Burke v. Town of Walpole

United States Court of Appeals
For the First Circuit

No. 04-1226
EDMUND F. BURKE,

Plaintiff, Appellant,

v.

TOWN OF WALPOLE; JOSEPH BETRO; RICHARD STILLMAN;
JAMES J. DOLAN; WILLIAM F. BAUSCH; LOWELL LEVINE;
STEPHEN MCDONALD; KEVIN SHEA; KATHLEEN CROWLEY,

Defendants, Appellees,

ROBERT MARTIN,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Selya, Lipez, and Howard, Circuit Judges.

Robert S. Sinsheimer, with whom Susan Sivacek and Sinsheimer
& Associates were on brief, for Appellant.
James W. Simpson, Jr., with whom Douglas I. Louison and
Merrick, Louison & Costello, LLP, were on brief, for Appellees Town
of Walpole, Joseph Betro, Richard Stillman, James J. Dolan, and
William F. Bausch.
Erin George, with whom Matthew H. McNamara and Thorn Gershon
Tymann and Bonanni, LLP, were on brief, for Appellee Lowell Levine.
Suzanne T. Caravaggio, with whom Joseph P. Kittredge and Law
Offices of Timothy M. Burke were on brief, for Appellees Stephen
McDonald and Kevin Shea.
Robert M. Mendillo, with whom Mendillo & Ross, LLP, was on
brief, for Appellee Kathleen Crowley.
Thomas F. Reilly, Attorney General, and Natalie S. Monroe,
Assistant Attorney General, on brief for Appellee Robert Martin.
April 26, 2005
 LIPEZ, Circuit Judge. This civil rights case requires us

to decide whether police officers of the Town of Walpole and the

Commonwealth of Massachusetts Department of State Police

("Massachusetts State Police" or "MSP") were entitled to summary

judgment on Plaintiff-Appellant Edmund F. Burke's claim that they

violated his Fourth Amendment rights when they arrested him for a

brutal murder he did not commit. We must also decide whether

forensic dentists/odontologists who assisted in the murder

investigation were entitled to summary judgment on Burke's claims

that they fabricated or exaggerated inculpatory bite mark evidence

in support of probable cause. Finally, we must decide whether the

Chief of Police of the Town of Walpole was entitled to summary

judgment on Burke's claim that he defamed Burke after his arrest.

We first identify the defendants and their official

positions. Defendants James J. Dolan, William F. Bausch, Joseph

Betro, and Richard Stillman were employed in the Police Department

of Defendant Town of Walpole, Dolan and Bausch as detectives, Betro

as Chief of Police, and Stillman as Lieutenant and press officer.

Defendants Stephen McDonald and Kevin Shea were Troopers with the

Massachusetts State Police assigned to the Crime Prevention and

Control Unit at the Norfolk County Office of the District

Attorney,1 with Shea holding the rank of Sergeant. Defendants Dr.

1
The MSP operates a "Division of Investigative Service" at the
District Attorney's Office.

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Lowell Levine and Dr. Kathleen Crowley were employed as forensic

odontologists, Dr. Levine as an independent consultant to the

Norfolk County District Attorney's Office, and Dr. Crowley on a

part-time basis with the Massachusetts Office of the Chief Medical

Examiner. Appellee Robert Martin was employed as a chemist at the

MSP Crime Laboratory.

After a careful review of the record, with our focus on

Burke's principal § 1983 claim, we conclude the following:

• viewing the evidence as we must on summary
judgment, Burke has proffered evidence
sufficient to support a finding that he was
arrested without probable cause, and hence
in violation of his Fourth Amendment right;

• Trooper McDonald's defense of qualified
immunity fails because the record contains
evidence, sufficient to create a jury
question, that he intentionally or
recklessly withheld exculpatory DNA evidence
from the magistrate who issued the warrant
to arrest Burke, and a reasonable officer
would know that such conduct violated a
clearly established Fourth Amendment right;

• Det. Dolan had a reasonable basis for
seeking an arrest warrant and is entitled to
summary judgment on the ground of qualified
immunity;

• Det. Bausch and Sgt. Shea reasonably relied
on a facially valid arrest warrant and are
entitled to summary judgment on the ground
of qualified immunity;

• the record fails to support Burke's
allegation that Dr. Levine or Dr. Crowley
intentionally or recklessly fabricated or
exaggerated inculpatory bite mark opinions,
and they are entitled to summary judgment on
the ground of qualified immunity;

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 • Chief Betro's public statements made in the
exercise of his official duties are
conditionally privileged, and he is entitled
to summary judgment on Burke's defamation
claim.2

2
Burke raised many other claims on appeal, all without merit.
We have disposed of those claims summarily for substantially the
same reasons given by the magistrate judge and adopted by the
district court. These claims include: civil conspiracy under 42
U.S.C. § 1983 (Dr. Levine, Trooper McDonald, Sgt. Shea, Dets. Dolan
and Bausch, Lt. Stillman, Chief Betro, and Dr. Crowley (appeal from
dismissal of claim)), supervisory liability under 42 U.S.C. § 1983
(Lt. Stillman and Chief Betro), municipal liability under 42 U.S.C.
§ 1983 (Town of Walpole), defamation (Lt. Stillman), and medical
malpractice (Dr. Levine). See Burke v. Town of Walpole, No. 00-
10376, 2003 U.S. Dist. LEXIS 24912 (D. Mass. Aug. 5, 2003)
(adopting magistrate judge's report and recommendation on motion to
dismiss); Burke v. Town of Walpole, Nos. 00-10376, 00-10384, 00-
12541, 2004 U.S. Dist. LEXIS 3964 (D. Mass. Jan. 22, 2004)
(adopting magistrate judge's reports and recommendations on summary
judgment and granting summary judgment to Dr. Crowley without
referring motion to magistrate judge).
Given Burke's lack of due diligence in identifying MSP Crime
Lab Chemist Robert Martin as a potential defendant, we also affirm,
on the ground of prejudicial delay, the district court's decision
denying Burke's motion to amend his complaint. See Steir v. Girl
Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004) ("[P]rotracted
delay, with its attendant burdens on the opponent and the court, is
itself a sufficient reason for the court to withhold permission to
amend.").
We treat as waived all claims not mentioned in Burke's omnibus
objection to the magistrate judge's reports and recommendations on
summary judgment, Keating v. Sec'y of Health and Human Servs., 848
F.2d 271, 275 (1st Cir. 1988) ("[O]nly those issues fairly raised
by the objections to the magistrate's report are subject to review
in the district court and those not preserved by such objection are
precluded on appeal."), as well as those insufficiently developed
on appeal, United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
These include: Burke's claim that his home was searched without
probable cause; all supplemental state law claims against Dets.
Dolan and Bausch, Trooper McDonald, and Dr. Crowley; and all claims
against two defendants whom Burke originally named as appellees
(MSP Trooper Scott Jennings and Dr. Crowley's supervisor at the
Office of the Chief Medical Examiner, Dr. Richard Evans).

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 I. BACKGROUND

We recount the facts in the light most favorable to

Plaintiff-Appellant Burke. Diaz v. City of Fitchburg, 176 F.3d

560, 561 (1st Cir. 1999). On the morning of December 1, 1998, the

partially clothed and mutilated body of 75-year-old Irene Kennedy

was found in a wooded area of Bird Park in Walpole, Massachusetts.

She had been savagely beaten, strangled, and stabbed multiple

times. Her breasts were exposed, and the left breast bore a

visible bite mark. Investigators from the Town of Walpole Police

Department and the Massachusetts State Police were called to the

scene after Kennedy's husband alerted a park caretaker to the

body's presence.3 According to police reports, Mr. Kennedy told

investigators that he and his wife walked in the park almost daily,

but that they took separate routes because an injury prevented him

from walking as quickly as his wife. He stated that he had gone

looking for his wife when she failed to meet him at their usual

time in the parking lot that morning, and that he had discovered

her body in an area of the park where he knew she sometimes stopped

to urinate.

Upon learning of Mrs. Kennedy's murder, one of the

Kennedys' daughters, Nancy Tower, told Det. Bausch that he should

3
The Walpole officers were not directly involved in the
collection or analysis of forensic evidence, which was handled
primarily by MSP Crime Scene Services and the Office of the Chief
Medical Examiner.

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speak to Edmund Burke, who lived on the street adjoining the

parking lot where her parents routinely parked, and whose brother

was married to another of the Kennedys' daughters. According to

Det. Bausch's report, Tower told him that Burke was "very odd."

Trooper McDonald also reported that Tower told him "that Eddie

Burke is abusive to his mother" and that Burke's mother had told

Mrs. Kennedy so. Trooper McDonald's report continued, "Ms. Tower

stated that as a result of these conversations she felt that her

mother was leery of Burke. Ms. Tower stated that subject Burke is

unemployed and hangs around his house all day and seems very

strange."

Later that morning, when Det. Bausch and another Walpole

police officer visited Burke's home, where he lived with his 88-

year-old mother, no one responded to their knocks or shouts. When

they returned to the house a short time later, Burke's mother and

brother were outside the house. According to Det. Bausch's

report, Burke's mother told him Burke had been asleep when she left

the house earlier that morning, and she seemed reluctant to wake

him, but eventually agreed to do so. When Burke came outside, Det.

Bausch informed him and his brother of Mrs. Kennedy's death. Burke

then agreed to go to the police station to talk to investigators

and left with his brother while Det. Bausch remained outside

Burke's house.

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 Meanwhile, investigators at the crime scene employed a K-

9 tracking dog to follow any scents detected near the body.

According to a report by the dog's handler, the dog was introduced

to "a pile of leaves [removed] from between the victim's legs" and

then proceeded through the woods and across a field towards the

street on which Burke lived. From there, the handler recorded, "we

went to the right before the K-9 circled back to the left heading

west. [The] K-9 . . . traveled along the . . . sidewalk past

[Burke's house] for about fifteen to twenty feet. The K-9 circled

back and traveled to the front door of [Burke's house] . . . ."

Det. Bausch saw the K-9 dog come out of the woods and

ultimately stop at Burke's house. Det. Bausch then went to the

police station, where he, Sgt. Shea, and Trooper McDonald

questioned Burke. According to Sgt. Shea's report, Burke told the

officers that he knew the Kennedys but not well, and he described

their walking routine, which he knew because he usually saw them in

the morning in the parking lot next to his house. Burke stated

that he had been asleep at home at the time of the murder until the

police arrived and his mother woke him up. Burke also stated that

he had not visited the park for two years, intending the statement

to mean that he had not gone to the park as a destination during

that time. When Det. Bausch told Burke that a K-9 dog had

apparently tracked a scent through the park to Burke's front door,

Burke stated that he had taken a shortcut through the park late on

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the Sunday night before the Tuesday morning murder, along with two

of his cats. The officers considered this statement to be

inconsistent with Burke's earlier statement that he had not visited

the park for two years. While at the station, Burke provided a

saliva sample for DNA testing and comparison with any foreign DNA

collected from the body. He also permitted police to take his

jacket in order to test it for forensic evidence.

In the days after the murder, Det. Dolan interviewed

potential witnesses who lived in the vicinity of Bird Park or who

walked regularly in the park. He recorded statements by several

people who reported seeing a person matching Burke's description in

the general area of the park in which the body was found in the

days before the murder and also in the driveway outside Burke's

house on the morning of the murder when Burke said he had been

asleep.

Further examination of the victim's body by the Chief

Medical Examiner's Office revealed a second bite mark on the other

breast. Both bite marks were determined to have been made by a

human. The bite marks were photographed and the bite mark on the

left breast swabbed to collect DNA evidence from any traces of

foreign saliva or skin. The swab from the victim's left breast and

the sample of Burke's saliva were sent to the Maine State Police

Crime Laboratory on December 4 for expedited DNA analysis because

no such facility was yet in operation in Massachusetts. Two

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swatches from Burke's jacket were also sent to the Maine Crime Lab

on December 8.

On December 3, Burke agreed to go to the police station

so that Dr. Crowley, a forensic odontologist with the Office of the

Chief Medical Examiner, could make a mold of his teeth for

comparison with photographs of the bite marks on the victim's

breasts. Upon Dr. Crowley's recommendation, the district

attorney's office hired Dr. Lowell Levine, an experienced forensic

odontologist based in Albany, New York, to examine the mold of

Burke's teeth and compare it with the photographs of the bite

marks. On December 6, Dr. Crowley, Det. Dolan, and Trooper

Jennings traveled to Albany to bring the mold and the photographs

to Dr. Levine for examination. Dr. Levine formed an initial

opinion that Burke could not be excluded as the source of the bite

marks, but stated that he would need to see enhanced photographs in

order to render a final opinion.

On December 9, Dr. Levine traveled to Boston to examine

samples of the victim's clothing for bite marks and to instruct a

photo laboratory employee on how to enlarge the photographs for

better comparison with the mold of Burke's teeth. Dr. Levine then

returned to Albany. Trooper McDonald and Sgt. Shea delivered the

enlarged photographs to Dr. Levine in Albany late that same

evening. Also on December 9, Theresa Calicchio, the forensic DNA

chemist at the Maine Crime Lab who was assigned to perform the DNA

-10-
analysis of Burke's saliva samples, the swatches from his jacket,

and the samples taken from the victim's left breast, called Trooper

McDonald to inform him that she had extracted DNA from the samples

she had received and that she would call with results of the

analysis the next day.

Sometime on the morning of December 10, after comparing

the mold of Burke's teeth with the enlarged photographs of the bite

marks, Dr. Levine told Trooper McDonald that Burke's teeth matched

the bite mark on the victim's left breast to a "reasonable degree

of scientific certainty." That same morning, at around 11:00 AM,

Calicchio informed Trooper McDonald that the DNA analysis showed

that Burke was excluded as the source of male DNA found in the bite

mark on the victim's left breast.4

According to a report by Sgt. Shea, he and another MSP

Trooper, Scott Jennings, received Dr. Levine's bite mark opinion

from Trooper McDonald on December 10 "at approximately 1315 hours"

(i.e., 1:15 PM). Sgt. Shea and Trooper Jennings then incorporated

the bite mark opinion into an affidavit in support of a search

4
Calicchio wrote in her call log that Trooper McDonald called
her, and that she "gave him verbal results on the DNA profiles
obtained from the evidence." Calicchio's written report of the DNA
analysis, which she prepared on December 12, stated: "A mixture of
male and female DNA profiles was obtained from the breast swabbings
(Items #1A and 1B). The predominant DNA profile matches the DNA
profile of Irene Kennedy. The minor component of the DNA profile
does not match the DNA profile of Edmund Burke. A nine locus DNA
profile was obtained from the cuttings of [Burke's] blue jacket
(Items 3A and 3B) which matches the DNA profile of Edmund Burke."
No other human DNA was found on Burke's jacket.

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warrant. Based on the facts recited in the search warrant

affidavit, Det. Dolan prepared an application for a warrant for

Burke's arrest.

At approximately 3:00 PM that afternoon, Burke was

arrested at his home and brought to the police station in

handcuffs. Det. Bausch, Sgt. Shea, Trooper Jennings, and Trooper

McDonald, among other officers, were present during the arrest,

although Troopers Jennings and McDonald testified at deposition

that they were present only to conduct a search of Burke's home

pursuant to the search warrant.

During Burke's arraignment the next day, December 11,

Trooper McDonald called Sgt. Shea, who was at the courthouse, to

tell him that the DNA analysis results excluded Burke as the source

of the unidentified male DNA on the victim's left breast. Sgt.

Shea alerted Assistant District Attorney ("ADA") Gerald Pudolsky

mid-argument and pulled him away from the arraignment to tell him

the new information. When Burke's arraignment resumed, ADA

Pudolsky represented to the arraigning judge that DNA analysis had

shown ambiguous results and that "further testing" was required.5

He then sought Burke's detention without bail. Burke's attorney

did not request Burke's immediate release on bail, and the

arraigning judge ordered Burke held pending a bail hearing on

5
It is unclear why ADA Pudolsky believed that the DNA analysis
results were ambiguous and that additional testing was required to
exclude Burke as the source of the male DNA in the bite mark.

-12-
December 29. On that date, Burke was granted release on bail to

house arrest with electronic monitoring. His release was delayed,

however, because his house could not immediately be equipped for

monitoring.

On January 17, while Burke was awaiting release on

conditional bail, a comparison of a palm print found on the

victim's body against a set of palm prints taken from Burke by

court order a few days earlier revealed that Burke was not the

source of the palm print on the victim's body. On January 19, the

district attorney filed a nolle prosequi in the case on the ground

that Burke's prosecution was premature. The next day, forty-one

days after his arrest, Burke was released from custody.6

Just over one year after his arrest, on December 13,

1999, Burke filed a civil rights action in state court against the

Town of Walpole, Dr. Levine, and various officers and supervisors

of the Walpole Police Department in their individual and official

capacities alleging, among other state and federal law claims, that

the defendants had violated 42 U.S.C. § 1983 by depriving him of

his right under the Fourth and Fourteenth Amendments to be free

6
According to a Boston Globe article of June 28, 2003, which
Burke submitted in his opposition to the Walpole defendants' motion
for summary judgment, police sought an arrest warrant for another
man who was already serving a life sentence for murder after a DNA
database search indicated a possible match between his DNA profile
and samples taken from Kennedy's body. We note that on June 24,
2004, the Associated Press reported that a Norfolk County grand
jury had charged the new suspect with Kennedy's murder.

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from arrest without probable cause. Burke also alleged that Chief

Betro had defamed him by falsely attributing the murder to him in

public. The defendants removed the case to federal court. On

December 14, 2000, Burke filed a similar action in federal court

against various MSP Troopers, employees of the Massachusetts Chief

Medical Examiner's Office, and the Commonwealth of Massachusetts.

Burke then filed an amended complaint to consolidate the two cases.

In May 2001 Burke amended his complaint to add claims of negligence

against the Commonwealth. Burke was permitted to amend his

complaint again on February 19, 2002 to join Dr. Crowley as a

defendant. On July 16, 2002, Burke moved to amend his complaint a

fourth time to join Robert Martin, a chemist at the Massachusetts

Crime Lab, as a defendant, but the motion was denied.

In May 2003, all defendants except Dr. Crowley moved for

summary judgment.7 In October 2003 a magistrate judge recommended

granting summary judgment to all defendants on all claims in three

comprehensive reports and recommendations. See Burke v. Town of

Walpole, Nos. 00-10376, 00-10384, 00-12541, 2003 U.S. Dist. LEXIS

24896 (D. Mass. Oct. 6, 2003) (MSP defendants); Burke v. Town of

Walpole, Nos. 00-10376, 00-10384, 00-12541, 2003 U.S. Dist. LEXIS

24895 (D. Mass. Oct. 8, 2003) (Dr. Levine); Burke v. Town of

Walpole, Nos. 00-10376, 00-10384, 00-12541, 2003 U.S. Dist. LEXIS

7
Two other MSP defendants were dismissed from the suit prior
to summary judgment.

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24897 (D. Mass. Oct. 8, 2003) (Walpole defendants). Dr. Crowley

moved for summary judgment in December 2003. On January 22, 2004,

the district court adopted the magistrate judge's reports and

recommendations and granted Dr. Crowley's motion for summary

judgment without referring the motion to the magistrate judge.

Burke v. Town of Walpole, Nos. 00-10376, 00-10384, 00-12541, 2004

U.S. Dist. LEXIS 3964 (D. Mass. Jan. 22, 2004). Burke now

appeals.8

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de

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

Viewing the record "in the light most hospitable to the party

opposing summary judgment [and] indulging all reasonable inferences

in that party's favor," Griggs-Ryan v. Smith, 904 F.2d 112, 115

(1st Cir. 1990), we must discern whether "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law," Fed. R. Civ. P. 56(c). "In this

8
Burke does not appeal the grant of summary judgment to one
other Walpole defendant and two other MSP defendants, Burke, 2004
U.S. Dist. LEXIS 3964, or the grants of motions to dismiss filed by
the Commonwealth of Massachusetts, Burke v. Town of Walpole, Nos.
00-10376, 00-10384, 00-12541, 2004 U.S. Dist. LEXIS 4033 (D. Mass.
Jan. 22, 2004) (adopting magistrate judge's report and
recommendation), and another employee of the Office of the Medical
Examiner, Burke, 2003 U.S. Dist. LEXIS 24912 (adopting magistrate
judge's report and recommendation).

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context, 'genuine' means that the evidence about the fact is such

that a reasonable jury could resolve the point in favor of the

nonmoving party; 'material' means that the fact is one 'that might

affect the outcome of the suit under the governing law.'" United

States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir.

1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (citation omitted)).

Where the moving parties -- here, the defendants -- do

not have the burden of persuasion at trial and have "suggested that

competent evidence to prove the case is lacking, the burden

devolves upon the nonmovant-plaintiff to 'document some factual

disagreement sufficient to deflect brevis disposition.'" Wynne v.

Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)

(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991)). A non-moving party may not successfully defend against

summary judgment where the evidence relied upon "is merely

colorable or is not significantly probative." Anderson, 477 U.S.

at 249-50 (citation omitted). We thus ignore any "conclusory

allegations, improbable inferences, and unsupported speculation."

Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249 (1st Cir.

1996) (citation omitted).

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 III. CLAIMS AGAINST THE POLICE DEFENDANTS9

To establish a governmental official's personal liability

under 42 U.S.C. § 1983, "it is enough to show that the official,

acting under color of state law, caused the deprivation of a

federal right." Kentucky v. Graham, 473 U.S. 159, 166 (1985).10

Burke alleges that the police defendants violated his Fourth

Amendment right to be free from unreasonable seizure11 by procuring:

(1) his home arrest without a valid warrant, (2) his arrest without

probable cause, and (3) his arrest on the basis of a misleading

warrant application submitted with intentional or reckless

disregard for the truth.

The defendants all insist that Burke suffered no

constitutional deprivation. The individual police defendants

9
Because we summarily affirm the grant of summary judgment to
Lt. Stillman and Chief Betro on Burke's § 1983 claims, see supra
note 2, we exclude them from the discussion that follows.
10
42 U.S.C. § 1983 states, in relevant part: "Every person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress . . . ."
11
The Fourth Amendment provides: "The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized."

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further argue that even if the record supports Burke's allegations

that he suffered a violation of a Fourth Amendment right, they are

entitled to qualified immunity against suit for damages in their

individual capacities for any acts or omissions that caused such a

deprivation. The doctrine of qualified immunity aims to

balance [the] desire to compensate those whose
rights are infringed by state actors with an
equally compelling desire to shield public
servants from undue interference with the
performance of their duties and from threats
of liability which, though unfounded, may
nevertheless be unbearably disruptive.

Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). Because

exposure to civil rights suits may result in "distraction of

officials from their governmental duties, inhibition of

discretionary action, and deterrence of able people from public

service," the doctrine of qualified immunity protects public

officials from liability under § 1983 so long as "their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 816, 818 (1982). The doctrine thus

protects "all but the plainly incompetent or those who knowingly

violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Because "[q]ualified immunity serves not only as a defense to

liability but also as 'an entitlement not to stand trial or face

the other burdens of litigation,'" Cox v. Hainey, 391 F.3d 25, 29

(1st Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

-18-
(1985)), "the applicability vel non of the qualified immunity

doctrine should be determined at the earliest practicable stage in

the case." Id.

The qualified immunity analysis consists of three

inquiries: "(i) whether the plaintiff's allegations, if true,

establish a constitutional violation; (ii) whether the

constitutional right at issue was clearly established at the time

of the putative violation; and (iii) whether a reasonable officer,

situated similarly to the defendant, would have understood the

challenged act or omission to contravene the discerned

constitutional right." Limone v. Condon, 372 F.3d 39, 44 (1st Cir.

2004).12 "Under ordinary circumstances, the development of the

doctrine of qualified immunity is best served by approaching these

inquiries" in sequence. Cox, 391 F.3d at 30. On summary judgment,

then, the threshold question is whether "all the uncontested facts

and any contested facts looked at in the plaintiff's favor" allege

a constitutional violation. Riverdale Mills Corp. v. Pimpare, 392

F.3d 55, 62 (1st Cir. 2004).

12
We have sometimes treated the qualified immunity analysis as
a two-step test by combining the second and third prongs to ask
whether "the contours of [the constitutional] right are 'clearly
established' under then-existing law so that a reasonable officer
would have known that his conduct was unlawful." Santana v.
Calderon, 342 F.3d 18, 23 (1st Cir. 2003).

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A. Deprivation of a Constitutional Right

1. Issuance of a Valid Arrest Warrant

Burke maintains that the arresting officers never

produced a warrant when they arrested him at his home on the

afternoon of December 10 and that the copy of the warrant they have

since produced is invalid because it is unsigned and unaccompanied

by an affidavit or statement of facts in support of probable cause.

It has been "indelibly etched in jurisprudential

granite," Buenrostro, 973 F.2d at 43, that a warrantless felony

arrest in a private home is "presumptively unreasonable," Payton v.

New York, 445 U.S. 573, 586 (1980). See also Kirk v. Louisiana,

536 U.S. 635, 638 (2002) (per curiam) (existence of probable cause

does not obviate warrant requirement absent exigent circumstances).

Burke argues that a reasonable jury could infer that no valid

warrant issued for his arrest. The police defendants insist that

they have produced sufficient evidence to compel the inference that

a valid arrest warrant was issued.13

13
The police defendants do not argue that exigent circumstances
existed to arrest Burke without a warrant, or that Burke consented
to the arresting officers' crossing "the firm line at the entrance
to the house drawn by the Fourth Amendment." Payton, 445 U.S. at
590; see e.g., Robbins v. MacKenzie, 364 F.2d 45 (1st Cir. 1966)
(describing actions sufficient to manifest consent to warrantless
search of rooming house). The record is also silent on the
question of whether Burke was free to withhold permission for the
arresting officers to enter his house. See United States v.
Beaudoin, 362 F.3d 60, 76 (1st Cir. 2004) (Lipez, J., dissenting)
(Payton's heightened protections for private residences apply to
defendant who opened the door "in response to a knock and request
by law enforcement officials" even where defendant was in a motel

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 Under Massachusetts law, the police need not submit an

affidavit in support of an application for an arrest warrant,

Commonwealth v. Baldassini, 260 N.E.2d 150, 153-54 (Mass. 1970),

and a mere "ministerial defect," such as the lack of an official

signature, may not render an arrest warrant invalid, see

Commonwealth v. Pellegrini, 539 N.E.2d 514, 515-16 (Mass. 1989)

(excusing ministerial defects in search warrant where "there is no

dispute that the judge intended to issue the warrant"). The Fourth

Amendment to the U.S. Constitution requires at a minimum, however,

that a warrant be "supported by Oath or affirmation."

Additionally, Mass. Gen. Laws ch. 276, § 22 (1998) requires that an

arrest warrant be issued "in compliance with the provisions of the

Massachusetts Rules of Criminal Procedure," which in turn require

an arrest warrant to be "signed by the official issuing it," Mass.

R. Crim. P. 6(b)(1). Under the Commonwealth's paperless,

computerized Warrant Management System,

[u]nless there can be some evidence of a
neutral consideration having been afforded an
application for an arrest warrant, there can
be no certainty that the warrant did not issue
by circumvention of the statutory scheme. In
theory, the police could issue their own
warrants, and disseminate them via the
[Warrant Management System].

room rather than a private home). Sgt. Shea testified at
deposition that "we went into the side door of [Burke's] house and
I called out his name and I said 'it's Kevin' and he came out and
I told him that we had a warrant for his arrest." Sgt. Shea also
testified at his deposition that he believed a valid arrest warrant
had been issued.

-21-
Commonwealth v. Alves, No. 01-00156-001-005, 2001 Mass. Super.

LEXIS 605, *13 (Mass. Super. Ct. Nov. 21, 2001).14

In lieu of a signed arrest warrant accompanied by an

affidavit describing the facts allegedly establishing probable

cause, the police defendants point to other evidence that a valid

warrant was issued by a neutral magistrate upon a finding of

probable cause prior to Burke's arrest. Det. Dolan testified at

deposition that he prepared an application for an arrest warrant at

the request of the District Attorney, including a summary of the

facts establishing probable cause based on information provided by

other investigating officers, and that he submitted the application

to a magistrate. At his deposition, Det. Dolan identified as the

text of his probable cause summary a six-paragraph excerpt from a

computer printout containing numerous reports allegedly produced by

Walpole officers during the murder investigation. Det. Dolan also

identified a longer version of the summary of the evidence that he

14
Mass. Gen. Laws ch. 276, § 23A (1998) provides in relevant
part that "[w]henever a court is requested to issue a warrant," the
clerk's office "shall enter" specified information about the
individual who is the subject of the warrant "into a computer
system to be known as the warrant management system. All warrants
appearing in the warrant management system shall be accessible
through the criminal justice information system, maintained by the
criminal history systems board, to law enforcement agencies and the
registry of motor vehicles. The warrant shall consist of
sufficient information electronically appearing in the warrant
management system, and a printout of the electronic warrant from
the criminal justice information system shall constitute a true
copy of the warrant."

-22-
drafted, but which the District Attorney requested that he shorten

for submission with the warrant application. Burke insists that a

jury could infer that the probable cause summaries in the computer

print-out were created only after Burke's arrest.

In addition to the unsigned copy of the arrest warrant

and Det. Dolan's summary of facts establishing probable cause, the

police defendants have produced a copy of the application for a

criminal complaint signed by Det. Dolan, on which the box marked

"Warrant" has been checked and initialed by a magistrate; a copy of

a summons and a complaint signed by the same magistrate, on each of

which the box for entry of "RETURN DATE AND TIME" contains the word

"warrant"; and a computer printout of Burke's criminal docket

(stored in the Warrant Management System database and retrieved

through the Criminal Justice Information System) showing a return

of warrant at around 4:00 PM on December 10. Finally, the police

defendants have produced a search warrant, obtained by Trooper

Jennings, dated December 10 and signed by the same magistrate judge

who signed and initialed the criminal complaint. The search

warrant is accompanied by a six-page affidavit including a much

more detailed summary of the facts allegedly establishing probable

cause than the summary Det. Dolan testified that he provided in

support of the arrest warrant.

We conclude that the defendants have produced

substantial, though imperfect, evidence that a valid arrest warrant

-23-
issued upon a neutral magistrate's review of facts allegedly

establishing probable cause. By contrast, Burke has adduced no

evidence demonstrating that no warrant was issued apart from his

own affidavit stating that he never saw a warrant. There is no

requirement, either under the Constitution or under Massachusetts

law, that a copy of the arrest warrant automatically be given to

the person arrested at the time of the arrest. Burke's sworn

statement, standing alone in the face of the defendants'

submissions, cannot bear the evidentiary weight Burke seeks to give

it. Because there is no genuine dispute regarding the question

whether a valid arrest warrant was issued, the record fails to

support Burke's allegation that he was deprived of his

constitutional right to be arrested at home only upon issuance of

a warrant.

2. Existence of Probable Cause

While we must "pay substantial deference to judicial

determinations of probable cause" made by a magistrate issuing a

warrant, we "must still insist that the magistrate . . . not serve

merely as a rubber stamp for the police." Aguilar v. Texas, 378

U.S. 108, 111 (1964), abrogated on other grounds by Illinois v.

Gates, 462 U.S. 213 (1983). Burke argues that even if a neutral

magistrate issued a warrant for his arrest, he was nevertheless

subjected to deprivation of his Fourth Amendment right because the

"totality of the circumstances," Gates 462 U.S. at 238, as set

-24-
forth in the warrant application, was insufficient to establish

probable cause for his arrest. See, e.g., United States v. Zayas-

Diaz, 95 F.3d 105, 111 (1st Cir. 1996) ("The issuing magistrate

ordinarily considers only the facts set forth in supporting

affidavits accompanying [a search] warrant application.").15

"Probable cause determinations are, virtually by

definition, preliminary and tentative." Acosta v. Ames Dep't

Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004). The exact degree of

certainty required to establish probable cause is difficult to

quantify; it falls somewhere between "'bare suspicion' [and] what

would be needed to 'justify . . . conviction.'" Valente, 332 F.3d

at 32 (quoting Brinegar v. United States, 338 U.S. 160, 175

(1949)). As always, "[t]he touchstone of the Fourth Amendment is

reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991).

Probable cause thus exists if "the facts and circumstances within

the relevant actors' knowledge and of which they had reasonably

reliable information" would suffice to "warrant a prudent person in

believing" that a person has committed or is about to commit a

crime. Roche, 81 F.3d at 254.

The police defendants insist that the magistrate had

before him ample facts and circumstances establishing probable

15
Burke recognizes that the issuance of a valid arrest warrant
bears significantly on the objective reasonableness of the police
defendants' conduct even if there was no probable cause to arrest
Burke, an issue we address below in Part III.C.

-25-
cause for Burke's arrest. Det. Dolan summarized the basis for

probable cause in his application for an arrest warrant as follows:

On 12-01-98 Irene Kennedy was brutally
murdered in Bird Park. A State Police K-9
unit conducted a track from the victim. The
K-9 [led] directly to Edmund Burke's front
door [at his street address].
Edmund was interviewed and he said that
he had been sleeping all morning[.] Our
investigation revealed two independent
witnesses who saw him outside of his house in
his yard on the morning of the murder. They
also described the clothing he was wearing.
He has denied owning clothing of this type.
Edmund has changed his story several
times during the course of this investigation
to try and explain his actions. They are all
inconsistent.
Preliminary autopsy reports indicated
that Irene Kennedy had been bitten on her
breasts. These bites appear to be human.
They were examined by Forensic Dentist Kate
Crowley of the Medical Examiners Office and
compared to impressions of Edmund Burke's
teeth.
She requested that Dr. [Lowell] Levine
examine them also. He is the leading expert
in the country and has testified as such[.]
He is a Forensic Dentist with over thirty
years of experience. He determined that the
marks were bite marks made by human teeth. He
has also determined with reasonable scientific
certainty that [they] were made by Edmund
Burke.
Based on the above facts, there is
probable cause to believe that Edmund Burke
entered Bird Park on the morning of 12-1-98
and brutally murdered Irene Kennedy. I am
requesting a warrant for his arrest for
murder.

While Burke disputes the accuracy and reliability of all of the

purported facts described in Det. Dolan's summary, he assails in

particular the inclusion of an inaccurate inculpatory bite mark

-26-
opinion. Bite mark evidence, Burke argues, is so unreliable that

it could not reasonably support probable cause.

The existence of probable cause is based on the facts and

circumstances known at the time of arrest rather than in hindsight.

Roche, 81 F.3d at 254. Moreover, forensic evidence relied upon by

the police to establish probable cause to arrest need not be

unassailably accurate. "[O]ne who asserts the existence of

probable cause is not a guarantor either of the accuracy of the

information upon which he has reasonably relied or of the ultimate

conclusion that he reasonably drew therefrom." Id. at 255. Burke

points to the affidavit of his own proposed trial expert, Dr.

Richard R. Souviron, in which he states that "[b]ite mark evidence,

if it is the only evidence of identity, cannot be used to

positively identify a possible perpetrator to the exclusion of all

others within a significant population."16 This categorical

statement about the limited probative value of bite mark evidence

to inculpate a suspect does not establish that Dr. Levine's

specific bite mark comparison in this case failed to support

probable cause when considered in light of the other available

evidence. In many types of forensic analysis, an "examiner can do

16
The magistrate judge found Dr. Souviron's affidavit to be
untimely filed after the deadline for disclosure of proposed expert
testimony. See Burke, 2003 U.S. Dist. LEXIS 24895 at *9 n.133.
The magistrate judge nevertheless considered the affidavit for
purposes of addressing Burke's claim that Dr. Levine intentionally
fabricated or recklessly exaggerated his bite mark opinion. We
discuss that claim below in Part IV.B.1.

-27-
no more than speak of probabilities." Valente, 332 F.3d at 33

(handwriting comparison, "a less rigorous means of identification"

than fingerprint analysis, may be used to support probable cause);

see also Roche, 81 F.2d at 255 (inculpatory voice identification

may support probable cause). The bite mark evidence was an

appropriate factor to be weighed in the probable cause calculus,

and the "totality of the circumstances," Gates, 462 U.S. at 238, as

stated in Det. Dolan's summary in support of the arrest warrant

application, sufficiently established probable cause.

3. Misleading Warrant Application Submitted with
Intentional or Reckless Disregard for the Truth

Burke alleges that even if a valid arrest warrant was

issued on the basis of an application that set forth sufficient

facts and circumstances to establish probable cause, the police

defendants nevertheless violated his Fourth Amendment right. Burke

alleges that the police defendants, with intentional or reckless

disregard for the truth, included inculpatory bite mark evidence

that they knew or had reason to know was inaccurate in the warrant

application and excluded exculpatory DNA evidence that would have

eliminated probable cause from the same application, thereby

requiring the magistrate to make his probable cause decision on the

basis of a tainted submission.

"A Fourth Amendment violation may be established if a

[plaintiff] can show that officers acted in reckless disregard,

with a 'high degree of awareness of [the] probable falsity'" of

-28-
statements made in support of an arrest warrant. Forest v.

Pawtucket Police Dep't, 377 F.3d 52, 58 (1st Cir. 2004) (citation

omitted), cert. denied, 2005 U.S. LEXIS 1507 (Feb. 22, 2005).

Similarly, the intentional or reckless omission of material

exculpatory facts from information presented to a magistrate may

also amount to a Fourth Amendment violation. DeLoach v. Bevers,

922 F.2d 618, 622 (10th Cir. 1990) (upholding verdict for plaintiff

where jury could have inferred that defendant police detective

deliberately or recklessly excluded the exculpatory opinion of an

important medical expert from the affidavit). Reckless disregard

for the truth in the submission of a warrant application may be

established where an officer "in fact entertained serious doubts as

to the truth of the allegations" or where "circumstances evinc[ed]

obvious reasons to doubt the veracity of the allegations" in the

application. United States v. Ranney, 298 F.3d 74, 78 (1st Cir.

2002) (internal quotation marks omitted). In the case of allegedly

material omissions, "recklessness may be inferred where the omitted

information was critical to the probable cause determination."

Golino v. New Haven, 950 F.2d 864, 871 (2d Cir. 1991); see also

Wilson v. Russo, 212 F.3d 781, 783 (3d Cir. 2000) ("omissions are

made with reckless disregard for the truth when an officer

recklessly omits facts that any reasonable person would know that

a judge would want to know" when deciding whether to issue a

warrant).

-29-
 Allegations of intentional or reckless misstatements or

omissions implicate the very truthfulness, not just the

sufficiency, of a warrant application. If such allegations prove

to be true, a court owes no deference to a magistrate's decision to

issue an arrest warrant because, "where officers procuring a

warrant have deliberately misled the magistrate about relevant

information, no magistrate will have made a prior probable cause

determination" based on the correct version of the material facts.

Velardi v. Walsh, 40 F.3d 569, 574 n.1 (2d Cir. 1994).

The requirement that the contested facts included in or

omitted from a warrant application be material to the probable

cause determination to establish a Fourth Amendment violation

derives from the standard announced for the suppression of evidence

in Franks v. Delaware, 438 U.S. 154 (1978). There, the Supreme

Court held that a criminal defendant who establishes that a police

officer procured a search warrant by intentionally or recklessly

making materially false statements in a supporting affidavit is

entitled to the suppression of evidence so long as "the remaining

content [in the affidavit] is insufficient" to support probable

cause. Id. at 156. Appellate courts have consistently held that

the Franks standard for suppression of evidence informs the scope

of qualified immunity in a civil damages suit against officers who

allegedly procure a warrant based on an untruthful application.

See, e.g., Aponte Matos v. Toledo-Dávila, 135 F.3d 182, 185 (1st

-30-
Cir. 1998) (where allegedly false statement was necessary to

establish probable cause, defendant "will not be protected by

qualified immunity" if plaintiffs prevail at trial on claim that

defendant lied in search warrant application); Olson v. Tyler, 771

F.2d 277, 282 (7th Cir. 1985) ("Where the judicial finding of

probable cause is based solely on information the officer knew to

be false or would have known was false had he not recklessly

disregarded the truth, not only does the arrest violate the fourth

amendment, but the officer will not be entitled to [qualified]

immunity."). As in the suppression context, "[t]o determine . . .

materiality of the misstatements and omissions, we excise the

offending inaccuracies and insert the facts recklessly omitted, and

then determine whether or not the 'corrected' warrant affidavit

would establish probable cause." Wilson, 212 F.3d at 789.

a. Inclusion of Inaccurate Bite Mark Evidence

Burke argues that the police defendants should have known

that Dr. Levine's bite mark opinion was inaccurate and unreliable,17

and that they acted with reckless disregard for the truth by

including that evidence in the arrest warrant application.18 As we

have discussed, bite mark evidence may be considered as a factor in

17
We discuss and reject Burke's independent claims that Drs.
Levine and Crowley intentionally or recklessly fabricated
inculpatory bite mark evidence below in Part IV.
18
The police defendants do not dispute that Dr. Levine's bite
mark opinion was central to the existence of probable cause.

-31-
the probable cause analysis. The summary filed by Det. Dolan along

with his application for an arrest warrant describes Dr. Levine as

"the leading expert in the country [who] has testified as such[.]

He is a Forensic Dentist with over thirty years of experience."

While Burke assails the reliability of bite mark analysis

generally, he does not dispute Dr. Levine's credentials or point to

any evidence that the police had any reason to doubt Dr. Levine's

opinion. Burke thus fails to establish that "circumstances

evinc[ed] obvious reasons to doubt the veracity" of the inculpatory

bite mark evidence, and fails to preserve a genuine dispute on his

claim that inaccurate evidence was recklessly included in the

warrant application in violation of his Fourth Amendment rights.

Ranney, 298 F.3d at 78 (internal quotation marks and citations

omitted).19

19
While Det. Dolan's probable cause summary relates that Dr.
Levine found a match "with reasonable scientific certainty" with
respect to both bite marks, Dr. Levine maintains that he rendered
his opinion to this degree of certainty only with respect to the
bite mark on the victim's left breast. See infra Part IV.B.1. The
affidavit in support of a search warrant produced by Sgt. Shea and
Trooper Jennings, upon which Det. Dolan relied in preparing his
arrest warrant application, also states that Dr. Levine rendered an
opinion to a "reasonable degree of scientific certainty that both
bite marks found on the body . . . were caused by Edmund Burke"
(emphasis added). Sgt. Shea testified that he asked Trooper
McDonald to call Dr. Levine "and get the exact wording" of his bite
mark opinion for inclusion in the search warrant affidavit.
Trooper McDonald, in turn, testified at his deposition that Dr.
Levine gave his opinion to a "reasonable degree of scientific
certainty," but that Dr. Levine could have said "[bite] mark or
marks, I don't know." Burke does not specifically allege on appeal
that Trooper McDonald intentionally or recklessly misrepresented
Dr. Levine's bite mark opinion, rendered with a "reasonable degree

-32-
 b. Omission of Exculpatory DNA Analysis Results

Burke's most serious challenge to his arrest involves his

claim that crucial exculpatory DNA evidence was known to the police

at the time of his arrest but omitted from Det. Dolan's statement

of probable cause, thus precluding review by a neutral magistrate

of all the facts material to the existence of probable cause.

Burke argues that the inculpatory bite mark evidence could not

rationally co-exist with the exculpatory DNA evidence in his case.

Given the greater certainty of the DNA analysis results, he argues,

the inclusion of those results in the warrant application would

have eliminated probable cause. Moreover, Burke argues, because

the exculpatory DNA evidence was "critical to the probable cause

determination," Golino, 950 F.2d at 871, a reasonable jury could

infer that its omission from the warrant application submitted to

the magistrate was made with deliberate or reckless disregard for

the truth.

Maine Crime Lab chemist Calicchio's uncontroverted

deposition testimony was that DNA analysis may exclude a person as

a source of DNA with virtual certainty: "We like to say an

exclusion is absolute." In a report dated December 12, Calicchio

memorialized the DNA results she had communicated by telephone to

Trooper McDonald:

of scientific certainty," as referring to two bite marks rather
than one.

-33-
 A mixture of male and female DNA profiles was
obtained from the breast swabbings (Items #1A
and 1B). The predominant DNA profile matches
the DNA profile of Irene Kennedy. The minor
component of the DNA profile does not match
the DNA profile of Edmund Burke.

According to these results, Burke could not have been the source of

the bite mark on the victim's left breast unless he bit the victim

without leaving his own DNA behind and another man somehow

deposited his DNA in the bite mark without producing a bite mark of

his own.20 Based on the combination of forensic evidence available

in this case, a reasonable jury assessing the "totality of the

circumstances," Gates, 462 U.S. at 238, could find that the DNA

evidence was "so probative [it] would vitiate probable cause," and

that its omission reflected at least reckless disregard for the

truth. DeLoach, 922 F.2d at 623.

Of course, for purposes of the probable cause analysis,

the exculpatory DNA evidence must also have been known to the

police at the time of the warrant application. See Roche, 81 F.3d

at 254. Burke alleges that at least one officer central to the

investigation, Trooper McDonald, knew that DNA analysis had

conclusively excluded him as the source of the saliva in the bite

mark and, consequently, as the murderer, as early as four hours

prior to Burke's arrest, and two hours before any warrant

applications were prepared. Calicchio's contemporaneous notes show

20
Only the bite mark on the victim's left breast was swabbed
for DNA testing.

-34-
that Trooper McDonald called her at 11:00 AM on December 10 to find

out the DNA analysis results.21 About two hours later, at 1:15 PM,

Trooper McDonald communicated Dr. Levine's bite mark opinion, but

not the DNA results, to Sgt. Shea and Trooper Jennings for

inclusion in an affidavit in support of a search warrant. Trooper

McDonald testified at his deposition that he also communicated Dr.

Levine's bite mark opinion to Det. Dolan at some point, and that

Det. Dolan would have relied on the information in the search

warrant affidavit to prepare his arrest warrant application.

In contrast to Calicchio's account, Trooper McDonald

testified at deposition that he did not receive the DNA results

until the day after Burke's arrest, and that he immediately

communicated the exculpatory results, through Sgt. Shea, to the

prosecutor during Burke's arraignment. Calicchio's notes document

only one phone conversation on December 11 relating to the case,

with Massachusetts Crime Lab chemist Richard Iawicci, who called

21
Calicchio explained at deposition that she routinely
documents business-related phone calls by writing down the date,
time, and general subject matter of incoming and outgoing calls.
She also testified that she knew the Kennedy murder case was a high
priority, and that she would have contacted Trooper McDonald as
soon as the DNA results were available. Based on computer records
printed and dated during the DNA analysis, Calicchio testified that
she knew the exculpatory results as early as 9:00 AM on December
10. Calicchio's notes also show that she spoke to Trooper McDonald
on December 9 to notify him that the samples contained sufficient
DNA to test and that she would call him the next day with the
results.

-35-
her at 11:15 AM, after the DNA results were disclosed during

Burke's arraignment.

Viewing the evidence in the light most favorable to

Burke, the record supports the inference that exculpatory DNA

analysis that directly contradicted the inculpatory bite mark

evidence was known to at least one officer centrally involved in

the investigation, and was intentionally or recklessly withheld

from the officer who was actually preparing the warrant

application, resulting in its omission from the application.

Accordingly, for purposes of the summary judgment analysis, and in

answer to the first question of the qualified immunity inquiry,

Burke has proffered evidence sufficient to support a finding that

he was arrested without probable cause in violation of his Fourth

Amendment right. See Limone, 372 F.3d at 44 (first question in

qualified immunity analysis is "whether the plaintiff's

allegations, if true, establish a constitutional violation").

Whether any of the police defendants may be liable for damages

resulting from this constitutional violation turns on the balance

of the qualified immunity inquiry.22

22
Neither the magistrate judge nor the district court
designated the grants of summary judgment to the police defendants
as grants of qualified immunity based on Burke's failure to
establish a constitutional violation. The magistrate judge
recommended, however, that even if Burke did establish such a
violation, Det. Dolan, Sgt. Shea, and Trooper McDonald should
receive qualified immunity on the ground that their conduct was
objectively reasonable under clearly established law. See Burke,
2003 U.S. Dist. LEXIS 24897, at *25 (Det. Dolan); Burke, 2003 U.S.

-36-
B. Clearly Established Law

The second prong of the qualified immunity inquiry

"focus[es] on whether [an] officer had fair notice that [his]

conduct was unlawful." Brosseau v. Haugen, 125 S. Ct. 596, 599

(2004). Uniquely among the defendant police officers, Trooper

McDonald argues that he had no constitutional duty to disclose

exculpatory evidence to anyone because he was neither an affiant

for the arrest warrant nor technically an arresting officer (merely

a searching officer). Thus, we must ask "whether the state of the

law at the time of the putative violation afforded [Trooper

McDonald] fair warning that his . . . conduct was

unconstitutional." Limone, 372 F.3d at 45.23

"It has long been well established that . . . a material

fabrication [in a warrant application] violates the Warrant Clause

of the Fourth Amendment." Aponte Matos, 135 F.3d at 185. As the

Dist. LEXIS 24896, at *31, *41 (Sgt. Shea and Trooper McDonald).
The magistrate judge also determined that Det. Bausch was neither
an affiant for the arrest warrant nor an arresting officer and
therefore bore no liability regardless of whether Burke established
a constitutional violation. Burke, 2003 U.S. Dist. LEXIS 24897, at
*31. The statement of undisputed facts submitted by the MSP
defendants, including Sgt. Shea, who was admittedly an arresting
officer, lists Det. Bausch as the only other arresting officer.
Viewing the facts in the light most favorable to Burke, we consider
Det. Bausch to be one of the officers who arrested Burke and reach
his qualified immunity defense.
23
The other police defendants raise no argument about the
absence of clearly established law. Instead, they focus on the
third prong of the qualified immunity analysis, asserting that
there was nothing unreasonable about their conduct. We address
this argument in Part III.C.

-37-
Supreme Court explained in Franks, "[when] the Fourth Amendment

demands a factual showing sufficient to comprise 'probable cause,'

the obvious assumption is that there will be a truthful showing."

438 U.S. at 164-65 (quotation marks and citation omitted) (emphasis

in original). In the absence of such a requirement, the

interposition of an objective magistrate into the arrest process

would serve little purpose. This court has also applied the Franks

standard to material omissions from a warrant application, which

are likewise prohibited by the Fourth Amendment. See United States

v. Rumney, 867 F.2d 714, 720 (1st Cir. 1989).

Because Franks involved allegations that an affidavit in

support of a search warrant contained false statements by the

affiant, the Court's ruling requiring suppression of evidence

procured through a misleading warrant application spoke in terms of

impeachment only "of the affiant, not of any nongovernmental

informant." 438 U.S. at 171. The Supreme Court later clarified,

however, that courts deciding motions to suppress evidence despite

the issuance of a valid warrant must "consider the objective

reasonableness, not only of the officers who eventually executed a

warrant, but also of the officers who originally obtained it or who

provided information material to the probable-cause determination."

United States v. Leon, 468 U.S. 897, 923 n. 24 (1984). Just as a

police officer who seeks an arrest warrant despite the lack of

probable cause may not "excuse his own default by pointing to the

-38-
greater incompetence of [a] magistrate" who erroneously issues a

warrant, Malley, 475 U.S. at 346 n.9, a police defendant who acts

intentionally or with reckless disregard for the truth may not

insulate himself from liability through the objectively reasonable

conduct of other officers. See Leon, 468 U.S. at 923 n.24

("Nothing in our opinion suggests, for example, that an officer

could obtain a warrant" based on an insufficient affidavit "and

then rely on colleagues who are ignorant of the circumstances under

which the warrant was obtained to conduct the search.").

Thus, Trooper McDonald's argument that he had no

constitutional duty to disclose exculpatory evidence to anyone

prior to Burke's arrest because he was neither an affiant for the

arrest warrant nor technically an arresting officer is unavailing.

However Trooper McDonald chooses to characterize or minimize his

role, the summary judgment record establishes that he was centrally

involved in the collection of evidence to be used to secure an

arrest warrant for Burke.24 At the time of Burke's arrest, his

24
Significantly, the record shows that Walpole officers were
not involved in the collection or analysis of forensic evidence
during the murder investigation. At the same time, Sgt. Shea of
the Massachusetts State Police testified at deposition that the
existing practice was to have a local officer apply for the arrest
warrant: "[W]henever we . . . arrest somebody for murder, the local
[police department] does the arrest warrant. It is common." Under
these circumstances, on Trooper McDonald's theory, any MSP Trooper
-- as the only possible source of forensic evidence in support of
a local officer's application for an arrest warrant -- could easily
fabricate forensic evidence to procure a warrant in violation of a
suspect's Fourth Amendment rights while insulating himself against
civil suit in his personal capacity for damages.

-39-
constitutional right to be free from arrest pursuant to a warrant

that would not have issued if material exculpatory evidence had

been provided to the magistrate was clearly established, as was

Trooper McDonald's concomitant constitutional duty of full

disclosure of exculpatory information to fellow officers seeking

warrants based on probable cause.

C. The Police Defendants' Allegedly Unconstitutional Conduct

The third prong of the qualified immunity analysis

"channels the analysis from abstract principles to the specific

facts of a given case." Cox, 391 F.3d at 31. Because "[t]he

concern of the immunity inquiry is to acknowledge that reasonable

mistakes can be made as to the legal constraints on particular

police conduct," Saucier v. Katz, 533 U.S. 194, 205 (2001), even

where a plaintiff has shown, for purposes of withstanding summary

judgment, that a government official may have deprived him of a

clearly established constitutional right, qualified immunity

remains available to defendants who demonstrate that they acted

objectively reasonably in applying clearly established law to the

specific facts they faced. Having determined for the purpose of

the qualified immunity analysis that Burke was arrested pursuant to

a warrant issued because of reckless or intentional omissions of

material facts from the warrant application (the constitutional

violation), we proceed to analyze each police defendant's

individual conduct in this case, focusing on whether each

-40-
"officer's mistake as to what the law requires [was] reasonable."

Id.

a. Det. Dolan, Det. Bausch, and Sgt. Shea

The record fails to support any reasonable inference that

Det. Dolan, who obtained the arrest warrant, or Sgt. Shea and Det.

Bausch, the arresting officers, had any knowledge of or reason to

know about the exculpatory DNA results prior to Burke's arrest.

Nor did they have any reason to doubt the reliability of Dr.

Levine's bite mark opinion.

It is objectively reasonable for officers to seek an

arrest warrant "so long as the presence of probable cause is at

least arguable." Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.

1991). Because the facts known to Det. Dolan, as set forth in his

summary of probable cause, formed a plausible basis for seeking an

arrest warrant, he is entitled to qualified immunity. Similarly,

"[w]hen officers make an arrest subject to a warrant . . . even if

probable cause is lacking, [they] are entitled to qualified

immunity unless the warrant application is so lacking in indicia of

probable cause as to render official belief in its existence

unreasonable." Abreu-Guzman v. Ford, 241 F.3d 69, 73 (1st Cir.

2001) (internal quotation marks omitted). Both Det. Bausch and

Sgt. Shea reasonably relied on the existence of an apparently valid

warrant and are therefore entitled to qualified immunity.

-41-
 b. Trooper McDonald

When viewed in Burke's favor, the facts in the record

reveal that Trooper McDonald knew the DNA analysis had excluded

Burke as a suspect on the morning of December 10, but failed to

communicate that information to the officers preparing applications

for search and arrest warrants despite his awareness of their

ongoing preparation and ample opportunity to communicate the newly

acquired information. Trooper McDonald's deposition testimony

reveals that he relayed Dr. Levine's inculpatory bite mark opinion

to Trooper Jennings and Sgt. Shea for inclusion in their affidavit

in support of a search warrant about two hours after he received

the DNA results from Calicchio, and that he was aware that Det.

Dolan would rely on the information in the search warrant affidavit

to prepare an arrest warrant application.25

While Trooper McDonald testified at his deposition that

he received the DNA results on the day after Burke's arrest, he

also testified that he knew their exculpatory significance and that

he immediately communicated the results, through Sgt. Shea, to the

prosecution. At his deposition, Trooper McDonald responded to

questioning as follows:

25
Trooper McDonald also testified at deposition that he
communicated Dr. Levine's inculpatory bite mark opinion to Det.
Dolan at some point during the investigation, but he could not
recall whether this occurred before or after Det. Dolan applied for
the arrest warrant.

-42-
 A. I spoke with the Maine state police
directly, the lab.

Q. And they told you they excluded [Burke]?

A. Excluded. The profile doesn't match.

[. . . ]

Q. And it's your testimony you communicated
that immediately to [the prosecution]?

A. Yes.

Trooper McDonald also testified that when he found out the results

of the DNA analysis, he called Dr. Levine to ask whether he still

stood by his bite mark opinion in light of the conflicting DNA

results.26 The record thus shows that Trooper McDonald "correctly

perceive[d] all of the relevant facts," Saucier, 533 U.S. at 195,

including the DNA results and their exculpatory significance.

Given the clearly established prohibition on material

omissions by officers central to an investigation from an arrest

warrant application, and given Trooper McDonald's knowledge of the

crucial facts, we cannot say, as a matter of law, that a

reasonable, similarly situated officer would feel free to

communicate only inculpatory bite mark evidence to fellow officers

seeking warrants on probable cause while withholding his knowledge

of directly contradictory DNA results. Accordingly, Trooper

26
Dr. Levine testified that he received a call from Trooper
McDonald about the DNA analysis a day or so after rendering his
bite mark opinion on December 10.

-43-
McDonald was not entitled to a favorable summary judgment ruling on

his qualified immunity defense.

IV. CLAIMS AGAINST THE FORENSIC ODONTOLOGISTS

A. Under Color of State Law

Dr. Levine argues that he is entitled to summary judgment

because he was not acting "under color of state law" within the

meaning of 42 U.S.C. § 1983 in his capacity as an independent

consultant to the District Attorney's office or, alternatively,

that if he was acting under color of state law, he is nevertheless

entitled to immunity from suit. Private citizens may be liable for

acts and omissions committed "under color of state law" where they

are "jointly engaged with state officials in the prohibited

action." Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982)

(citation omitted). "A private party's conduct is attributable to

the state if the state has so far insinuated itself into a position

of interdependence with [the private party] that it must be

recognized as a joint participant in the challenged activity."

Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998) (internal

quotation marks and citation omitted, alteration in original).

Dr. Levine rendered a bite mark opinion only because the

Norfolk District Attorney's Office, at the recommendation of the

state's own forensic odontologist, sought his assistance with the

-44-
analysis of forensic evidence in a criminal investigation.27 As a

result, Dr. Levine is "both subject to suit under section 1983 and

eligible for the balm of qualified immunity." Id. (private

psychiatrists under contract with the police department to evaluate

officers' mental health are state actors and entitled to qualified

immunity); see also Rodriques v. Furtado, 950 F.2d 805, 815 (1st

Cir. 1991) (private physician from whom police requested assistance

in conducting a body cavity search pursuant to a search warrant

entitled to qualified immunity). We turn, then, to the initial

question in the qualified immunity analysis, whether "all the

uncontested facts and any contested facts looked at in [Burke's]

favor" allege a constitutional violation. Riverdale Mills Corp.,

392 F.3d at 62.

B. Deprivation of a Constitutional Right

Burke alleges that Dr. Levine and Dr. Crowley each

deprived him of his independent constitutional right to be free

from arrest on the basis of knowingly or recklessly exaggerated

inculpatory bite mark evidence. While the police defendants may

have had no reason to doubt the accuracy of the bite mark evidence

included in the arrest warrant application, Burke asserts that both

Dr. Levine and Dr. Crowley had ample reason to doubt the validity

27
Dr. Crowley does not dispute that she acted under color of
state law.

-45-
of their own bite mark analyses for use in determining the

existence of probable cause.28

The intentional or reckless fabrication of inculpatory

evidence or omission of material exculpatory evidence by a forensic

examiner in support of probable cause may amount to a

constitutional violation. See Galbraith v. Cty. of Santa Clara,

307 F.3d 1119, 1126 (9th Cir. 2002) ("[A] coroner's reckless or

intentional falsification of an autopsy report that plays a

material role in the false arrest and prosecution of an individual

can support a claim under 42 U.S.C. § 1983 and the Fourth

Amendment."); Pierce v. Gilchrist, 359 F.3d 1279, 1296 (10th Cir.

2004) (plaintiff alleging post-arrest fabrication of hair sample

opinion states a claim against forensic chemist for

unconstitutional prosecution, of which one element is lack of

probable cause). We thus inquire whether the facts in the record,

when viewed in the light most favorable to Burke, permit the

inference that either Dr. Levine or Dr. Crowley rendered a bite

mark opinion with deliberate falsity or reckless disregard for the

truth.

To support his allegations, Burke must show that Dr.

Levine or Dr. Crowley "in fact entertained serious doubts as to the

28
The record reveals no evidence that either Dr. Levine or Dr.
Crowley knew the exculpatory DNA analysis results prior to Burke's
arrest; accordingly, we exclude the DNA results from our analysis
of Burke's claims against them.

-46-
truth" of their bite mark opinions or that "circumstances evinc[ed]

obvious reasons to doubt the veracity" of those results. Ranney,

298 F.3d at 78 (internal quotation marks omitted). To constitute

a Fourth Amendment violation, the allegedly fabricated or

exaggerated evidence must also be material to the probable cause

determination. See, e.g., Pierce, 359 F.3d at 1287-88 (on motion

to dismiss claim of unconstitutional prosecution, "we cannot say

that the false information supplied by [forensic chemist] and the

accurate exculpatory information disregarded by [her] were not

significant enough to prejudice [plaintiff's] constitutional

rights"); Aponte Matos, 135 F.3d at 185 (police officer's "material

fabrication [in a warrant application] violates the Warrant Clause

of the Fourth Amendment.").

1. Dr. Levine

Burke alleges that Dr. Levine acted with deliberate or

reckless disregard for the truth by overstating the degree of

certainty with which the mold of Burke's teeth matched the bite

mark on the victim's left breast.29 Burke attempts to demonstrate

that Dr. Levine was at least reckless by (1) referring to Dr.

29
While Trooper McDonald testified at his deposition that he
believed Dr. Levine had rendered an opinion that both bite marks
matched Burke's teeth to a "reasonable degree of scientific
certainty," see supra note 19, Burke does not ground his argument
on Dr. Levine's communication of an opinion on both bite marks to
a "reasonable degree of scientific certainty," focusing instead on
Dr. Levine's opinion regarding the bite mark on the victim's left
breast.

-47-
Levine's own statements made during the instant litigation, (2)

assailing the terminology with which Dr. Levine rendered his

opinion before Burke's arrest, and (3) referring to the statements

of Burke's own expert witness regarding the process of bite mark

analysis.

Burke points to Dr. Levine's affidavit, filed on March

16, 2000 in support of a motion to dismiss Burke's claims against

him for lack of personal jurisdiction (based on Dr. Levine's New

York residence and alleged lack of contacts with Massachusetts).

In his affidavit, Dr. Levine stated that he told police

investigators on December 10, 1998 that he "could not rule out Mr.

Burke" as a source of the bite marks. At their depositions, Chief

Betro and Trooper McDonald indicated that they viewed this

affidavit as effectively disavowing the opinion that Dr. Levine had

rendered for them with a "reasonable degree of scientific

certainty" prior to Burke's arrest.

On July 7, 2000, Dr. Levine supplemented his affidavit of

March 16, 2000 to clarify that on December 10, 1998, "I could not

rule out Mr. Burke as a suspect. Both of the two bite marks on

[the victim's] body were consistent with his dentition. One of the

bite marks was consistent with his dentition to a high level of

probability, or a reasonable degree of scientific certainty." Dr.

Levine thus does not deny that he rendered his opinion on December

10, 1998 about the bite mark on the victim's left breast with a

-48-
"reasonable degree of scientific certainty." At the same time,

there is a significant difference between opining to a "reasonable

degree of scientific certainty" that Burke's teeth matched one of

the bite marks and simply opining that "I could not rule out Mr.

Burke as a suspect," both of which statements are included in Dr.

Levine's July 7, 2000 affidavit. Dr. Levine maintains that the

opinion he communicated to police on December 10, 1998 to a

"reasonable degree of scientific certainty" before Burke's arrest

was and remains accurate. At his deposition, Dr. Levine

demonstrated his bite mark analysis methodology by comparing the

mold of Burke's teeth with the enlarged photographs and testified

that he adhered to his original opinion that Burke's teeth matched

the bite mark on the victim's left breast to a reasonable degree of

scientific certainty.

Still, Burke asserts that Dr. Levine used the phrase

"reasonable degree of scientific certainty" when, as revealed by

the clarifying affidavit of July 7, 2000, he in fact meant a "high

level of probability." Burke argues that Dr. Levine's misuse of

terminology exhibited reckless disregard for his obligation to

communicate his actual level of certainty about the bite mark

match. "'Reasonable degree of scientific certainty' is a plastic

phrase." Buie v. McAdory, 341 F.3d 623, 625 (7th Cir. 2003). That

fact is evident from Dr. Levine's attempts to explain the meaning

he assigns to the term. At his deposition, Dr. Levine testified

-49-
that he uses "reasonable degree of scientific certainty" to mean

"high degree of probability," a higher standard than "could not

rule out as a suspect." Dr. Levine's explanation of his

terminology comports with the non-binding "Bite-Mark Terminology

Guidelines" of the American Board of Forensic Odontologists

("ABFO"), of which Dr. Levine is a founding diplomate and member,

which equate the related terms "reasonable medical certainty" and

"high degree of certainty." As Burke points out, however, the

guidelines further define both terms to mean "virtual certainty; no

reasonable or practical possibility that someone else did it."30

By using the term "reasonable degree of scientific certainty,"

Burke reasons, Dr. Levine communicated a higher degree of certainty

("virtual certainty," according to a passage in the ABFO

guidelines) than he actually felt (only that he "could not rule out

Mr. Burke as a suspect," according to his March 16, 2000

30
The "Bite-Mark Terminology Guidelines," adopted by the
American Board of Forensic Odontologists in 1995, thus conflate
several arguably distinct levels of certainty ("reasonable medical
certainty," "high degree of certainty," and "virtual certainty")
into the same high standard. The guidelines further describe
"reasonable medical certainty" as

convey[ing] the connotation of virtual
certainty or beyond reasonable doubt. The
term deliberately avoids the message of
unconditional certainty only in deference to
the scientific maxim that one can never be
absolutely positive unless everyone in the
world was examined or the expert was an eye
witness.

(Emphasis added.)

-50-
affidavit). At his deposition, Dr. Levine "clarified" that while

he uses "reasonable degree of scientific certainty" and "high

degree of probability" interchangeably, his left breast bite mark

opinion never met the high standard of the ABFO guidelines'

definition of "reasonable medical certainty" -- namely, that there

was "no reasonable or practical possibility that someone else"

other than Burke made the bite mark on the victim's left breast.

We need not determine whether Dr. Levine's terminology or

the terminology recommended by the ABFO guidelines is correct.

Neither the ABFO guidelines' definition nor Dr. Levine's alternate

term, "high degree of probability," appears in Det. Dolan's summary

of probable cause in the arrest warrant application. The summary

merely states that Dr. Levine "determined with reasonable

scientific certainty that [the bite marks] were made by Edmund

Burke." In the absence of any indication to the contrary, we must

assume that the magistrate who issued the arrest warrant assigned

no more than the commonly accepted meaning among lawyers and judges

to the term "reasonable degree of scientific certainty" -- "a

standard requiring a showing that the injury was more likely than

not caused by a particular stimulus, based on the general consensus

of recognized [scientific] thought." Black's Law Dictionary 1294

(8th ed. 2004) (defining "reasonable medical probability," or

"reasonable medical certainty," as used in tort actions). That

standard, of course, is fully consistent with the probable cause

-51-
standard. See Roche, 81 F.3d at 254 ("By definition, the

determination [of probable cause] does not require scientific

certainty.").

Finally, Burke relies on the affidavit of his own chosen

expert, Dr. Souviron, which states that bite mark evidence alone

cannot be used to "positively identify a possible perpetrator to

the exclusion of all others within a significant population."31 The

record does not support the inference that Dr. Levine communicated,

or risked communicating, that Burke was the source of the bite mark

"to the exclusion of all others within a significant population."

Rather, he opined that Burke's teeth matched the bite mark to a

"reasonable degree of scientific certainty" without specifying the

number of individuals who could have made the same bite mark. Dr.

Souviron was unable to render his own independent opinion comparing

the mold of Burke's teeth to the photographs of the bite mark

because, he explained, "[b]ased on my knowledge and expertise, I

concluded that the photographs I was provided with were not the

photographs that were used originally to make the evaluation of

this case. . . . I would need the particular photographs in order

to be able to perform any in-depth identification." Burke points

31
As we have noted, the magistrate judge considered the
affidavit to be untimely filed after the deadline for disclosure of
proposed expert testimony. Nevertheless, the magistrate judge
considered the affidavit and found that it did not establish that
Dr. Levine recklessly or deliberately rendered a false bite mark
opinion. See Burke, 2003 U.S. Dist. LEXIS 24895 at *9 n.133.

-52-
out that copies of the enlarged photographs were not made available

to him during discovery through no fault of his own. But even a

contrary expert opinion from Dr. Souviron based on the exact same

materials used by Dr. Levine would not necessarily shed any light

on how Dr. Levine performed his own analysis and arrived at his own

conclusions at the time he rendered his bite mark opinion.

Viewing the evidence in the light most favorable to

Burke, we conclude that the record reveals no support for an

inference that Dr. Levine's methodology or judgment were so clearly

flawed that he should have harbored serious doubts about the

reliability of his resulting opinion. Because Burke has failed to

generate a genuine dispute on the threshold question of whether Dr.

Levine violated his Fourth Amendment rights by rendering his bite

mark opinion with deliberate or reckless disregard for the truth,

Dr. Levine is entitled to summary judgment on the ground of

qualified immunity.

2. Dr. Crowley

Burke alleges that Dr. Crowley also intentionally

fabricated or recklessly exaggerated an inculpatory bite mark

opinion in support of probable cause. Burke highlights Dr.

Crowley's deposition testimony that although she was professionally

interested in the field of bite mark analysis and regarded Dr.

Levine as a mentor, she was trained only as a dentist and had no

experience in bite mark analysis. Rather, her experience as a

-53-
forensic odontologist was limited to identifying human remains

through comparison with dental records. Burke maintains that any

bite mark opinion Dr. Crowley rendered would have reflected at a

minimum her reckless disregard for the truth because she knew she

was not qualified to perform such an analysis.

Dr. Crowley insists that she never formed a bite mark

opinion in support of probable cause. At deposition, Dr. Crowley

testified that while she examined the mold of Burke's teeth and the

bite mark on the victim, she did not make any comparisons: "I never

concluded that there was a match. I made some observations." She

also stated that she made transparencies and impressions of Burke's

teeth and the bite mark, but that she used these materials only as

learning tools. In short, Dr. Crowley testified that her role in

the investigation was limited to that of collecting and preserving

the bite mark evidence, including making the mold of Burke's teeth,

a task that dentists routinely perform.32

Burke counters that Dr. Crowley did render a bite mark

opinion in support of probable cause. He points to the deposition

testimony of Dr. Levine and Lt. Kenneth Martin, an investigator

with MSP Crime Scene Services, indicating that Dr. Crowley agreed

with Dr. Levine's bite mark opinion. Dr. Levine testified that he

was surprised to find out that Dr. Crowley had no experience in

32
Burke does not dispute that Dr. Crowley competently made the
mold of his teeth.

-54-
bite mark analysis, and that he had the impression that she shared

his initial opinion formed in Albany on December 6 as well as his

observations made at the Medical Examiner's Office in Boston on

December 9.33 Lt. Martin testified at deposition that he believed

Dr. Crowley would be the primary person testifying about the bite

mark evidence at a criminal trial and that Dr. Levine would be

consulted to give a second opinion. He further stated that he knew

Dr. Crowley had never testified at a trial about bite mark

analysis, but that he had no reason to think she was not qualified

to do so, given her examination of the actual bite mark and the

unenhanced photographs,34 his understanding that "she had had

previous training under Lowell Levine who is recognized as a

forensic odontologist," and her job qualifications.

Viewing the evidence in the light most favorable to

Burke, the record fails to support Burke's allegation that Dr.

Crowley actually communicated a bite mark opinion to the police

investigators for use in Det. Dolan's arrest warrant application.

33
Trooper McDonald testified at his deposition that he shared
Dr. Levine's general impression that Dr. Crowley agreed with his
initial conclusions made in Albany on December 6.
34
Dr. Crowley maintains that she never saw the enhanced
photographs that Trooper McDonald and Sgt. Shea delivered to Dr.
Levine in Albany late in the evening of December 9. Dr. Crowley
did not accompany the officers on this second trip to Albany, nor
was she present when Dr. Levine gave instructions to the photo lab
in Boston on how to enlarge the photographs. However, Lt. Martin
mentioned "the digital enhancements" of the photographs as being
among the items he believed Dr. Crowley examined.

-55-
Nor does the record indicate that the police investigators sought

or relied upon Dr. Crowley's opinion after Dr. Levine became

involved in the investigation.

Even if we were required to take a different view of the

evidence (and we are not), Dr. Crowley's communication of a bite

mark opinion, without more, would not amount to reckless

exaggeration, much less intentional fabrication, of bite mark

evidence. Dr. Crowley herself advised the District Attorney to

hire Dr. Levine as an expert. Given her knowledge of Dr. Levine's

credentials, as well as her own, albeit limited, knowledge of

forensic odontology, no rational jury could find that an opinion

from Dr. Crowley merely concurring in Dr. Levine's bite mark

opinion would be based on such dubious premises that it would

manifest reckless disregard for the truth.

Because Burke has failed to establish a genuine issue of

material fact on the initial question of whether Dr. Crowley

deprived him of his Fourth Amendment right, Dr. Crowley is entitled

to summary judgment on the ground of qualified immunity.

V. DEFAMATION CLAIM

Burke alleges that Walpole Police Chief Betro defamed him

by falsely and publicly attributing Kennedy's murder to him.35

35
Burke styles his defamation claim as being brought pursuant
to § 1983. Discerning no federal right affected by Chief Betro's
public statements, we analyze Burke's claim under the Massachusetts
law of defamation, as did the district court.

-56-
According to the deposition testimony of a reporter for the Daily

Transcript, a regional newspaper, Chief Betro made an appearance in

his official capacity at a public meeting organized by the East

Walpole Civic Association on or about January 13, 1999, after the

exculpatory DNA results became public and while Burke was awaiting

release to house arrest. Approximately two dozen citizens, fearful

that the murderer was still at large, attended the meeting. The

Boston Herald, relying on an article in the Daily Transcript,

reported on January 25, 1999 that Chief Betro assured the audience,

"I can tell you we've got the right man."36

Chief Betro then advanced a theory to explain how Burke

could be the killer despite having been excluded as a source of the

foreign DNA found in the bite mark on the victim's breast.

According to the Boston Herald, again relying on the Daily

Transcript, "[Chief] Betro . . . told the crowd that an orange

juice container was found about 40 feet from Kennedy's body, and it

was possible Burke drank the orange juice and washed away any DNA

samples in his mouth." The Boston Globe, which reported Chief

Betro's remarks on January 22, 1999, stated, "[i]n the highly

complex world of DNA testing, the idea that the results could be

manipulated by juice is not reasonable, according to several

scientists at laboratories who conduct the tests." The Globe

36
The Daily Transcript article written by the reporter who
attended the meeting is not part of the record.

-57-
article went on to state that "[t]he deputy laboratory director for

Cellmark Diagnostics in Maryland, perhaps the best known private

DNA testing laboratory in the country, dismissed the possibility."

Chief Betro argues that his statements at the meeting of

concerned citizens are absolutely privileged and cannot form the

basis for a defamation suit because they were made during the

course of a criminal investigation. While "statements made to

police or prosecutors prior to trial are absolutely privileged if

they are made in the context of a proposed judicial proceeding,"

Correllas v. Viveiros, 572 N.E.2d 7, 11 (Mass. 1991), Chief Betro's

statements were made to members of a neighborhood association and

were unrelated to any "proposed judicial proceeding," id. The

Massachusetts Supreme Judicial Court ("SJC") "has recognized the

existence of an absolute privilege in relatively few

circumstances." Mulgrew v. Taunton, 574 N.E.2d 389, 392 n.6 (Mass.

1991). Nevertheless, the court has recognized that "[s]tatements

made by public officials while performing their official duties are

conditionally privileged." Id. at 392. Chief Betro seeks

recognition of that privilege as well. Under Massachusetts law,

the availability of such a qualified privilege turns on whether

Chief Betro had an official duty to discuss Burke at a meeting of

concerned citizens.

The Massachusetts SJC has not decided the question of

whether a police chief has an official duty to appear at a meeting

-58-
of citizens who are concerned about a violent crime but who are

themselves uninvolved in the criminal investigation. While the

court has extended a conditional privilege to statements made by a

police chief to a city council committee about a police officer's

performance history because "[t]he public has an interest in having

a police force comprised of competent and able individuals," id. at

392, it has declined to extend a conditional privilege to

statements made by a police chief to a newspaper reporter about a

police officer's potentially illegal conduct where the statements

were not made "during the original investigation" to "persons

concerned with the investigation," Draghetti v. Chmielewski, 626

N.E.2d 862, 867-68 (Mass. 1994) (also rejecting argument that

police chief "and the citizens who read the [newspaper] share a

'common interest' in the communication which entitles him to a

qualified privilege"). "Lacking clear guidance" from the state

courts, we must make our "best guess based on suggestive

[Massachusetts] precedents, policy, and the general direction in

which the case law is tending in other states." Nicolo v. Philip

Morris, Inc., 201 F.3d 29, 40 (1st Cir. 2000).

The conditional privilege for defamatory statements is

"designed to allow public officials to speak freely on matters of

public importance in the exercise of their official duties."

Draghetti, 626 N.E.2d at 867. Determining whether a conditional

privilege is appropriate requires balancing of "the interest of the

-59-
defamed person in the protection of his reputation against the

interests of the publisher, of third persons[,] and of the public

in having the publication take place." Restatement (Second) of

Torts § 598A (1977). Burke's interest in the protection of his

reputation from false imputations of criminality cannot be

gainsaid. "Words may be found to be defamatory if they hold the

plaintiff up to contempt, hatred, scorn or ridicule, or tend to

impair his standing in the community." Poland v. Post Publ. Co.,

116 N.E.2d 860, 861 (Mass. 1953). Imputations of criminality

generally fit the bill. See, e.g., Draghetti, 626 N.E.2d at 866;

Jones v. Taibbi, 512 N.E.2d 260, 268-69 (Mass. 1987).

Nevertheless, the concerned citizens in this case were

justifiably apprehensive about the commission of this brutal crime

in their community and its implications for their safety. Chief

Betro accepted the invitation to speak at the meeting and attended

in his official capacity. Understandably, the local citizens

looked to him for a current report on the status of the

investigation. We note that several jurisdictions have recognized,

either by statute or by judicial decision, a conditional privilege

for statements made by the police to members of the press or the

public. See, e.g., Lanier v. Higgins, 623 S.W.2d 914, 916 (Ky.

App. 1981) (police chief interviewed by television station "was not

clothed with an absolute privilege but rather with a special or

conditional privilege"); Trentecosta v. Beck, 703 So. 2d 552, 564

-60-
(La. 1997) (qualified privilege for "fair reporting of

investigations or arrest" may be "available to . . . troopers in

their role as law enforcement officers reporting the facts of an

investigation and a resulting arrest to the press and, in turn, to

the public"); Peterson v. City of Mitchell, 499 N.W.2d 911, 915-16

(S.D. 1993) (per curiam) (upholding application of statutory

qualified "common interest privilege" for statements made in a

police press release where "the citizens of Mitchell had [a]

common, public interest in the apprehension of those responsible

for [a] recent wave of thefts and vandalisms"). On balance, while

recognizing that the authoritative call on this conditional

privilege issue is for the Massachusetts SJC, our best judgment is

that, when the SJC eventually decides the question, it will hold

that Massachusetts law affords a police chief standing in Chief

Betro's shoes the protection of a conditional privilege for

allegedly defamatory statements to a citizens' group.

Unlike absolutely privileged statements, which "cannot

support a claim of defamation, even if uttered with malice or in

bad faith," Correllas, 572 N.E.2d at 10, a conditional privilege

may be overcome where a plaintiff shows that the defendant "acted

with actual malice or [that] there is unnecessary, unreasonable or

excessive publication, and the plaintiff establishes that the

defendant published the defamatory information recklessly,"

Mulgrew, 574 N.E.2d at 391 (internal quotation marks and citations

-61-
omitted). While a reasonable jury could find that Chief Betro's

alleged statements indicating that the police had "the right man"

and theorizing that Burke could have rinsed his DNA out of his

mouth before making the bite mark on the victim were "unnecessary,

unreasonable or excessive," id. at 391,37 the record reveals no

evidence that Chief Betro acted with the necessary recklessness or

actual malice to overcome the conditional privilege. Accordingly,

Chief Betro is entitled to summary judgment on Burke's defamation

claim.

VI. CONCLUSION

For the reasons stated, we vacate the district court's

grant of summary judgment to Trooper McDonald on Burke's § 1983

claim alleging a Fourth Amendment violation. In all other

respects, the judgment of the district court is affirmed. The

parties shall bear their own costs.

37
By contrast, Lt. Stillman, the Walpole Police Department's
designated public information officer, limited his public
statements to the disclosure of information supported by evidence.
For example, The Walpole Times reported on January 21, 1999 that
"Stillman acknowledg[ed] that DNA evidence and a palm print taken
from the victim's body [have] excluded Burke. Stillman did point
out, however, that bite marks taken from Mrs. Kennedy's body
matched Burke's dental profile, according to one of the nation's
top forensic dentists."

-62-