Flowers v. Fiore

United States Court of Appeals
For the First Circuit

No. 03-1170
No. 03-1533

BERNARD FLOWERS,

Plaintiff, Appellant,

v.

OFFICER DARREN FIORE, OFFICER LAWRENCE SILVESTRI, OFFICER MICHAEL
GARAFOLA, and THE TOWN OF WESTERLY, RHODE ISLAND,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

(Hon. Ernest C. Torres, U.S. District Judge)

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.

Thomas G. Briody for appellant.
Michael J. Colucci, with whom Olenn & Penza LLP was on brief
for appellees.

February 25, 2004
 STAHL, Senior Circuit Judge. Plaintiff-appellant Bernard

Flowers appeals from the district court's grant of summary judgment

in favor of defendant-appellees Darren Fiore, Michael Garafola,

Lawrence Silvestri, and the Town of Westerly, Rhode Island

("Town"). Flowers' suit asserted violations of his constitutional

rights under the Fourth and Fourteenth Amendments as well as

pendent state law claims arising out of his stop and detention by

members of the Westerly Police Department.

I. BACKGROUND

We draw the following recitation of facts from the

summary judgment record, which includes Flowers' complaint,

affidavits submitted by the defendant police officers, logs of

radio transmissions and telephone calls related to the incident,

and a complaint submitted by Flowers to the ACLU. We note where

facts are in dispute.

On September 24, 2001, at approximately 11:55 a.m., the

Westerly Police received a telephone call from Nunzio Gaccione, a

Westerly resident. Gaccione "guess[ed] there was a little fight

there with Butch Corbin and a couple other people" and that he

"just got word that Corbin is sending two colored people over here

to start some trouble." The dispatcher then radioed for Officer

Fiore to respond to the complaint at Gaccione's residence on

Ashaway Road. Fiore arrived at the residence within four to five

minutes and met with Gaccione. Gaccione related that he received

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a call from Maurice O'Rourke, who stated that another individual,

Michael Corbin, was sending two African-American men to Gaccione's

home with a gun. Gaccione said that he believed this was because

his grandson, Jason Bolduc, "works with a guy that Corbin knows and

they had some type of falling out." Fiore claims to be familiar

with Corbin and Bolduc, as both in the past have been involved in

several disturbances and possible drug activity.

Gaccione then told Fiore that he had seen two African-

American men in a small gray or black vehicle drive by his home

about five minutes prior to Fiore's arrival. Gaccione believed

that these men may have been the ones to whom O'Rourke referred.

At 12:12 p.m., Fiore detailed Gaccione's complaint,

including the description of the suspects, into his log. Fiore

alerted on his radio that police should be looking for a small gray

or black vehicle with two black men, possibly armed. He further

stated that he was "not too sure what it is" and that "they made

threats over here at the Gaccione complex."

Next, Fiore took a post at the intersection of Route 3

and Danielle Drive, which is about half a mile east of the Gaccione

residence along Route 3. He chose this particular location upon a

belief that the suspect vehicle would return to the Gaccione

residence after having passed by the Gaccione residence the first

time. Some twenty to thirty minutes later, Fiore noticed a small

gray car moving through the intersection of Route 3 and Danielle

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Drive. Fiore thought that about twenty minutes had elapsed since

he took his position on Route 3. He conceded, however, that the

time interval may have been as long as thirty minutes, as radio

logs indicated. He "caught a side view of [the occupant of the

car] and saw that it was a black male." Prior to observing this

particular vehicle, Fiore did not notice any other cars with

African-American male occupants drive by his post.

Fiore decided to follow this vehicle because "it fit the

description of the Gaccione complaint and it was heading in the

direction of the Gaccione residence."1 Although he noticed only

one occupant, he believed that the other suspect either could have

been dropped off at another location or was hiding in the vehicle.

At 12:42 p.m., Fiore notified dispatchers that he was following a

1
The district court recounted that "Fiore followed [Flowers']
vehicle and used his onboard computer to perform a registration
check" and that "[t]he information received by Fiore was that the
license plate on Flowers' vehicle had been issued to a vehicle
different from the one that Flowers was driving." Flowers v.
Fiore, 239 F. Supp.2d 173, 176 (D. Mass. 2003). The court
continued, "Accordingly, Fiore radioed for help and signaled
Flowers to pull over." Id. The record contains inconsistent
statements by Fiore, however, as to when he conducted the check,
whether it was before he pulled Flowers over or after Flowers had
been released. Fiore's police report, written just after the
incident, indicates that he "noticed a problem with Flowers'
license plate after clearing the stop." In his affidavit, Fiore
stated that before he pulled over Flowers, he "noticed really
quick" that the plates did not match the vehicle. He attempted to
reconcile his statement with the police report by suggesting that
he "should have put 'remembered' in place of 'noticed'" in the
police report because he "had noticed [the discrepancy] on the
computer screen prior to the stop." Fiore now claims that the
license plate discrepancy played no role in his decision to follow
and stop the vehicle.

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vehicle on Route 3. He based his "probable cause" to stop the

vehicle on his belief that "the description of the vehicle fit the

description by Mr. Gaccione, there was a black male that was

operating the vehicle . . . the close proximity of the time of the

call and the fact that it was heading toward Mr. Gaccione's

residence."

After following the vehicle approximately one mile, Fiore

activated his lights and signaled for Flowers to pull over. Both

eventually stopped on High Street, approximately half a mile west

of the Gaccione residence along Route 3. Fiore assumed that

dispatch would send backup "because of the situation," and

accordingly pulled Flowers over to a location near where he "knew

backup was coming from a car stop." He instructed Flowers over the

loudspeaker to remain in the vehicle. Next, two backup officers,

Lawrence Silvestri and Michael Garafola, arrived in separate police

cruisers. Garafola left his vehicle with a shotgun ready in hand.

Fiore, again using the loudspeaker, directed Flowers to extend his

arms out the window and then open the car door and exit the

vehicle. Flowers complied. Fiore then directed Flowers to turn

around with his hands in the air and walk backwards towards the

officers. From the time they arrived and exited their vehicles,

each officer had his weapon drawn.

Flowers contends that when he reached the officers, his

"hands were forced behind [him], handcuffs were placed [on him] and

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[he] was dropped to [his knees]." Fiore claims that the officers

directed Flowers to kneel on the road beside his car and lace his

fingers behind his head, and that then Flowers was handcuffed,

frisked, and placed in the back of Fiore's cruiser. All three

officers also claim that they followed standard procedure for a

high-risk (or felony) stop and that it was necessary to do so

because they felt that there was a danger to their safety.2

While Flowers was in the back of the police cruiser, the

backup officers searched Flowers' vehicle for weapons and a

possible other suspect. Fiore claims that when nothing was

recovered, he took Flowers out of the cruiser, removed his

handcuffs, and explained why he was stopped. Flowers claims that

Fiore first approached him and said, "Mr. Gaccione reported two

black men threatened him and they had guns so you understand why I

had to do what I had to do." Fiore then added that the two black

men had a gray vehicle. With no apology, Flowers was ordered back

to his car.

Fiore contends that he explained the situation to

Flowers, at which time Flowers became very angry and accused him of

2
In his January 17, 2002 affidavit, Officer Fiore described a
high risk motor vehicle stop as "a motor vehicle stop when there is
a possibility of danger to the officer stopping the vehicle." In
his March 12, 2002 affidavit, Officer Silvestri stated that upon
his arrival at the scene, the officers decided to employ felony car
stop tactics. He defined "felony car stop" to be the following:
"Weapons drawn, have him walk to us, secure him, and then clear the
car." Both affidavits are in the record on summary judgment.

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racial profiling. Flowers then asked Fiore to use his phone so he

could call his wife (who was working nearby and awaiting his

arrival). Fiore responded that he did not have a phone. He

suggested that Flowers use the phone at the gym across the street

and then ordered Flowers to move his car. Flowers then went back

to his car and drove to the local hospital, where his wife worked.

By this time, both backup officers had driven away.

Fiore proceeded to make "a couple passes by the Gaccione residence"

until the end of his shift. Thereafter, he did not re-take a post

to look for a suspect vehicle "because of the time that had gone

by" and his belief that "the immediate threat had pretty much

diminished."

Pursuant to 42 U.S.C. § 1983, Flowers brought this action

against Officers Fiore, Silvestri, and Garafola, and the Town of

Westerly, claiming (1) that the police officers detained him

because of his race, in violation of the Equal Protection Clause of

the Fourteenth Amendment, U.S. Const. amend. XIV, § 1; and (2)

that the officers detained him without probable cause and used

excessive force, and that the Town failed to properly train and

supervise the officers, in violation of his right against

unreasonable government search and seizure under the Fourth and

Fourteenth Amendments of the federal Constitution. Flowers also

asserted state law claims for assault and battery, false

imprisonment, and intentional infliction of emotional distress, as

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well as for violations of his rights under Article 1, sections 2

and 6 of the Rhode Island Constitution. After the close of

discovery, defendants moved for summary judgment, arguing that

there were no constitutional violations, and that they were

shielded from liability by the doctrine of qualified immunity.

Upon determining that no constitutional rights had been violated,

the court did not reach the issue of qualified immunity and granted

summary judgment in favor of the defendants.3 This appeal

followed.

II. DISCUSSION

We review a grant of summary judgment de novo. Singh v.

Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 31 (1st Cir.

2002). Only where there is no genuine issue of material fact will

the moving party be entitled to summary judgment. Fed. R. Civ. P.

56(c). A genuine issue of material fact is one that "properly can

be resolved only by a finder of fact because [it] may reasonably be

resolved in favor of either party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986). A fact is "material" if it "might

affect the outcome of the suit" under the applicable legal

standard. Id. at 248. In deciding whether a genuine issue of

3
In an exercise of its discretion not to retain supplemental
jurisdiction over remaining pendent state law claims, the district
court declined to address the summary judgment motion with respect
to Flowers' state law claims and dismissed them without prejudice.
See 28 U.S.C. § 1367(c). See also United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966); Rodriguez v. Doral Mortgage Corp.,
57 F.3d 1168, 1177 (1st Cir. 1995).

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material fact exists, we view the evidence in the light most

favorable to the nonmovant and draw all reasonable inferences in

that party's favor. See Carroll v. Xerox Corp., 294 F.3d 231, 237

(1st Cir. 2002); United States v. One Parcel of Real Property, 960

F.2d 200, 204 (1st Cir. 1992).

A. The Stop and Detention

For purposes of determining whether the stop and

detention were constitutionally permissible, we must first decide

whether the officers' actions amounted to an investigatory stop or

was so intrusive as to constitute a de facto arrest. The detention

of a person whose automobile has been stopped is a "seizure" within

the Fourth Amendment's prohibition against "unreasonable searches

and seizures." Whren v. United States, 517 U.S. 806, 809-10

(1996). A brief investigatory detention does not violate the

Fourth Amendment if the officers have a "reasonable and articulable

suspicion" of past or present criminal activity. United States v.

McCarthy, 77 F.3d 522, 529 (1st Cir. 1996). It was in Terry v.

Ohio, 392 U.S. 1 (1968) where the Supreme Court first gave effect

to this notion that some types of encounters between citizens and

law enforcement -- such as brief detainments in the nature of a

"stop and frisk" -- could constitute "seizures" for Fourth

Amendment purposes, yet be sufficiently limited in their

intrusiveness to fall outside the traditional understanding of an

"arrest." See also Dunaway v. New York, 442 U.S. 200, 208-09

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(1979). Where police actions taken during the detention exceed

what is necessary to dispel the suspicion that justified the stop,

the detention may amount to an "arrest" and is lawful only if it is

supported by probable cause. United States v. Quinn, 815 F.2d 153,

156 (1st Cir. 1987).

The Supreme Court has stated that "the exception for

limited intrusions that may be justified by special law enforcement

interests is not confined to the momentary, on-the-street detention

accompanied by a frisk for weapons involved in Terry and Adams [v.

Williams, 407 U.S. 143 (1972)]." Michigan v. Summers, 452 U.S.

692, 700 (1981). Since Terry, the Terry exception allowing

detentions without probable cause has been broadened to encompass

other situations where officers may make brief investigative stops

and detain individuals upon reasonable suspicion that they may have

committed, are committing, or are about to commit a crime. There

is no "'litmus-paper test'" to determine whether a particular

detention goes beyond a Terry stop and amounts to a de facto

arrest. United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir.

1998) (quoting Florida v. Royer, 460 U.S. 491, 506 (1983)).

Generally, we say that an investigatory stop constitutes a de facto

arrest "when a 'reasonable man in the suspect's position would have

understood his situation,' in the circumstances then obtaining, to

be tantamount to being under arrest." United States v. Zapata, 18

F.3d 971, 975 (1st Cir. 1994) (quoting Berkemer v. McCarty, 468

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U.S. 420, 441 (1984)). However, in a borderline case where the

detention at issue has one or two arrest-like features but

otherwise is consistent with a Terry stop, it will not be obvious

just how the detention at issue ought reasonably to have been

perceived. Such a case requires a fact-specific inquiry into

whether the measures used by the police were reasonable in light of

the circumstances that prompted the stop or that developed during

the course of the stop. See United States v. Young, 105 F.3d 1, 8

(1st Cir. 1997) ("our cases in this area evince the fact specific

nature of the inquiry"). In the present case, we conclude that the

actions of the police during the stop and detention did not go

beyond an investigatory Terry stop and did not amount to an arrest.

While Terry stops generally are fairly unintrusive, we

have repeatedly stressed that officers may take necessary steps to

protect themselves if the circumstances reasonably warrant such

measures. See United States v. Lee, 317 F.3d 26, 31-32 (1st Cir.

2003); Acosta-Colon, 157 F.3d at 18; United States v. Trullo, 809

F.2d 108, 113 (1st Cir. 1987). Similarly, other circuits have held

that police officers may draw their weapons without transforming an

otherwise valid Terry stop into an arrest. See, e.g., United

States v. Alvarez, 899 F.2d 833, 838 (9th Cir. 1990), cert. denied,

498 U.S. 1024 (1991); United States v. Taylor, 857 F.2d 210, 214

(4th Cir. 1988); United States v. Serna-Barreto, 842 F.2d 965, 968

(7th Cir. 1988); United States v. Jones, 759 F.2d 633, 638 (8th

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Cir.), cert. denied, 474 U.S. 837 (1985); United States v. Jackson,

652 F.2d 244, 249 (2d Cir. 1981). Here, the officers drew their

firearms because they were faced with a report of an armed threat.

Moreover, upon restraining Flowers, they immediately holstered

their weapons. It was not unreasonable under the circumstances for

the officers to execute the Terry stop with their weapons drawn.

As for the officers' use of handcuffs during the stop, we

in the past have required the government to point to "some specific

fact or circumstance that could have supported a reasonable belief

that the use of such restraints was necessary to carry out the

legitimate purposes of the stop without exposing law enforcement

officers, the public, or the suspect himself to an undue risk of

harm." Acosta-Colon, 157 F.3d at 18-19. Where, as here, police

officers have information that a suspect is currently armed and

that a crime involving violence may soon occur, they are justified

in using restraints such as handcuffs without causing an

investigatory stop to cross over into an arrest. See Washington v.

Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996).

The reasonable use of backup officers is also within the

bounds of a Terry stop. "[M]ere numbers do not automatically

convert a lawful Terry stop into something more forbidding."

Zapata, 18 F.3d at 976. We have previously refused to hold that

an investigative stop turned into a de facto arrest where five law

enforcement officers were present at the scene of the stop. United

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States v. Trueber, 238 F.3d 79, 94 (1st Cir. 2001). Here, Flowers

was stopped and detained by only three officers, only one of whom

--Fiore-- was in direct proximity to him while he was detained in

the police cruiser. Likewise, the fact that Flowers was placed in

the back of a police cruiser does not elevate the detention beyond

a Terry stop. See Haynie v. County of Los Angeles, 339 F.3d 1071,

1077 (9th Cir. 2003); United States v. Critton, 43 F.3d 1089, 1092-

94 (6th Cir. 1995). Although there may be cases where individually

reasonable police actions taken together go beyond the bounds of a

Terry stop, such is not the case here where the circumstances

justified the officers' overall handling of the situation.

As for the duration of the stop, we must examine whether

the police "diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly, during which

time it was necessary to detain the defendant." United States v.

Sharpe, 470 U.S. 675, 686 (1985); see also Royer, 460 U.S. at 500;

Summers, 452 U.S. at 701 n.14. There is "no hard-and-fast time

limit for a permissible Terry stop." Sharpe, 470 U.S. at 686.

Pursuant to Westerly Police Department standard procedure for high-

risk (or felony) stops, the officers directed Flowers to kneel on

the road next to his car, handcuffed, frisked, and placed him in

the back seat of the police cruiser. Officers Silvestri and

Garafola then searched Flowers' car for weapons and a possible

other suspect. The entire detention took no more than fifteen

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minutes. Upon uncovering nothing, Officer Fiore promptly took

Flowers out of the cruiser, removed his handcuffs, explained why he

was stopped, and allowed him to return to his own car. We stress

that the officers did not determine that Flowers was unarmed and

that no weapon was hidden in the car until after he had been

handcuffed and placed in the cruiser. Flowers presents no evidence

that the officers were dilatory in their investigation and we see

no way that the officers could have substantially shortened the

detention if they were to dispel their suspicions meaningfully.

Admittedly, this case comes close to the line between a

Terry stop and a greater intrusion that must be justified by

probable cause. However, in addition to our own precedent pointing

toward the former, the Sixth Circuit found that an investigatory

Terry stop did not escalate into a de facto arrest based on facts

almost identical to those at hand. In Houston v. Does, 174 F.3d

809, 815 (6th Cir. 1999), the plaintiffs, suspected of a shooting

in an area of Springfield, Ohio, were ordered out of their car at

gunpoint by three police officers, placed in handcuffs in the back

of a police cruiser, and questioned about the shooting, of which

the plaintiffs had no knowledge and denied any involvement. They

were detained for at least thirty-three minutes before being

released. Id. Here, besides being held for a far shorter period

of time, Flowers was never subject to interrogation, which is one

intrusive measure less than in Houston.

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 It is also noteworthy that the officers never relocated

Flowers to a station house or detention area. Nor did they read

Flowers Miranda rights. In Acosta-Colon, we held that the

detention of a suspect crossed over to a de facto arrest largely

due to the fact that customs officers relocated the suspect from

the place of the original stop -- an airport gate -- to an official

interrogation room some distance from the gate. See 157 F.3d at

15; see also Royer, 460 U.S. at 494. Similarly, the Supreme Court

in Dunaway found a de facto arrest where police officers brought

the defendant to the police station, read him his Miranda rights,

and interrogated him. See 442 U.S. at 212-13. At no point did

Officers Fiore, Silvestri, or Garafola interrogate Flowers or

remove him from the scene to an official holding area. The entire

episode occurred in neutral surroundings -- on a public street.

Nor did the officers communicate verbally to Flowers that he was

under arrest or that they wanted to arrest him.

The various incidents of the stop and detention -- some

arrest-like -- ultimately add up to a situation where the officers

responded in an urgent and reasonable fashion to a report of an

armed threat that was substantially confirmed by Gaccione's

firsthand observation. We stress again that we do not rely on any

single factor as legally dispositive, but assess the cumulative

impact of the various elements of the stop. We look at the total

factual context of the stop, thereby following our directive to

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make fact-specific evaluations and inquiries of the situation as a

whole. See Young, 105 F.3d at 8. Our conclusion is that the

officers' stop and detention of Flowers did not go beyond the

boundaries of a Terry stop.

Accordingly, to determine whether the officers' initial

stop of Flowers was constitutional, we assess whether the officers

had a "reasonable and articulable suspicion" of past or present

criminal activity. McCarthy, 77 F.3d at 529. In determining

whether a challenged stop is reasonable, and thus, falls within the

range of permissible investigatory stops, we engage in a two-step

inquiry, asking "(1) whether the officer's action was justified at

its inception"; and "(2) whether it was reasonably related in scope

to the circumstances justifying the interference in the first

place." Terry, 392 U.S. at 19-20; see also United States v.

Stanley, 915 F.2d 54, 55 (1st Cir. 1990). The Supreme Court has

explained that the question of reasonableness requires a court to

"balance[] the nature and quality of the intrusion on personal

security against the importance of the governmental interests

alleged to justify the intrusion." United States v. Hensley, 469

U.S. 221, 228 (1985). Again, the inquiry is fact specific and we

must consider the totality of the circumstances confronting the

police at the time of the stop. United States v. Kimball, 25 F.3d

1, 6 (1st Cir. 1994); see also United States v. Rodriguez-Morales,

929 F.2d 780, 783 (1st Cir. 1991), cert. denied, 502 U.S. 1030

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(1992). We also stress that reasonable suspicion is "not amenable

to technical formulations that purport to identify the precise

types of conduct or sets of circumstances that will or will not

permit a police officer to stop and detain an individual." United

States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998) (citing Ornelas

v. United States, 517 U.S. 690, 695-96 (1996)).

The district court held that there was no constitutional

violation based on four key factual observations: (1) Gaccione

reported receiving a threat that two black men with guns were

coming to his home "to cause trouble"; (2) Gaccione reported that

two black men in a gray or black car had driven by Gaccione's home

slowly; (3) "a few minutes later," Fiore observed Flowers, a black

man, "driving toward Gaccione's home" in a small gray car; and (4)

Flowers' car bore license plates not issued to his vehicle. 239 F.

Supp.2d at 177-78. Though we review the record de novo, we will

note the district court's factual observations as they bear on the

appropriateness of its grant of summary judgment to the defendants.

First, Flowers contends that "there was [n]ever any

serious concern that a crime had been or was about to be

committed." He argues that Fiore acted unreasonably on Gaccione's

"sketchy" complaint that itself was attributed to a man named

O'Rourke whom Fiore had never heard of or met. Because Fiore never

corroborated the threat with O'Rourke himself, Flowers argues,

Fiore had no way to determine or even make a guess as to the

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credibility of the threats. Flowers fails, however, to address

Gaccione's report that since receiving the tip he had seen a gray

or black car occupied by two black men pass by his home about five

minutes before Fiore's arrival. Gaccione's firsthand observation

of the vehicle and its occupants, uncontroverted by Flowers, lent

greater credibility to the reported threat.

Flowers also challenges the district court's version of

when and how Fiore discovered a discrepancy between the license

plate on Flowers' car and the vehicle's registration. Though Fiore

here on appeal concedes that the discrepancy never figured into his

decision to follow and stop Flowers, it is nonetheless disputed

whether he knew of the discrepancy before or after the stop. See

supra note 1.

Third, Flowers disputes the district court's statement

that Fiore observed Flowers drive past "at approximately 12:30

p.m." 239 F. Supp.2d at 176. Later in its Memorandum and Order,

the court stated that Fiore first noticed Flowers only "a few

minutes" after leaving the Gaccione home. Id. The police

department radio log, however, indicates that Fiore first notified

his dispatcher that he was following a vehicle on Route 3 at

12:42:47 p.m. As Fiore left the Gaccione residence at 12:12 p.m.,

the log reveals that as long as thirty minutes may have passed

before Fiore observed Flowers and decided to follow him.

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 Finally, Flowers claims that the district court erred on

the issues of the route of Flowers' vehicle and the location of the

stop. He contends that if Fiore positioned himself near the

Gaccione residence and then followed Flowers for approximately one

mile before stopping him, Fiore either (1) stopped Flowers as he

was driving away from Gaccione's residence, or (2) was positioned

more than a mile from the residence when he first noticed Flowers'

car. In his affidavit, Fiore stated that he posted himself at the

intersection of Route 3 and Danielle Drive, which is about half a

mile east of the Gaccione residence along Route 3. From that

intersection, one mile westward along Route 3 would put both Fiore

and Flowers well past the Gaccione residence. Indeed, Route 3's

intersection with Danielle Drive is approximately one mile east of

its intersection with High Street, the site of the stop. The

Gaccione home on Ashaway Road is halfway between the two

intersections.

The district court noted that Fiore observed Flowers

"driving toward Gaccione's home." 239 F. Supp.2d at 177. The

court did not mention that Flowers had already passed the residence

along Route 3 and was at least half a mile east of the residence by

the time he was stopped. Flowers contends that this fact throws

into question whether Fiore was reasonable in continuing to follow

Flowers and stop him after he observed that Flowers did not turn

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into the Gaccione complex, but instead proceeded past it along

Route 3.

Despite these apparent errors by the district court and

construing the facts in a light most favorable to Flowers, we hold

that Fiore's conduct met the double approach adopted in Terry. 392

U.S. at 19-20. Equipped with a description confirmed by Gaccione's

firsthand observation, it was reasonable for Fiore to follow the

first African-American male in a black or gray car he observed in

the immediate area of the Gaccione residence. That as long as half

an hour may have elapsed after he left the Gaccione residence (as

opposed to twenty minutes) arguably attenuates the reasonableness

of Fiore's suspicion that Flowers was indeed the suspect. However,

we do not believe that a matter of ten minutes disposes of

suspicion altogether, especially when a car and driver

substantially matching the given description eventually appear.

That Fiore did not see a second African-American male in the car is

adequately countered by Fiore's explanation that he thought a

second man either could have been dropped off or was hiding in the

car. Against the immediacy and gravity of the reported threat,

Fiore was justified in following through on his initial

observation.

Though Flowers ultimately passed the Gaccione residence

along Route 3, Fiore acted reasonably in continuing to follow him

and stopping him shortly thereafter, given the possibility that the

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driver could have seen Fiore's marked cruiser and accordingly

decided against turning into the driveway of the Gaccione

residence. It is important to note that Flowers was headed toward

the residence along Route 3 at the time Flowers first observed him.

As for the second Terry prong, as set out above, all three officers

detained Flowers in a manner "reasonably related in scope to the

circumstances justifying the interference in the first place."

Terry, 392 U.S. at 20.

As for Silvestri and Garafola, they were reasonable in

suspecting that Flowers was one of the armed men in Gaccione's

complaint after hearing the alert broadcast by Fiore and his call

for backup. Flowers makes no attempt to challenge the two backup

officers' conduct during the stop and detention.

In sum, we stress that the government purpose served by

the detention in the case is substantial. The nature of the

potential criminal conduct, a daylight armed assault involving

physical threats, was serious. The stop took place shortly after

reports of the threat. Pursuant to Fiore's observation and alert,

the officers acted swiftly to dispel any suspicion that they may

have had with regard to Flowers. In such cases of quick

decisionmaking by law enforcement in potentially dangerous

situations, we "should not indulge in unrealistic second-guessing."

Sharpe, 470 U.S. at 1575.

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 As for Flowers' excessive force claim, we similarly

conclude that the officers used reasonable measures to restrain

Flowers. See Graham v. Connor, 490 U.S. 386, 395-96 (1989)

(excessive force claims are judged under an "objective

reasonableness" standard; relevant factors include the degree of

force used, the severity of the crime at issue, the immediacy of a

threat to officers or others, and whether the suspect is resisting

arrest or attempting flight). Fiore unholstered his firearm and

handcuffed Flowers to ensure his safety and in order to conduct the

stop and search without incident. We also agree with the district

court that Silvestri and Garafola were reasonable in their

momentary display of firearms during the detention, as they

justifiably relied on Fiore's initial alert that Flowers may have

been one of the armed individuals reported by Gaccione and did so

for the limited purpose of protecting themselves and securing

Flowers safely.

Again, this is a close case. However, against the proper

standard and accounting for the district court's errors and

elisions, we in the end conclude that the officers possessed

sufficient and reasonable suspicion to stop Flowers and acted

reasonably in dispelling that suspicion throughout the course of

the detention.

B. Qualified Immunity

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 Upon finding that there was no constitutional violation,

we do not address the issue of qualified immunity. See Saucier v.

Katz, 533 U.S. 194, 201 (2001) ("If no constitutional right would

have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.");

Aversa v. United States, 99 F.3d 1200, 1215 (1st Cir. 1996).

C. Equal Protection

Flowers did not raise his equal protection claim in his

memorandum in opposition to summary judgment, nor did he argue it

in his brief here on appeal. Regardless, his claim fails on the

merits. Selective enforcement of motor vehicle laws on the basis

of race is a violation of the Equal Protection Clause of the

Fourteenth Amendment. See Chavez v. Ill. State Police, 251 F.3d

612, 635 (7th Cir. 2001); see also Whren, 517 U.S. at 813. In

order to prevail on his equal protection claim, Flowers must

present evidence that he was treated differently from similarly

situated non-African-American motorists and that the action taken

against him was motivated, at least in part, by his race. See

Chavez, 251 F.3d at 635-36, 645. Flowers has presented no evidence

that the officers treated him any differently from similarly

situated non-African-American motorists. We affirm the district

court's grant of summary judgment in favor of the defendants as to

Flowers' equal protection claim.

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D. Municipal Liability

As the district court stated, "any liability that the

Town may have under § 1983 is derivative" from the unconstitutional

actions of the defendant police officers. 239 F. Supp.2d at 178

(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986));

see also Jarrett v. Town of Yarmouth, 331 F.3d 140, 151 (1st Cir.

2003). Since there was no unconstitutional conduct on the part of

the defendant officers, the Town cannot be found liable.

Accordingly, we affirm the district court's grant of summary

judgment in favor of the Town as to all of Flowers' federal claims.

E. State Law Claims

We affirm the district court's without prejudice

dismissal of Flowers' state claims. See United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 726 (1966) ("[I]f the federal claims are

dismissed before trial . . . the state claims should be dismissed

as well.").

The district court's grant of summary judgment in favor

of defendants is affirmed. No costs are awarded.

Concurrence follows.

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 BOUDIN, Chief Judge, concurring in the judgment. Perhaps

under the existing case law, Flowers' detention can be classified

as a Terry stop rather than an arrest, even though it involved

handcuffs and more than a brief encounter and must have been a

scary experience, unmitigated even by an apology. United States v.

Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir. 1998). If so (and the

premise is not wholly secure), the officer did not need probable

cause--only a "reasonable and articulable suspicion" of criminal

activity on the part of this plaintiff. United States v. McCarthy,

77 F.3d 522, 529 (1st Cir. 1996).

The original tip was not completely anonymous (and this

avoids the special problem posed in Florida v. J.L., 529 U.S. 266

(2000)), and some detail (vague motive, loose description) was

furnished by the man who summoned the police. But the tip--

advising that two black men were coming to cause trouble--was

second-hand and somewhat disjointed. Thereafter, two black men in

a black or gray car allegedly drove by the house, but they had not

stopped, so this fact was of pretty limited value as corroboration

of the original tip.

Even if the original tip and drive-by justified

suspicion, the question remains whether they justified suspicion of

Flowers. The informant claimed to have sighted two black men in a

black or gray car. Gray cars are not uncommon; and the one stopped

contained one black man--of middle age--rather than the two

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predicted, both of whom would likely have been younger if the story

were true and they were the culprits. Also the car was stopped 20

to 30 minutes after the one allegedly driven by the house, further

reducing the likelihood that Flowers had anything to do with a

prospective crime.

In addition, as the panel opinion shows, there is no

clear indication that the plaintiff was driving to the informant's

house at the time he was stopped. Seemingly the better inference

from the facts recounted is that the plaintiff had driven past the

turn-off, and inferences at this stage must be drawn in the

plaintiff's favor, Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122,

125 (1st Cir. 1999). This does not prove that the plaintiff was

uninvolved, but it deprives the officer of a piece of evidence in

favor of the stop and further undercuts reasonable suspicion.

The Terry stop cases are generally helpful to the police,

stressing the ability of an experienced officer to draw inferences

and to base reasonable suspicion on an assemblage of small points.

See Ornelas v. United States, 517 U.S. 690, 699-700 (1996); United

States v. Sokolow, 490 U.S. 1, 9-10 (1989). Still, not every

articulable suspicion is reasonable. For example, in Rivera v.

Murphy, 979 F.2d 259, 264 (1st Cir. 1992), this court held that

police lacked reasonable suspicion to stop a driver who was double

parked not far from a pedestrian in a drug-trafficking location.

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 In this instance, the link between the tip (itself

somewhat dubious) and the plaintiff seems to me too thin to support

a reasonable suspicion of this plaintiff. There were discrepancies

as to timing, the number of persons expected, and (inferentially)

age; and there was little basis for supposing that the plaintiff's

car, traveling on an open highway, was headed to the informant's

house. Nor is there anything here to suggest that a black man

driving a gray car on an open highway is a remarkably rare event.

The stop may be close to a line that is difficult to draw, but in

my view it falls on the wrong side.

There remains no basis for personal liability on the part

of the officer under section 1983 (nor, absent a policy or

practice, is there municipal liability). City of Canton v. Harris,

489 U.S. 378, 388-89 (1989); Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978). Even if a "constitutional" mistake, this one

is surely covered by qualified immunity which gives the police

latitude to make mistakes on close calls without paying damages.

Goyco de Maldonado v. Rivera, 849 F.2d 683, 688 (1st Cir. 1988).

Nevertheless, a determination that reasonable suspicion was lacking

would be a judgment well worth recording for future guidance of the

police. Saucier v. Katz, 533 U.S. 194, 201 (2001).

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