Logue v. Dore

January 22, 1997
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1143

JAMES LOGUE, SR.,
Plaintiff, Appellant,

v.

RONALD DORE,
Defendant, Appellee.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on January 8, 1997, is
corrected as follows:

On page 10, line 19 change "U.S." to "F.2d"

On page 12, line 16 add a further sentence: "This case is

no exception."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1143

JAMES LOGUE, SR.,

Plaintiff, Appellant,

v.

RONALD DORE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya and Stahl, Circuit Judges,

and Woodlock,* District Judge.

William H. Rowerdink III for appellant.

Leonard H. Kesten, with whom Brody, Hardoon, Perkins &

Kesten was on brief, for appellee.

January 8, 1997

*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge. Asserting that the proceedings
SELYA, Circuit Judge.

below were tainted both by the district judge's mistaken view of

the law and by his personal animus, plaintiff-appellant James

Logue invites us to order a new trial before a different trier.

We decline the invitation.

I. BACKGROUND
I. BACKGROUND

Since one of Logue's principal complaints is that the

district court took his false arrest and false imprisonment

claims from the jury at the close of his case in chief, we assay

the facts in the perspective most advantageous to Logue's

position. See, e.g., Veranda Beach Club Ltd. Partnership v.

Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir. 1991).

In 1990, Logue and his wife became embroiled in divorce

proceedings. Despite this discord, the couple continued for a

time to share the marital domicile at 411 School St., Marshfield,

Massachusetts. The situation changed on November 13, 1992, when

Mrs. Logue secured an ex parte restraining order barring her

estranged husband from the School St. premises.1 Pursuant to

that order the Marshfield police asked Logue to remove himself

from the property, and he complied.

1Mrs. Logue obtained the restraining order under a state law
which provides that, in various situations (including matrimonial
disputes), a court "may enter such temporary orders as it deems
necessary to protect a plaintiff from abuse . . . ." Mass. Gen.
L. ch. 209A, 4 (West 1996). The statute further provides that
"[i]f the plaintiff demonstrates a substantial likelihood of
immediate danger of abuse, the court may enter such temporary
relief orders without notice . . . and shall immediately
thereafter notify the defendant that the temporary orders have
been issued." Id. In that event, "[n]otice shall be made by the

appropriate law enforcement agency." Id.

3

Three days later Logue prevailed upon the state court

to amend its November 13 order. The amendment gave Logue access

to the premises between the hours of 8:00 a.m. and 6:00 p.m. so

that he could continue to operate his painting business (which

was based in a garage on the property).

By its terms, the amended order expired on December 2,

1992. On that date, the state court convened a hearing to

determine inter alia whether the restraining order should remain

in effect, and if so, whether Logue should still be allowed

limited access to the marital premises. The parties and their

counsel appeared but, when the judge reserved decision, Logue and

his lawyer departed without awaiting the ruling. Late that same

morning the judge renewed the original restraining order, thereby

effectively rescinding Logue's daytime privileges and banning him

from the premises in toto.

Unaware that a completely prohibitory order had issued,

Logue repaired to School St. on December 2. His wife returned

that afternoon, told him of the judge's decision, and asked that

he leave. Logue continued working. Disquieted, Mrs. Logue

called the Marshfield police to report what she viewed as a

blatant violation of the new restraining order. Officer Ronald

Dore responded to the call. When Dore arrived, Mrs. Logue showed

him a copy of the current restraining order. By that time,

however, Logue had evacuated the premises.

After leaving the scene Logue contacted his attorney in

an effort to ascertain the terms of the new restrainer. He

4

received no definitive guidance. Instead, his lawyer instructed

him to stop by his office the next morning so that they could

straighten out the situation.

As a matter of form, a restraining order of this sort

is composed of a series of multicolored carbon copies to be

distributed to various parties. Typically, there is a copy for

the court's use, one for the probation department's use, one for

the plaintiff, one for the defendant, one for the local police

department, and a final copy on which the return of service is to

be inscribed. Early on the morning of December 3, Dore reviewed

the police copy of the newly minted restraining order. He then

proceeded on routine patrol. In the meantime Logue bypassed his

lawyer's office, returned to the marital residence, and resumed

work. Dore observed Logue's vehicle in the driveway, confronted

him in the garage, and turning a deaf ear to Logue's protest

that he had the right to be on the property during the day, and

that he could verify his status by a telephone call placed him

under arrest for violating the restraining order. Dore

transported Logue to police headquarters and booked him. Logue

was then taken to the state court and arraigned. Eventually, the

charges against him were dropped.

Logue mounted a counterattack, suing Dore for damages

under 42 U.S.C. 1983 in the federal district court. His

complaint contained three counts that are germane to this

5

appeal.2 In those counts Logue contended that Dore had falsely

arrested and imprisoned him, and had employed excessive force,

all in derogation of section 1983. During trial, the district

court directed a verdict in the defendant's favor on the false

arrest and false imprisonment counts. The jury subsequently

found for the defendant on the excessive force claim. Following

a peculiar colloquy related to fees and costs (described infra

Part IV), Logue filed this appeal.

II. THE DIRECTED VERDICT
II. THE DIRECTED VERDICT

Logue assigns error to the entry of judgment as a

matter of law on the false arrest and false imprisonment claims,

asserting that he adduced enough evidence to create a jury

question as to whether Dore had probable cause to arrest him.

The standard under which we review Logue's challenge is so

familiar that it verges on the banal: without taking into

consideration the credibility of witnesses, resolving conflicts

in testimony, or evaluating the weight of the evidence, could a

reasonable jury find for the plaintiff on the proof presented?

See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994).

We will affirm the judgment only if, after surveying the evidence

and the inferences derivable therefrom in the light most

flattering to the plaintiff, we determine that a rational

factfinder could have reached no conclusion except that the

2Originally, Logue asserted other claims against Dore,
various unnamed Marshfield police officers, and the Town of
Marshfield. Because the case proceeded to trial only on the
federal claims against Dore, we limit our discussion accordingly.

6

plaintiff take nothing. See Veranda Beach, 936 F.2d at 1375;

Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987).

In trying the false arrest and false imprisonment

counts, Logue's theory was that Dore violated his Fourth

Amendment rights by arresting him without probable cause.

According to Logue, there was no probable cause because Dore

lacked any reason to believe that Logue knew the terms of the

December 2 restraining order and intentionally violated it. The

lower court rejected this premise. So do we.

The constitutionality of a warrantless arrest "depends

. . . upon whether, at the moment the arrest was made, the

officer[] had probable cause to make it." Beck v. Ohio, 379 U.S.

89, 91 (1964). In turn, probable cause to make an arrest exists

if and only if the facts and circumstances of which the

arresting officer has knowledge are sufficient to lead an

ordinarily prudent officer to conclude that an offense has been,

is being, or is about to be committed, and that the putative

arrestee is involved in the crime's commission. See Rivera v.

Murphy, 979 F.2d 259, 263 (1st Cir. 1992); Hoffman v. Reali, 973

F.2d 980, 985 (1st Cir. 1992). In sum, the existence of probable

cause (and, in turn, the validity of an ensuing arrest) is gauged

by an objective standard; as long as the circumstances

surrounding the event warrant the officer's reasonable belief

that the action taken is appropriate, the arrest is justified.

See Scott v. United States, 436 U.S. 128, 137-38 (1978); United

States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987); see also

7

Whren v. United States, 116 S. Ct. 1769, 1774 (1996) (holding

that "[s]ubjective intentions play no role in ordinary, probable-

cause Fourth Amendment analysis"). And, moreover, though

probable cause requires more than mere suspicion, it does not

require the same quantum of proof as is needed to convict. See

United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988).

At first blush it appears that Dore surpassed this

minimum. After all, the evidence is straightforward that an

unqualified chapter 209A restraining order issued on December 2,

and that order, by its terms, barred Logue from the School St.

property. The record is equally pellucid that Dore learned the

terms of that order on two separate occasions before taking

action. Thus, Dore knew prior to arresting Logue that Logue's

mere presence on the School St. premises transgressed the

restraining order and thereby constituted a criminal act. In the

lower court's view, no more was exigible.

Logue seeks to blunt the force of this reasoning by

elevating the probable cause threshold. He would have us rule

that, in addition to the arresting officer's reasonable belief

that the restraining order was being violated, probable cause in

this case could only be established if the officer also believed

that the violator himself knew the terms of the order. But this

embellishment has no basis in the law. What the arrestee knows

or does not know at the time of his apprehension is irrelevant to

the question of whether the arresting officer has probable cause.

To be frank, we find it difficult to understand the

8

nexus that Logue strives to fashion between the arrestee's

knowledge and the probable cause determination. It seems most

likely that Logue has confused the elements necessary to

establish probable cause with the elements necessary to determine

guilt or innocence. The arrestee's knowledge is, of course,

relevant to the latter determination, for the Commonwealth, in

order to convict Logue of violating the chapter 209A restraining

order, would be required to show scienter, that is, to prove

beyond a reasonable doubt that he had knowledge or notice that

such an order had been issued against him. See Mass. Gen. L. ch.

209A, 7 (West 1996); Commonwealth v. Gordon, 553 N.E.2d 915,

918-19 & n.3 (Mass. 1990). Nevertheless, this requirement has no

bearing on the reasonableness of Dore's belief that a crime was

being committed (especially since he, himself, had told Logue

what the order provided), and it therefore fails to address the

existence vel non of probable cause.3

We will not paint the lily. In light of the facts and

circumstances unquestionably known to Dore at the time of the

arrest, no reasonable jury could find that he lacked probable

cause to take Logue into custody. It follows inexorably that the

3Logue implies that Dore's refusal to allow him to make a
telephone call to verify the terms of the December 2 order made
the arrest unreasonable. To be sure, there are circumstances in
which "an arresting officer may have a duty to pursue further
information if it is available and likely to be trustworthy."
Palhava de Varella-Cid v. Boston Five Cents Sav. Bank, 787 F.2d

676, 680 (1st Cir. 1986). In this situation, however, further
investigation merely would have buttressed the officer's belief
and confirmed Logue's violation of the chapter 209A restraining
order. Thus, Logue's argument is not advanced by Dore's rebuff.

9

district court appropriately granted judgment as a matter of law

in favor of the defendant on the false arrest and false

imprisonment counts.

III. THE JUDGE'S ATTITUDE
III. THE JUDGE'S ATTITUDE

Logue's next assignment of error sweeps more broadly.

He contends that the district judge's biased attitude and heavy-

handed manner deprived him of an impartial trial, and that

fundamental fairness demands that we wipe the slate clean. These

are serious charges, and we treat them as such.

We start with an overview of the settled legal

principles that pertain to claims of this genre. It is well-

established that a judge is not a mere umpire; he is "the

governor of the trial for the purpose of assuring its proper

conduct," and has a perfect right albeit a right that should be

exercised with care to participate actively in the trial

proper. Quercia v. United States, 289 U.S. 466, 469 (1933). It

is, moreover, beyond cavil that a trial judge in the federal

system retains the common law power to question witnesses and to

analyze, dissect, explain, summarize, and comment on the

evidence. See id.; see also United States v. Paiva, 892 F.2d

148, 159 (1st Cir. 1989); see generally Fed. R. Evid. 614(b).

Still, there are lines which a trial judge should not cross. For

example, the judge's participation must be balanced; he cannot

become an advocate or otherwise use his judicial powers to

advantage or disadvantage a party unfairly. See Quercia, 289

U.S. at 470; Paiva, 892 F.2d at 159; see also Fed. R. Evid.

10

614(b) advisory committee's note.

An inquiry into the judge's conduct of the trial

necessarily turns on the question of whether the complaining

party can show serious prejudice. See Aggarwal v. Ponce Sch. of

Med., 837 F.2d 17, 22 (1st Cir. 1988). In answering this

question a reviewing court must evaluate the judge's actions

"according to a standard of fairness and impartiality,

recognizing that each case tends to be fact-specific." United

States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988) (citations

and internal quotation marks omitted). This process requires the

reviewing court to differentiate between expressions of

impatience, annoyance or ire, on the one hand, and bias or

partiality, on the other hand. See Liteky v. United States, 510

U.S. 540, 555-56 (1994). While the former are not to be

encouraged, the latter are flatly prohibited.

In this case, Logue contends that the judge's comments,

questioning of witnesses, and chastisement of his trial counsel

(Attorney Stockwell-Alpert) skewed the proceedings. Having

painstakingly reviewed the transcript of this five-day trial, we

are satisfied that the incidents of which Logue complains show

little more than the judge's efforts to clarify testimony,

expedite the trial, and maintain courtroom decorum. In short, we

find that Logue received a fair trial, albeit not a perfect or an

unblemished one. He was not entitled to more. See Polito, 856

U.S. at 418.

We see no need to cite book and verse in response to

11

each of Logue's criticisms. A summary should suffice.

1. Logue asserts that the judge exhibited bias both by
1.

interjecting hostile questions during his testimony and by

treating the defendant's testimony solicitously. However, a

close reading of the transcript reveals no such contrast. A

judge has wide discretion to interject questions in order to

throw light upon testimony or expedite the pace of a trial. See

Deary v. City of Gloucester, 9 F.3d 191, 194-95 (1st Cir. 1993);

United States v. Olmstead, 832 F.2d 642, 648 (1st Cir. 1987),

cert. denied, 486 U.S. 1009 (1988). Here, the judge's questions

strike us as designed to simplify the jury's task, and, in

respect to Logue's testimony, to clarify his frequently vague and

confusing answers. Many of the judge's queries did no more than

restate the examiner's questions, and his oft-uttered responses

(e.g., "all right" or "I see") to Logue's answers were well

within the realm of impartiality.

2. Logue's claim that the judge displayed bias against
2.

him rests heavily on two comments. First, the judge referred to

Logue in the jury's presence as "the accuser." We regard the

comment as innocuous, particularly when its likely impact is

evaluated on the entire record. This case is no exception. More

troubling is that, after Logue completed his testimony, the judge

excused the jury and made the following statement:

I just want to put it on the record that I totally
disbelieve the plaintiff in this case. I think he's an
absolute and incorrigible liar. And it's my intention
at the conclusion of this case to request the United
States Attorney to conduct an investigation into these
matters relative to seeking an indictment for perjury.

12

To be sure, it was unnecessary for the judge to go on

record at that stage, but his comments indicate no more than that

he had grave doubts anent Logue's credibility. Judges are not

expected to refrain from forming opinions about witnesses'

credibility how else would a judge be able to decide a case or

pass on a motion for a new trial? and the mere fact that the

judge voices his opinion out of the presence of the jury does not

irretrievably taint the trial. Cf. Liteky, 510 U.S. 550-51 ("The

judge who presides at a trial may, upon completion of the

evidence, be exceedingly ill disposed towards the defendant, who

has been shown to be a thoroughly reprehensible person. But the

judge is not thereby recusable for bias or prejudice, since his

knowledge and the opinion it produced were properly and

necessarily acquired in the course of the proceedings . . . .").

Since there is no evidence that the judge allowed his low opinion

of Logue's veracity to mar his conduct of the trial, we will not

disturb the judgment. Logue was entitled to an impartial judge;

he was not entitled to an ingenuous one.

3. Logue further contends that the judge's
3.

disparagement of Stockwell-Alpert deprived him of a fair trial.

As a general rule, a judge's mid-trial remarks critical of

counsel are insufficient to sustain a claim of judicial bias or

partiality against the client. See Liteky, 510 U.S. at 555.

Here, the challenged comments occurred at various

times, some at sidebar and some in the presence of the jury. The

comments at sidebar need not detain us; it suffices to say that

13

none were beyond the pale. In the most ill-advised such remark,

the judge referred to the lawyer as a "smart little guy." The

description would have been better left unsaid, but it scarcely

amounts to reversible error.

Statements that are made by a judge in the jury's

presence are, of course, subjected to stricter scrutiny. In this

case, the judge was sharply critical for example he made

remarks to the effect that Stockwell-Alpert was hurting himself

by making unnecessary comments after rulings, talking back to the

court, leading witnesses on direct examination, and hollering at

an adverse witness but the criticisms were largely invited by

counsel's antics and were fairly calculated to maintain courtroom

decorum.4 While the judge could perhaps have been more delicate

in his choice of phrase, appellate courts cannot expect that a

trial judge, under siege, will function as a bloodless automaton.

See Polito, 854 F.2d at 418. Granting the judge a "margin of

humanity," id., we do not think that his comments in this case

evinced bias. See Mitchell v. Kirk, 20 F.3d 936, 937-38 (8th

Cir. 1994); see also Liteky, 510 U.S. at 555-56 (explaining that

routine efforts at court administration by a judge do not evince

bias or partiality). In any event, gauging the likely impact of

the judge's statements on the record as a whole, we conclude that

4On one occasion, the judge imposed a monetary sanction on
Stockwell-Alpert for making a wholly gratuitous comment after the
judge had instructed the jury on a point of law. This comment
was preceded by several similar comments which could reasonably
be viewed as tending to disparage the judge and undermine his
authority. The sanction was imposed outside the jury's presence.

14

they did not compromise the fundamental fairness of the

proceedings. See Deary, 9 F.3d at 195-96.

We add a coda. In assessing the impact of a judge's

actions, jury instructions can be a means of allaying potential

prejudice. See id. at 196; Polito, 856 F.2d at 419. Here, the

judge told the jurors in his charge that he had not intended to

comment on the evidence or to suggest "what verdict I think you

should find." He also told them that, if they thought he had

commented, they should disregard the comments. Finally, he

warned the jurors "not [to] be swayed by bias or prejudice or

favor as to any party," and stressed their prerogatives as "the

sole and exclusive judges of the facts." These instructions were

sufficient to palliate any untoward effects.

IV. THE EVANESCENT FEE DISPUTE
IV. THE EVANESCENT FEE DISPUTE

After the jury returned its verdict, a curious episode

occurred. The judge made an extemporaneous (and extremely

unflattering) assessment of Logue's case,5 and spontaneously

directed Dore's counsel to "charge all expenses and reasonable

attorneys' fees to th[e] plaintiff." The judge then granted the

defendant's oral motion to attach the plaintiff's real estate in

the amount of $50,000 as security for those fees and expenses.6

5The judge volunteered his opinion that the case "was
bottomed on perjury" and that it represented "an attempt on the
part of this plaintiff . . . to perpetrate a fraud on the
system."

6Despite his scathing critique of Logue's case, the judge
never indicated the legal basis on which the anticipated shifting
of fees rested. In a "best case" scenario, this lack of
specificity creates potential problems for a reviewing court.

15

Dore recorded the attachment but never filed an application for

attorneys' fees.

Although the parties argue in their briefs about the

"fee award," it is apparent that none exists. The district

court's announcement of a willingness to tax fees and expenses

against a losing party does not constitute an award, and, in the

absence of an order or judgment susceptible of execution, the

court's free-floating announcement of its views provides no basis

for appellate intervention. After all, appellate courts review

orders and judgments, not judge's statements. See In re

Administrative Warrant, 585 F.2d 1152, 1153 (1st Cir. 1978).

Moreover, the defendant effectively waived the right to

attorneys' fees by his conceded failure to file and serve a

properly supported application within fourteen days of the entry

of judgment. See Fed. R. Civ. P. 54(d). Under the

circumstances, an attachment, designed to secure an anticipated

award of fees which was never reduced to judgment and for which

the prevailing party never applied, cannot stand.

In the interest of completeness, we note that, in

response to vigorous questioning on this point during oral

argument, defense counsel conceded the untenability of Dore's

See, e.g., Foster v. Mydas Assocs., Inc., 943 F.2d 139, 141-42

(1st Cir. 1991) (holding that a district court must, at a bare
minimum, identify the source of the presumed authority
undergirding a fee award, for "different sources of authority
impose varying criteria for judging the [award's]
appropriateness"). Here, however, the judge never made an actual
fee award, see infra, and we are thus spared the necessity for

grappling with these problems today.

16

position and agreed to move promptly to dissolve the attachment.

We have received a copy of a letter reporting that he has kept

his promise. Nothing remains of this issue.

V. CONCLUSION
V. CONCLUSION

We need go no further.7 The judgment in favor of the

defendant is not infected by reversible error. The district

court's impromptu direction for the shifting of fees is without

independent force as a judgment or order; and, because steps have

been taken to dissolve the ensuing attachment, the parties'

dispute over attorneys' fees presents no issue suitable for

appellate review.

The judgment is affirmed on the merits. Each party
The judgment is affirmed on the merits. Each party

shall bear his own costs.
shall bear his own costs.

7In his brief, Dore requests that we invoke Fed. R. App. P.
38 and impose sanctions on the plaintiff for prosecuting a
frivolous appeal. We are not inclined to do so. The plaintiff's
arguments concerning the conduct of the trial are colorable, even
though not persuasive, and his assignment of error vis- -vis the
improvidently issued attachment possesses obvious merit.

17