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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