Tremblay v. McClellan

United States Court of Appeals
For the First Circuit

No. 03-1641

JASON A. TREMBLAY and RICHARD TREMBLAY,

Plaintiffs, Appellees,

v.

WILLIAM E. MCCLELLAN, Individually and Officially as a Corporal
with the Conway Police Department,

Defendant, Appellant,

DAVID BENNETT, CONWAY POLICE DEPARTMENT, TOWN OF CONWAY,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Donald E. Gardner, with whom Michael A. Ricker and Devine,
Millimet & Branch were on brief, for appellant.
Leslie C. Nixon, with whom Nixon, Raiche, Manning, Casinghino
& Leach was on brief, for appellees.

November 20, 2003
 LYNCH, Circuit Judge. Jason Tremblay, age sixteen at the

time of the underlying events in this case, and his father, Richard

Tremblay, sued the Town of Conway, New Hampshire, its police

department, and Captain William McClellan. The suit asserted

violations of Jason's constitutional rights and pendent state law

claims arising out of his temporary detention under New Hampshire's

protective custody statutes.

That detention occurred when Jason and a friend were

picked up by Officer McClellan during the early morning hours of

September 12, 1999, while walking along a major road just after

2:00 a.m. smelling of alcohol; the police had been called earlier

that Saturday night to break up a nearby underage drinking party.

Jason and his friend were taken to the police station, and, a short

time later, Jason was brought home. He then took a family car

without permission, picked up two friends, and drove to Maine. The

trip ended tragically: at approximately 5:00 a.m., Jason, driving

at a high speed, lost control of the car and crashed into a tree.

Jason's spine was injured, paralyzing him and leaving him

permanently disabled.

The suit claimed that the police, by having picked up

Jason and then releasing him, were responsible for Jason's

injuries. The defendants moved for summary judgment on various

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grounds. They argued, inter alia, that Officer McClellan1 was

protected by qualified immunity, that there were no constitutional

violations or tortious acts, and that there was no basis to hold

the town liable. The magistrate judge, sitting by consent, granted

summary judgment for the defendants on several state law claims,

but denied it as to the federal civil rights claims and the state

law claims of negligence and false imprisonment. Officer McClellan

appeals the magistrate judge's denial of summary judgment on his

qualified immunity defense. We reverse and direct entry of

judgment in favor of Officer McClellan.

I.

On summary judgment, we review the testimony in the light

most favorable to the plaintiffs.

Officer McClellan gave the following account in his

deposition. At around 11:00 p.m. on the evening of September 11,

1999, Officer McClellan and several other policemen broke up a

party in Conway at which numerous underage individuals were

consuming alcohol. They detained so many teenagers that a school

bus was needed to transport them to the police station. While the

officers were in the process of rounding up the partygoers, several

juveniles ran away, crossing through a nearby river. The police

1
Originally, Lieutenant David Bennett was also sued, but the
parties stipulated to his dismissal as a defendant.

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were, as a result, looking for teenagers with wet clothes who had

been at the party.

McClellan was returning to the police station after

taking home a juvenile girl who had been detained at the party when

he spotted two other minors walking along East Main Street in

Conway, which is Route 302, a federal highway. These teenagers,

who turned out to be Jason Tremblay and Dale Bell, were

approximately three miles away from the site of the earlier party.

Officer McClellan had previously arrested Dale three different

times, twice for the possession of alcohol. When McClellan slowed

down his police car to get a closer look, he observed that Dale was

wearing pants that were wet halfway up his calf. His shoes were

also wet. Suspecting that these two teenagers were among those who

had run through the river after the earlier party, Officer

McClellan stopped his car to speak with them. As he approached

them, he detected an odor of alcohol "amongst them" and noticed

that Dale's eyes were blood-shot and glassy. He asked the boys

whether they had attended the party and whether they had drunk any

alcohol that evening.

Officer McClellan said that both teenagers denied either

going to the party or drinking alcohol that night. McClellan

believed that Dale was lying, but was not sure about Jason, who

showed no outward signs of intoxication and whose pants did not

appear wet. He told both minors to get into the backseat of the

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police car. He then called in to the police station and reported

that he had picked up two boys and that "One is 10-59." The

evidence was that this was a code for either drinking or

intoxication.2 Neither Dale nor Jason had any alcohol on him at

the time.

When asked what danger to the boys justified picking them

up, McClellan stated: "Late at night, walking along the side of the

road having consumed alcohol, [they] could get hit by a car. Lots

of things happen at nighttime."

It is what Officer McClellan knew at the time of the

detention that is important for the detention claim. We describe

the later events because they are relevant to the negligent release

claims and for their corroborative effect on his testimony as to

both claims. As Officer McClellan began to drive away with Jason

and Dale, two other teenagers, Michael Palughi and an unidentified

girl, approached the police car on bicycles. They claimed that

they had spent the evening with Jason and Dale and that the four of

them had neither been to the party nor consumed alcohol that night.

Given the evidence of alcohol consumption, Officer McClellan

believed that they were trying to cover for their friends Dale and

2
At oral argument, counsel for the plaintiffs argued that
Officer McClellan's report that Dale was "10-59" supported the
inference that Dale was drinking, but not intoxicated. If Dale
were really intoxicated, counsel argued, then Officer McClellan
would have specifically noted that fact. The code used encompassed
both drinking and intoxication.

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Jason, and he continued toward the police station. During the ride

Dale was belligerent and kept insisting that the two of them had

not been drinking that evening and that Officer McClellan should

have also arrested Michael and the girl.

Officer McClellan arrived at the police station with the

two boys at 2:04 a.m. He entered their two names in the juvenile

detention log with the notation "PC," for protective custody,3 and

again asked the two whether they had been drinking alcohol that

evening. Jason continued to deny having consumed any alcohol.

Officer McClellan then asked another officer, who was walking

through the booking room, whether she could smell any alcohol on

either of the minors. That officer said that she did smell

alcohol on Dale. She also said that she did not smell any alcohol

on Jason, but that the whole room smelled of alcohol. At this

point, Officer McClellan determined that he did not have sufficient

evidence that Jason had been drinking to keep him, although the

officer still smelled alcohol on them.

3
The applicable New Hampshire statute provides that:
Nothing in this chapter shall be construed as
forbidding any police officer from immediately
taking into custody any minor who is found
violating any law, or whose arrest would be
permissible under RSA 594:10, or who is reasonably
believed to be a fugitive from justice, or whose
circumstances are such as to endanger such minor's
person or welfare, unless immediate action is
taken.
N.H. Rev. Stat. Ann. § 169-B:9. In addition to § 169-B:9, the
defendants rely on §§ 169-C:6 and 169-D:8. Analysis of § 169-B:9
suffices.

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 Jason had told Officer McClellan that his parents were

not at home and that he wanted to go home with Dale. Jason also

said he did not know how to reach them. Officer McClellan called

Dale's mother to come pick up her son. He also told her, either

over the phone or at the station, that he had taken Jason into

custody because he suspected that Jason had been drinking. He

asked if she would take Jason as well, but she declined to take

responsibility for Jason. Her testimony confirms this. On Jason's

suggestion, Officer McClellan also contacted the mother of Michael

Palughi, with whom Jason had planned to spend the night. But after

hearing the circumstances under which Jason was at the police

station, she too refused to take custody of him. Her testimony

confirms this. Having been unable to locate an adult who would

take Jason, Officer McClellan drove Jason home at 3:01 a.m. and

extracted a promise from him that he would stay home until he heard

from his parents.

All of the material elements of Officer McClellan's

account are consistent with the deposition testimony of the others

involved. Jason testified that he and Dale had indeed drunk Kahlua

that evening, accounting for the odor that Officer McClellan

reported. Jason confirmed that he and Dale had been walking along

East Maine Street at around 2:00 a.m. when Officer McClellan

stopped them and that the bottoms of Dale's pants had been wet.

According to Jason, the first thing that Officer McClellan said as

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he approached the boys was that "I can smell alcohol on you all the

way over here." Like Officer McClellan, Jason reported that a

third officer at the police station determined that Dale smelled of

alcohol and Jason did not. And Jason admitted that when Officer

McClellan asked him where his parents were, he told him that they

"were in Maine somewhere" and lied in stating that he did not know

how to reach them. In addition, Jason reported that Officer

McClellan asked both Dale's mother and Michael's mother if they

would take responsibility for him.

Officer McClellan's testimony was also consistent, in all

material respects, with the deposition testimony of Dale Bell.

Dale testified that he drank most of a bottle of Kahlua that night,

and that Jason also drank "a swig" of Kahlua. Dale also confirmed

that Officer McClellan told both juveniles that they smelled of

alcohol and asked them whether they had attended an earlier party

because the bottom of Dale's pants were wet. Once at the police

station, according to Dale, Jason told McClellan that his parents

were out of town and Dale's mother refused to take Jason.

The deposition testimony of Dale's mother, Patricia Bell,

and Michael's mother, Gail Palughi, provides further confirmation

of Officer McClellan's story. Patricia Bell explained that Officer

McClellan had called her late at night and told her that she needed

to pick up Dale from the police station. When she arrived, Officer

McClellan said that he believed Dale had attended an earlier

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drinking party and had run away when the police took the partygoers

into custody. He also told her that he believed that Dale had been

drinking that night. Patricia Bell further testified that Officer

McClellan asked her if she would take Jason home with her because

the police were unable to locate his parents and that she declined

this request.

Gail Palughi also testified that she received a late-

night call from Officer McClellan in which he asked her whether she

would be willing to take responsibility for Jason. Officer

McClellan explained to her that Jason was at the police station and

had been picked up because he smelled of alcohol. He also told her

that her son Michael had been present when he had picked up Jason,

but that he hadn't taken Michael into custody. Although she had

earlier told Michael that Jason could stay over, Gail Palughi

testified that she did not want to take responsibility for Jason

under these circumstances.

Jason and his father brought suit against Officer

McClellan under 42 U.S.C. § 1983, alleging that McClellan violated

his First, Fourth, and Fourteenth Amendment rights when he took him

into custody and then released him. He also sued the Town of

Conway for allegedly promulgating a policy of "rounding up"

juveniles based on their mere proximity to alcoholic beverages. In

addition, Tremblay asserted several pendent tort claims against

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Officer McClellan, including a negligence claim for releasing

Tremblay without adult supervision.

The magistrate judge denied Officer McClellan's motion

for summary judgment on his qualified immunity defense to the §

1983 claim.

II.

A. Appellate Jurisdiction

The parties agree that we have interlocutory appellate

jurisdiction over the denial of the qualified immunity defense.

Such jurisdiction ordinarily exists unless there are controlling

issues of fact that must be resolved at the trial court level. See

Behrens v. Pelletier, 516 U.S. 299, 305-07 (1996).

On the record, it is clear to us that no material facts

are in dispute. It appears that the magistrate judge decided the

merits of the immunity question against McClellan when he concluded

"[t]here are no facts in the record that demonstrate that McClellan

reasonably believed that Jason was in imminent danger when

McClellan took Jason into custody." Of course, Officer McClellan's

subjective intent is irrelevant. The test for qualified immunity

in this context is an objective one. See Crawford-El v. Britton,

523 U.S. 574, 587-88 (1998); Stoutt v. Banco Popular de P.R., 320

F.3d 26, 31-32 (1st Cir. 2003).

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B. Qualified Immunity Under § 1983

Our review of the district court's denial of summary

judgment on qualified immunity grounds is de novo. Valente v.

Wallace, 332 F.3d 30, 32 (1st Cir. 2003).

The Supreme Court has encouraged lower courts generally

to address first the question whether at some abstract level the

plaintiffs have asserted a violation of constitutional rights,

second whether those rights are clearly established, and third

whether a reasonable officer could have concluded that his actions

did not violate plaintiffs' constitutional rights. See Saucier v.

Katz, 533 U.S. 194, 201-02 (2001). That encouragement has led this

court to describe the qualified immunity test as having three

parts, see Suboh v. Dist. Attorney's Office of Suffolk Dist., 298

F.3d 81, 90 (1st Cir. 2002), though sometimes we have described it

as a two-part test, see Santana v. Calderon, 342 F.3d 18, 23 (1st

Cir. 2003).

The reason given for first addressing the alleged

constitutional violation is that doing so assists in the

development of the law on what constitutes meritorious

constitutional claims. See Saucier, 533 U.S. at 201. In many

cases that approach is useful, especially where some novel theory

is advanced. The utility of this approach, however, depends on the

level of generality that is permitted in stating the constitutional

right at stake. Here, for example, if the question asked is framed

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at the abstract level of whether a police officer may detain a

person without any cause, then the plaintiffs have stated a claim

under the Fourth Amendment. But saying that does not clarify the

law; it just crosses oft-tread ground.

Alternatively, the question could be framed as whether it

is unconstitutional for a police officer, acting under a state

protective custody statute, to detain a juvenile reasonably

suspected to have been drinking and walking along a highway at two

in the morning with an intoxicated juvenile companion. This court

has recognized that a state may temporarily separate a child from

his or her parents, with additional due process protections to

follow, on reasonable suspicion that the child is in imminent

peril, for example, from child abuse. Suboh, 298 F.3d at 92; Hatch

v. Dep't for Children, Youth & their Families, 274 F.3d 12, 21 (1st

Cir. 2001). In Hatch, this court rejected the argument that

something fairly close to probable cause was the constitutionally

required standard. See 274 F.3d at 21. Here, the juveniles were

not even separated from their parents, only from a darkened highway

at 2 a.m., and were released almost immediately.

This analysis supports the constitutionality of a statute

authorizing the temporary protective detention of a child when

there is reasonable suspicion to believe that he or she is in

immediate danger. But it does not resolve whether the detention of

Jason was authorized under New Hampshire law: while there is in our

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view no federal constitutional bar to protective custody of a

juvenile based on reasonable suspicion of immediate danger to the

juvenile, the detention could still be unlawful, but not

necessarily unconstitutional, if New Hampshire law required a

higher level of suspicion. New Hampshire has not defined what

quantum of suspicion or cause is needed to detain a juvenile under

its protective custody statute.4

Although Saucier can be read as encouraging federal

courts to decide unclear legal questions in order to clarify the

law for the future, it surely did not mean to require federal

courts to define and clarify unclear state statutes when this is

wholly unnecessary to decide the case at hand. The plaintiffs are

not contending that the U.S. Constitution compels New Hampshire to

adopt a standard more stringent than reasonable suspicion for

protective custody. In fact, the parties agree, as do we, that the

ultimate question resolves into whether New Hampshire law

authorized the officer's action based on a reasonable concern that

Jason's welfare was endangered.

Even were a reasonable suspicion constitutional standard

clearly established in 1999 for these circumstances, the question

would be whether an objectively reasonable officer in Officer

4
The New Hampshire statute makes clear that endangerment of a
minor's welfare is a basis for custody but the language of the
statute is silent as to the level of likelihood required under this
prong.

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McClellan's position could have understood that his actions did not

violate the Fourth Amendment. This question could be considered to

merge the second and third prongs of the immunity analysis. See

Tower v. Leslie-Brown, 326 F.3d 290, 296 (1st Cir. 2003). On the

undisputed facts, there is no doubt that a reasonable officer could

have understood that his actions were authorized by the statute and

constitutional.

An objectively reasonable officer in Officer McClellan's

position could have believed that New Hampshire law required no

more than reasonable suspicion of immediate endangerment for

protective custody of a juvenile and could have had reasonable

suspicion that Jason fit within the statutory requirements -- that

is, that the circumstances were such that Jason's "person or

welfare" was endangered. It is undisputed that when Officer

McClellan encountered the two sixteen-year-olds, Jason's companion,

Dale, appeared visibly intoxicated. Dale's eyes were glassy and

bloodshot, he smelled of alcohol, and he had wet pant legs and

shoes, indicia of the earlier drinking party. Dale had drinking

problems in the past that were known to McClellan. There was also

a reasonable basis to suspect that Jason had been drinking. The

odor of alcohol came from "amongst" them. Jason was with Dale;

making reasonable a suspicion that Jason had also been drinking and

had attended the party along with Dale. It would be reasonable to

suppose that the two of them would not have been walking along the

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same road at two in the morning, one having been drinking and the

other not.

The two were walking along a federal highway in the

middle of the night; an objectively reasonable officer could have

been concerned that juveniles under the influence of alcohol run a

risk of being hit by a car. And a reasonable officer, with some

basis to suspect that Jason had been drinking, could have been

concerned that taking only Dale into custody and leaving Jason

alone on the highway, not knowing where he would go, could endanger

him.5 Under the circumstances here, a reasonable officer could

have believed that he or she was authorized to take Jason into

protective custody and then to release him to his home.

III.

The magistrate judge's denial of qualified immunity for

Officer McClellan is reversed; the case is remanded to the district

court judge with instructions to grant Officer McClellan's motion

for summary judgment on qualified immunity and for further

proceedings consistent with this opinion. No costs are awarded.

5
Indeed, had the officer found that the two were illegally
transporting alcoholic beverages, he would have been required to
arrest them and could be liable in tort if he did not. Weldy v.
Kingston, 128 N.H. 325, 331 (1986).

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