a traffic stop was not "in
custody" for purposes of Miranda. Berkemer v. McCarty, 468

U.S. 420, 440 (1984).

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would invite exactly the inquiry into police motivation

condemned by Whren.

Actual motive sometimes does play a role in section 1983

actions. E.g., Waters v. Churchill, 511 U.S. 661 (1994)

(discharge in retaliation for exercise of First Amendment

rights). But in evaluating arrests, the Supreme Court has

given primacy to the Fourth Amendment's own objective

standards, even where other constitutional bases might be

invoked. Thus, the Court recently rejected an attempt to use

substantive due process as a more favorable framework for

assessing a claim, at least insofar as it was deemed one for

unlawful detention. Albright v. Oliver, 510 U.S. 266, 274-75

(1994).

This does not mean that probable cause forecloses every

possible challenge to an arrest. Whren itself strongly

implies that an equal protection challenge to an arrest,

despite probable cause existing, might yet be entertained,

although the court does not say what facts would be needed to

support such a challenge. 116 S. Ct. at 1774. An objective

showing that (for example) only blacks or Asians were ever

arrested for a specific, widely committed offense would pose

a different case than Whren. See Yick Wo v. Hopkins, 118

U.S. 356 (1886).

This brings us to Holland's final claim of ascribing an

illicit motive for the arrest. It is evident from Holland's

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deposition that he himself thinks (based on prior incidents)

that he was a target of general police harassment, resting in

part on the fact he is black. But the racial charge is

unsubstantiated by anything we can find in the record and is

not directly urged in Holland's appellate brief. We note it

only to stress that our decision does not reach the difficult

issues that might be raised by a substantiated charge of

racial discrimination. Compare United States v. Armstrong,

116 S. Ct. 1480, 1486-88 (1996).

Putting aside racial motives, we note that the district

court deemed the entire harassment charge unsupported and

declined to discuss it at length. On the other hand, if one

accepts Holland's deposition testimony, there were obviously

prior incidents and some ongoing tension between Holland and

the police. In addition, Holland's name had been circulated

within the police department, although that standing alone

would not be wrongful. See Paul v. Davis, 424 U.S. 693

(1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.

1995).

But even if assuming that a jury might think that

Holland had been harassed in the past, we do not see how a

reasonable jury could decide that this was the cause of his

arrest in this instance. Such a charge is contradicted by

Holland's own precise version of what the police said at the

arrest. That version indicates that the police officers'

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immediate reasons for the arrest were, at worst, a belief

that Holland was a suspect in the bank robbery, possibly

aggravated by his refusal to cooperate or disclose his

whereabouts at the time.

We must say in candor that Holland would have an uphill

road to climb even if he had plausibly claimed that some

general police animosity lay behind this arrest. Given

Whren, any plaintiff is going to have difficulty in using

subjective motive to attack an arrest which is otherwise

objectively justified by probable cause. But the variations

in facts, and certain extreme possibilities, caution against

deciding too much in the abstract.

3. The claim of municipal liability in this case

depended on Holland's claim that the officers violated

Holland's constitutional rights by arresting him as a part of

their campaign of harassment. Holland sought to implicate

the city, under Monell v. New York City Department of Social

Services, 436 U.S. 658, 694 (1978), by charging that the

harassment grew out of an officially established program of

targeting suspects, including the circulation of information

about them.

Whatever "custom or policy" the city may have

maintained toward individuals that the police deemed

suspicious, Holland cannot show that it was "the cause of,

and moving force behind," his arrest in this case. Foley v.

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City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991). Further, we

have concluded that the arrest was itself lawful because

probable cause existed and Holland has offered no supported

basis for overcoming Whren. Thus, the claim against the city

was properly dismissed.

Affirmed.

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