Wilson v. City of Boston

United States Court of Appeals
For the First Circuit
No. 04-1310
NIQUICIA WILSON,

Plaintiff, Appellant,

v.

CITY OF BOSTON; CAPTAIN ROBERT DUNFORD,

Defendants, Appellees,

OFFICER JANINE MITCHELL; PAUL EVANS, in his capacity as
Commissioner of the Boston Police Department; UNKNOWN SERGEANT
BADGE NUMBER 958; JOHN DOE; JOHN POE,

Defendants.

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

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

Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer, Senior District Judge.*

Andrew M. Fischer, with whom Jason & Fischer was on brief, for
appellant.
Amy E. Ambarik, Assistant Corporation Counsel, with whom
Stephen G. Cox, Assistant Corporation Counsel, and Merita A.
Hopkins, Corporation Counsel, were on brief, for appellees.

August 31, 2005

*
Of the District of the District of Columbia, sitting by
designation.
 LIPEZ, Circuit Judge. This appeal stems from a mass

arrest sting designed to capture a large number of persons with

outstanding arrest warrants. Plaintiff-appellant Niquicia Wilson,

who had no criminal record and was never subject to an arrest

warrant, was mistakenly swept up in the arrest. As a result of

this experience, she sued various arresting officers and the City

of Boston under 42 U.S.C. § 1983 and state law. The district court

granted summary judgment to the City, but the rest of the case went

to trial. Wilson prevailed at trial against Captain Robert

Dunford, who planned and commanded the operation and was the

arresting officer. However, the court granted judgment

notwithstanding the verdict for Dunford on the basis of qualified

immunity. That ruling is the principal subject of this appeal.

We hold that the jury was entitled to conclude that

Wilson's arrest was an unreasonable seizure prohibited by the

Fourth Amendment. Nevertheless, we find that Dunford was entitled

to qualified immunity because an objectively reasonable officer in

his position could have believed that his conduct would not violate

the Fourth Amendment. We also agree with the district court's

resolution of other issues presented on appeal. Consequently, we

affirm.

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 I.

Because the case was tried to a jury, we recite the facts

in the light most favorable to the verdict. United States v.

Castellini, 392 F.3d 35, 39 (1st Cir. 2004).

A.

In the spring of 1999, plaintiff-appellant Niquicia

Wilson, an eighteen-year-old student with no criminal history, and

her boyfriend, Jean Cassamajor, received a letter in the mail. The

letter, addressed to Cassamajor, came from John Goodwin, who

supposedly represented a company called Madrid International that

was planning to act as a job broker to hire a large number of

people for work on Boston's "Big Dig" construction project. The

letter invited Cassamajor to attend a job fair on Sunday, June 27,

1999 at the Bayside Expo Center in Dorchester, Massachusetts.

Wilson was excited by the prospect of stable, long-term employment

for Cassamajor, and encouraged him to attend.

On the day of the job fair, Wilson drove Cassamajor to

the Bayside Expo Center, parked the car, and accompanied him into

the lobby of the exhibition hall. Cassamajor went to check in at

a staffed registration table, and Wilson went to a nearby vending

machine to buy a soda.

Suddenly she heard a commotion, and saw that two or more

men had tackled Cassamajor and thrown him to the floor. One of the

men yelled to Cassamajor that he was under arrest, and Wilson

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inferred (correctly) that the men were plain-clothed police

officers. The officers pushed Cassamajor through a set of double

doors into the exhibition hall.

Wilson approached the officers and asked what was

happening. They instructed her to go into the exhibition hall, and

"nudged" or encouraged her in the direction of the doors. Not

wanting to receive the same treatment as Cassamajor, Wilson

complied and entered the hall. There were approximately 105 people

seated in the hall, and a larger number of police officers. Wilson

saw that Cassamajor (now handcuffed) was sitting near the front,

and she sat down behind him.

Defendant-appellee Captain Robert Dunford of the Boston

Police Department ("BPD") was standing at a podium in the front of

the room.1 He told the assembled group that they were all under

arrest and that everyone should sit calmly. Not everyone complied

-- some of those present yelled at the officers -- but Wilson sat

calmly. At some point Dunford and other police officers explained

that everyone in the room was under arrest for outstanding

warrants, and Wilson realized that the "job fair" was in fact a

sting operation. Someone shouted a question regarding what would

happen to arrestees who did not actually have a warrant

1
Dunford is currently the Superintendent of the BPD. We refer
to him as Captain Dunford because that was his position during the
events at issue in this case.

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outstanding. Captain Dunford responded that if the person did not

have a warrant, the police "would square that away later."

Wilson informed a nearby officer that she was only at the

hall to drop her boyfriend off, and that if he checked he would see

that there was no warrant for her arrest. The officer told her to

sit down. Another arrestee had also told officers that he was in

the hall by mistake, and a Detective Arnstein summoned Captain

Dunford to talk to that person and Wilson. After Wilson explained

her situation to Dunford, he replied "fine, we are just going to

check you to make sure that the story you are telling us is the

truth and if that is determined, you are free to leave."

At police instructions, Wilson remained seated for "a

very long time."2 She did not speak up at this point because, she

later explained, "I didn't want to get roughed up. Some people

were being roughed up. I didn't want that to happen to me."

The police took arrestees in groups to a table at the

back of the hall for processing. When Wilson's section was finally

2
Wilson's characterizations of the intervals of time at issue
are very approximate. At various times her testimony provides a
range of time (e.g., "[a]bout ten, 15 minutes"); in such instances
we state the higher end of the range. For the first eight minutes
after Captain Dunford announced that everyone in the room was under
arrest, a videotape of the sting provides some time references, but
much of Wilson's testimony cannot be precisely matched to events
shown on the videotape. Because we recite the facts in the light
most favorable to the jury's verdict for Wilson, see Castellini,
392 F.3d at 39, we generally rely on her depiction of the events
that she witnessed, eschewing specificity where the record viewed
in this light does not provide it.

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called -- it was the last section -- she was handcuffed and moved

towards the processing table. All along the way, she repeatedly

insisted that she had no warrants.

At the processing table, Detective Janine Mitchell (a

defendant below, but not before us on appeal) was matching

arrestees to folders compiled in advance. Upon realizing that

there was no folder for Wilson, Mitchell inquired if she had any

aliases, such as "Nicky," "Tonya," or "Nicole." Wilson stated that

she did not. Eventually, after about fifteen minutes, Mitchell led

Wilson outside the building to stand near a van with a computerized

warrant checking system. Wilson asked to be taken inside due to

the heat, but Mitchell said words to the effect of, "We know you're

lying and until you tell us the truth, you'll sit out here."

The officer inside the van asked Wilson for

identification, and she produced a valid Massachusetts driver's

license. The officer continued to check for outstanding warrants

under names such as "Nicky Wilson" or "Tonya Wilson." After about

half an hour, having concluded that there was in fact no warrant

for Wilson's arrest, the officers sent for Captain Dunford.

When Dunford arrived, he asked Wilson for identification,

and she again produced her driver's license. Finally, realizing

the error, he explained that she would be released as soon as the

police could fill out an "incident report." In the meantime, she

was moved back into the auditorium. It took the officers another

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ten minutes to write the incident report, which was noted as

completed at 11:30 AM and which stated in relevant part: "Suspect

above was placed under arrest as a result of Operation Madrid . . .

. Subsequent warrant check revealed suspect to have no outstanding

warrants."3 It took another twenty minutes to await a "cuff

cutter" who could cut off her plastic handcuffs.

After her handcuffs were cut, Wilson was free to leave.

The entire incident had taken a little under two hours. She went

to the parking lot and found her boyfriend Cassamajor, who, it

turned out, did not have an outstanding warrant either.4

B.

The "job fair" had been about three months in the making.

The BPD had a longstanding problem with outstanding arrest warrants

(due in part to erroneous names, addresses, and so forth), and by

early 1999 there were some 14,000 warrants outstanding. Captain

Dunford conceived a plan, code named "Operation Goodwin," to help

solve the problem by luring suspects to a fictitious job fair and

then arresting them en masse.

The BPD mailed a letter with a job application to the

targets of the 14,000 outstanding warrants. About 6,500 of those

letters were returned for having bad addresses. In other cases,

3
Wilson asked for a copy of the incident report, but the
officers refused. She eventually obtained it through counsel.
4
The record does not indicate whether Cassamajor filed suit.

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the BPD learned that the suspect had died or left the jurisdiction.

The BPD took other measures to whittle the list. In some

cases, the suspect was arrested on another matter and therefore no

longer needed to be part of Operation Goodwin. In other cases, the

BPD determined that the warrant had been cleared in court (e.g., a

fine had been paid) and the department's computerized warrant

system was simply not up to date. After all the fine-tuning, the

list was narrowed to some 300 persons. The BPD sent them a second

letter with an invitation to a June 27, 1999 job fair at the

Bayside Expo Center and requested an RSVP. Of those 300, 192

responded. One of the 192 was Wilson's boyfriend Cassamajor, who

had once been the subject of an arrest warrant which, apparently

unbeknownst to the BPD, had already been cleared.

The plan for the event called for civilian BPD employees

to staff registration tables at the hall entrance. These employees

would verify that each arriving person was on the list of the 200

persons who had indicated that they planned to attend the event.

Captain Dunford anticipated that some of the recipients might bring

family members or friends, or that random passers-by might wander

in. If an uninvited person presented himself at the registration

table, he would be told that the event was invitation-only and a

similar event would be held in a few weeks. The registration table

was the only point at which entrants were checked to ensure that

they were actually invited.

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 Once a "job fair" attendee was verified at the

registration table, he would be directed to alphabetically

organized seats. Plainclothed police "spotters" would be

interspersed among the attendees in case anyone had a weapon. At

10:00 AM, Captain Dunford would ascend the podium and announce that

everyone was under arrest. Police arrest teams would then enter

and secure the room. Arrestees would be taken by rows to a

processing table at the rear of the hall, where officers would have

alphabetically organized folders containing each arrestee's

photograph, outstanding warrants, and a pre-filled arrest report.

According to Dunford, the plan provided that the

processing table would be the point at which the BPD would deal

with arrestees who claimed that they did not have a warrant.5 The

plan was that "[s]ince [the BPD] had folders on every person who

was supposed to be there with their photo . . . if anyone did get

into the hall by mistake, we could clarify it right there." For

example, if an arrestee presented documentation stating that the

warrant had been cleared (e.g., a receipt from the court stating

that a fine had been paid), he would be released. Alternatively,

if it turned out that an arrestee simply had the misfortune of

sharing a name with someone who actually had an outstanding

warrant, the officers at the processing table would realize that

5
This was apparently the meaning of his remark that if a
arrestee had no warrant, the police "would square that away later."

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the photograph did not match, and would "be able to immediately

look at the photo and say these are two different people and

release that person immediately."

On the morning of the event, two hours before it was to

begin, the BPD rechecked all 200 names on the list to ensure that

no one had been arrested, or had his warrant cleared, since the

invitations had been mailed. To maintain the element of surprise,

the approximately 100 line officers involved were not informed of

the operation until just beforehand.6

At the convention center, approximately 105 of the 200

responding invitees appeared and registered. Captain Dunford made

the planned arrest announcement a few minutes after 10:00 AM. He

was shortly thereafter told that there were two people (not

including Wilson) who were in the hall by mistake. Dunford called

them out by name, apologized, and personally escorted them to the

front reception area. Civilian employees then verified their

identification and released them.

Of the 105 attendees, the vast majority indeed had valid

outstanding warrants. Operation Goodwin was essentially complete

6
The record contains information, ultimately not presented at
trial, suggesting that the briefing was incomplete in comparison to
Captain Dunford's plan. For example, the officers at the
processing table were not instructed on what to do in case an
arrestee claimed she was present by mistake.

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by noon, several hours ahead of schedule. That afternoon, the BPD

held a press conference to announce the operation, at which Captain

Dunford spoke and described the sting as a success.

II.

Wilson filed suit in Massachusetts Superior Court against

Captain Dunford, Officer Mitchell, three unknown police officers

("the police defendants"), the City of Boston, and the Commissioner

of the BPD ("the municipal defendants"). Against the police

defendants, she pled false imprisonment (Count I), intentional

infliction of emotional distress (Count II), and violations of

various constitutional rights (principally, the right to be free

from unreasonable seizure under the Fourth Amendment) under 42

U.S.C. § 1983 and the parallel Massachusetts Civil Rights Act,

Mass. Gen. Laws ch. 12, § 11H (Count III). Against the municipal

defendants, she pled negligent supervision (Count IV) and a policy

or custom of failing to reasonably train and supervise police

officers (Count V). The defendants removed the suit to federal

court.

The district court ruled from the bench on cross-motions

for summary judgment. It granted the City's motion for summary

judgment on the grounds that Wilson had failed to establish either

that the City had negligently supervised its officers, or that

Captain Dunford -- who had conceived and led Operation Goodwin --

was an official policymaker within the meaning of Monell v.

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Department of Social Services, 436 U.S. 658, 694 (1978). The court

denied the motions of Dunford and Mitchell -- who had argued both

that Wilson's rights were not violated and that they were entitled

to qualified immunity -- on the grounds that "there are factual

issues that need to be presented at trial that preclude[] summary

judgment in either direction." For the same reason, it denied

Wilson's motion for summary judgment.

The claims against Dunford and Mitchell proceeded to a

jury trial. At the close of all the evidence, the district court

granted the police defendants' motions for judgment as a matter of

law on the claim of intentional infliction of emotional distress

(Count II). Thus, only three claims remained: false imprisonment

(Count I), violation of civil rights under 42 U.S.C. § 1983 (Count

III), and violation of civil rights under the Massachusetts Civil

Rights Act (also pled as part of Count III). Over both parties'

objections, the district court submitted the question of qualified

immunity to the jury on a special verdict form.

The jury returned a verdict for Mitchell on both counts.

As to Dunford, the jury found no false imprisonment or violation of

the Massachusetts Civil Rights Act. However, it found that he had

violated Wilson's Fourth Amendment right to be free from

unreasonable seizure, and that he was not entitled to qualified

immunity under § 1983. It awarded nominal damages of one dollar.

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 Both parties moved for judgment as a matter of law under

Fed. R. Civ. P. 50. The district court granted Dunford's motion,

concluding both that Wilson's detention did not violate the Fourth

Amendment and that Dunford was entitled to qualified immunity as a

matter of law. The court also acknowledged that it had erred in

initially submitting the qualified immunity question to the jury.

It thus entered judgment as a matter of law for Dunford. This

appeal followed.

III.

On appeal, Wilson assigns, by our count, six distinct

errors below.7 Three have been procedurally forfeited and we

dispose of them summarily.8 The claims that remain are that (1)

7
We construe her assignments of error generously and ignore
certain defects in her argument. For example, much of her argument
concerning the Fourth Amendment issue lies in a section devoted to
challenging the district court's refusal to grant summary judgment
in her favor. Strictly speaking, we have no jurisdiction over such
a claim because denial of summary judgment is not appealable under
28 U.S.C. § 1291. See Nieves-Luciano v. Hernandez-Torres, 397 F.3d
1, 4 (1st Cir. 2005). However, since she properly preserved these
issues by moving for judgment as a matter of law at the close of
all the evidence and then again after the jury verdict, and since
there is no prejudice to defendants, we treat this argumentation as
if it were aimed at the district court's denial of her motion for
judgment as a matter of law, which we have jurisdiction to review.
8
First, Wilson argues that the court failed to give a jury
instruction that false arrest constitutes "coercion" under the
Massachusetts Civil Rights Act. This claim was not preserved
because her request for this instruction below was inadequate and
untimely, and she did not timely object to the instruction as
given. See Fed. R. Civ. P. 51(c); Gray v. Genlyte Group, Inc., 289
F.3d 128, 133-34 (1st Cir. 2002). Consequently, we review for
plain error. Id. at 134. Even if the failure to give this
instruction was an error that is plain and would likely affect the

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the evidence established a Fourth Amendment violation, (2) Dunford

is not entitled to qualified immunity, and (3) the City is liable

under Monell because Dunford was a policymaker.

We begin with some observations about our standard of

review. The posture of this case is somewhat unusual. Typically,

a § 1983 defendant raises the qualified immunity issue either in a

motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for

summary judgment under Fed. R. Civ. P. 56. See Cox v. Hainey, 391

F.3d 25, 29 (1st Cir. 2004) (noting that "applicability vel non of

the qualified immunity doctrine should be determined at the

earliest practicable stage in the case"); see also Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (value of defense "is effectively

lost if a case is erroneously permitted to go to trial"). If the

district court grants one of these dispositive motions, then the

plaintiff appeals. If the court denies the motion on legal

grounds, the defendant usually takes an interlocutory appeal. See

outcome, it would not be "sufficiently fundamental to threaten the
fairness or integrity or public reputation of the judicial
proceeding." Id. (internal quotation marks omitted).
Second, she argues that the jury returned an inconsistent
verdict because it found a violation of § 1983 but not of the
Massachusetts Civil Rights Act. She forfeited this argument by
failing to object before the jury was discharged, Howard v.
Antilla, 294 F.3d 244, 250 (1st Cir. 2002), and once again it does
not qualify as plain error.
Third, she argues that the court erred by denying her motion
for judgment as a matter of law on the false imprisonment claim.
The point is inadequately developed, even when we combine it with
her argument for reversal of the district court's denial of summary
judgment, see supra note 7, and we deem it waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60 (1st Cir. 2004);

see also Saucier v. Katz, 533 U.S. 194, 200 (2001) (explaining that

the purpose of qualified immunity is not just to protect the

defendant from liability, but also from "stand[ing] trial or

fac[ing] the other burdens of litigation") (quotation marks

omitted).9 In either case, the same analytic framework applies:

This Court has identified a three-step process
for evaluating qualified immunity claims: (1)
whether the claimant has alleged the
deprivation of an actual constitutional right;
(2) whether the right was clearly established
at the time of the alleged action or inaction;
and (3) if both of these questions are
answered in the affirmative, whether an
objectively reasonable official would have
believed that the action taken violated that
clearly established constitutional right.

Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001).

In Saucier, the Supreme Court explained that the pure

constitutional question (i.e., the first prong) "must be the

initial inquiry," and courts may not simply "skip ahead to the

question whether the law clearly established that the officer's

conduct was unlawful in the circumstances of the case." 533 U.S.

at 201. Saucier explained that courts must address the

constitutional merits question first in order to facilitate the

development of the law:

9
Here, the defendants probably could not have taken an
interlocutory appeal because summary judgment was denied based on
factual disputes, not legal questions. See Rodríguez-Rodríguez v.
Ortiz-Vélez, 391 F.3d 36, 39-40 (1st Cir. 2004).

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 In the course of determining whether a
constitutional right was violated on the
premises alleged, a court might find it
necessary to set forth principles which will
become the basis for a holding that a right is
clearly established. This is the process for
the law's elaboration from case to case, and
it is one reason for our insisting upon
turning to the existence or nonexistence of a
constitutional right as the first inquiry.

Id.

Here, the district court rejected the police defendants'

motions for summary judgment on the basis of qualified immunity,

and the entire case -- including not only whether Wilson suffered

a Fourth Amendment violation, but also whether the police

defendants enjoyed qualified immunity for any such violation -- was

tried to the jury. After the jury returned a verdict and Dunford

moved for judgment as a matter of law, the district court later

recognized that the qualified immunity issue was a question of law

for the court to decide, notwithstanding any disputed material

facts. See Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st

Cir. 2002); St. Hilaire v. City of Laconia, 71 F.3d 20, 24 (1st

Cir. 1995) ("The ultimate question of qualified immunity should

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ordinarily be decided by the court."); id. at 24 n.1.10 The court

concluded that Dunford was entitled to qualified immunity.

This atypical history means that we are in the somewhat

unusual position of considering the qualified immunity question for

the first time when the case has already been tried. To be sure,

this unusual posture does not affect the viability of the qualified

immunity defense. See Lampkins v. Thompson, 337 F.3d 1009, 1014

(8th Cir. 2003) (describing such a posture as "procedurally

unusual," but emphasizing that "the qualified immunity defense is

not waived or lost if a case proceeds to trial"); Johnson v.

Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002) ("Defendants who are

not successful with their qualified immunity defense before trial

can re-assert it at the end of the plaintiff's case in a Rule 50(a)

motion."). And, ultimately, "the procedural posture in which

[Wilson's] appeal arises [does not] greatly influence the standard

of review." Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999).

Typically, we review a dismissal or grant of summary judgment de

novo and construe the allegations or evidence in the light most

favorable to the non-movant. See id. at 22. In the present

circumstance, "[w]hen a qualified immunity defense is pressed after

10
Genuine disputes concerning material facts must be resolved
by the jury, Suboh, 298 F.3d at 90, perhaps by special verdict
form, see, e.g., Singh v. Blue Cross/Blue Shield of Mass., Inc.,
308 F.3d 25, 35 n.9 (1st Cir. 2002). However, whether the
officer's conduct was objectively reasonable under a given set of
facts is a question of law for the court. See Suboh, 298 F.3d at
90; St. Hilaire, 71 F.3d at 24 & n.1.

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a jury verdict, the evidence must be construed in the light most

hospitable to the party that prevailed at trial." Id. at 23.

Since Wilson was both the non-movant at the summary judgment stage

and the victor before the jury, it makes little difference that we

review the qualified immunity question after trial instead of

before it. In either case, we construe the facts in the light most

favorable to Wilson, and decide legal questions de novo.

Having completed that detour, we begin with the first

stage of the qualified immunity analysis, and inquire whether the

evidence at trial, viewed in the light most favorable to the

verdict, is legally sufficient to support the jury's verdict that

the plaintiff was deprived of a constitutional right.

A. The First Prong

The Fourth Amendment provides that "[t]he right of the

people to be secure in their persons . . . 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 persons or things to be

seized." While the text of the amendment only mentions probable

cause in the context of issuing a warrant, decades of case law have

established that a warrantless arrest also requires probable cause.

E.g., United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997).11

11
The district court analyzed Wilson's detention as if it were
not an arrest, but rather an investigatory stop within the meaning
of Terry v. Ohio, 392 U.S. 1 (1968). Under Terry and its progeny,

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 Most arrests fall into one of several common patterns.

In the first scenario, an officer without a warrant suspects that

a certain person has just committed, or is about to commit, a

crime. In that case, "[p]robable cause for an arrest exists when

the arresting officer, acting upon apparently trustworthy

information, reasonably concludes that a crime has been (or is

about to be) committed and that the putative arrestee likely is one

of the perpetrators." Acosta v. Ames Dep't Stores, Inc., 386 F.3d

5, 9 (1st Cir. 2004).

In a second arrest scenario, "a law enforcement officer

[purporting to have] information amounting to probable cause

directs an officer who lacks the knowledge to make the arrest."

Meade, 110 F.3d at 193. In such cases, "we 'impute' to the

arresting officer the directing officer's knowledge," and thus the

arrest stands or falls on what the directing officer knew, not what

the arresting officer knew. Id.

In a third scenario, a magistrate has issued a warrant

for a suspect's arrest. In that case, we essentially ignore the

arresting officer's knowledge; the officer need not know anything

more than that a facially valid arrest warrant has issued. Rather,

"police officers who suspect criminal activity [can] make limited
intrusions on an individual's personal security based on less than
probable cause." Michigan v. Summers, 452 U.S. 692, 698 (1981).
However, both Captain Dunford and Officer Mitchell testified
unambiguously that Wilson was under arrest. At any rate, appellees
do not argue on appeal that Wilson's arrest should be treated as a
mere Terry stop, and we see no reason to treat it as one.

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we focus entirely on the magistrate's knowledge to determine if the

magistrate had "a substantial basis for determining the existence

of probable cause." Illinois v. Gates, 462 U.S. 213, 239 (1983).

These paradigms do not adequately capture the situation

here. Since there was no warrant for Wilson's arrest, this case

cannot fall in the third category. But it does not comfortably fit

in the first or second categories either. No officer even purports

to have drawn the conclusion "that a crime ha[d] been (or [was]

about to be) committed and that [Wilson] likely [was] one of the

perpetrators," Acosta, 386 F.3d at 9.

It is perhaps natural, and appellees understandably seize

upon the temptation, to misframe the question. Instead of asking

whether there was probable cause to believe that Wilson had

committed a crime, appellees pose the issue as whether there was

probable cause to believe that a warrant had been issued for her

arrest. That is not the correct analysis; it wrongly conflates the

Fourth Amendment question of probable cause with the § 1983

question (under the third prong of the qualified immunity test) of

objective reasonableness. As the Saucier framework makes clear,

courts must first answer the constitutional question as if there

were no such thing as qualified immunity, and only then ask whether

the additional protections of qualified immunity are available.

See 533 U.S. at 201. We must remember that "the reasonableness

standards underlying the probable cause and qualified immunity

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inquiries are not coterminous." Iacobucci, 193 F.3d at 23. In

particular, qualified immunity allows for a wider range of

mistakes. See Cox, 391 F.3d at 31. Qualified immunity "eschews a

line that separates the constitutional from the unconstitutional

and instead draws a line that separates unconstitutional but

objectively reasonable acts from obviously unconstitutional acts."

Id. at 31. In determining whether the Fourth Amendment was

violated, we must rigorously draw precisely the line that qualified

immunity eschews -- between the constitutional and the

unconstitutional -- and not erroneously import the wider latitude

afforded by § 1983 into the Constitution itself.

Under these basic principles, the Fourth Amendment is not

satisfied simply because the police had an objectively reasonable

belief that there was a warrant for Wilson's arrest. Indeed, the

Fourth Amendment would not necessarily be satisfied even if the

police correctly believed that there was a warrant for her arrest.

The Fourth Amendment requires that a warrant must be supported by

probable cause. See U.S. Const. amend. IV; Gates, 462 U.S. at 239.

And the probable cause that must ground a warrant cannot simply be

"probable cause to believe that there is a warrant."

In short, the ultimate question for determining whether

an arrest violates the Fourth Amendment is, in this context as in

any other, whether there was probable cause to believe that the

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arrestee had committed or was committing a crime.12 Under this

analysis, Wilson's arrest violated the Fourth Amendment. No

officer ever formed the conclusion "that a crime ha[d] been (or

[was] about to be) committed and that [Wilson] likely [was] one of

the perpetrators," Acosta, 386 F.3d at 9. Nor did any magistrate.

Rather, this is a case where each officer thought that some other

officer had convinced a magistrate to issue a warrant for Wilson's

arrest. And an arrest is not valid simply because the arresting

officer thinks that a second officer has adequate justification to

arrest a particular person. In such cases, the validity of the

arrest turns on whether the second officer actually did have

adequate justification to arrest that person:

Certainly police officers called upon to aid
other officers in executing arrest warrants
are entitled to assume that the officers
requesting aid offered the magistrate the
information requisite to support an
independent judicial assessment of probable
cause. Where, however, the contrary turns out
to be true, an otherwise illegal arrest cannot
be insulated from challenge by the decision of
the instigating officer to rely on fellow
officers to make the arrest.

12
Of course, whether a particular remedy is available for the
Fourth Amendment violation may turn on whether the arresting
officer reasonably relied on information that, in retrospect, did
not constitute probable cause. The good faith exception to the
exclusionary rule in criminal cases, see United States v. Leon, 468
U.S. 897, 922-23 (1984), and the qualified immunity defense in
§ 1983 cases, limit the remedies available when police violate the
Fourth Amendment based on a reasonable, good-faith misunderstanding
of the law or facts. But before determining whether a remedy is
available, we must first determine whether the Fourth Amendment has
even been violated.

-22-
Whiteley v. Warden, 401 U.S. 560, 568 (1971); see also United

States v. Hensley, 469 U.S. 221, 231 (1985) (the validity of an

arrest based on a police bulletin "turns on whether the officers

who issued the flyer possessed probable cause to make the arrest.

It does not turn on whether those relying on the flyer were

themselves aware of the specific facts which led their colleagues

to seek their assistance") (emphasis omitted); Meade, 110 F.3d at

194 n.2 ("If . . . the directing officer lacked probable cause to

order the arrest, then the arrest itself is unlawful regardless of

the arresting officer's otherwise proper reliance.").

The only basis appellees offer to support a finding of

probable cause is that most of the other people in the room did

have warrants for their arrest which, we will assume, were

supported by probable cause. But "mere propinquity to others

independently suspected of criminal activity does not, without

more, give rise to probable cause" for a search or arrest. Ybarra

v. Illinois, 444 U.S. 85, 91 (1979). Rather,

[w]here the standard is probable cause, a
search or seizure of a person must be
supported by probable cause particularized
with respect to that person. This requirement
cannot be undercut or avoided by simply
pointing to the fact that coincidentally there
exists probable cause to search or seize
another or to search the premises where the
person may happen to be. The Fourth and
Fourteenth Amendments protect the 'legitimate
expectations of privacy' of persons, not
places.

-23-
Id. Whatever relevance the officers' preparations and confusion

regarding Wilson's presence in the room may have for later stages

of the qualified immunity analysis, see supra note 12, these

factors do not add up to probable cause that Wilson had committed

a crime. Consequently, the evidence presented at trial supported

the jury's finding that Wilson's seizure was unreasonable, and

hence that Captain Dunford, as the arresting officer, violated her

Fourth Amendment rights.

B. The Second Prong

We now inquire "whether the constitutional right that the

officer allegedly violated was 'clearly established' at the time of

the incident such that it would 'be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.'"

Riverdale Mills, 392 F.3d at 65 (quoting Saucier, 533 U.S. at 202).

"One tried and true way of determining whether this right was

clearly established at the time the defendants acted, is to ask

whether existing case law gave the defendants fair warning that

their conduct violated the plaintiff's constitutional rights."

Suboh, 298 F.3d at 93. This inquiry "must be undertaken in light

of the specific context of the case, not as a broad general

proposition." Saucier, 533 U.S. at 201. On the other hand,

"officials can still be on notice that their conduct violates

established law even in novel factual circumstances." Hope v.

Pelzer, 536 U.S. 730, 741 (2002). Consequently, "the salient

-24-
question . . . is whether the state of the law in [1999] gave

[Dunford] fair warning that [his] alleged treatment of [Wilson] was

unconstitutional." Id. Finally, we examine "not only Supreme

Court precedent, but all available case law," Suboh, 298 F.3d at

93, including both federal cases outside our own circuit, Hatch v.

Dep't for Children, Youth & Their Families, 274 F.3d 12, 23 (1st

Cir. 2001), and state court decisions of the state wherein the

officers operated, Starlight Sugar, 253 F.3d at 144.

We conclude that pre-1999 case law gave police officers

ample warning that arresting and detaining someone incorrectly

swept up in a mass arrest sting aimed at individuals with

outstanding arrest warrants would violate her Fourth Amendment

rights. While the parties have not identified any cases in which

this issue has arisen in the context of an entirely innocent person

who unwittingly was caught in a planned mass arrest, courts have

addressed two closely related situations.

First, it has been clearly established for decades that

if one officer instructs another officer to make an arrest, the

arrest violates the Fourth Amendment if the first officer lacked

probable cause, regardless of how reasonable the second officer's

reliance was. See Hensley, 469 U.S. at 231; Whiteley, 401 U.S. at

568; Meade, 110 F.3d at 193-94 & n.2.

Second, it was well established in other federal courts

and in Massachusetts state court, if not in this circuit, that an

-25-
arrest made on the basis of a facially valid warrant which turns

out to have been cleared before the arrest violates the Fourth

Amendment. See, e.g., Murray v. City of Chicago, 634 F.2d 365, 366

(7th Cir. 1980) (ten weeks after court quashed and recalled a

warrant for appellant's arrest, police arrested her on the basis of

the warrant; court found it "clear that appellant sustained a

violation of constitutional rights by being arrested and detained

pursuant to an invalid warrant"); Commonwealth v. Hecox, 619 N.E.2d

339, 340-44 & n.2 (Mass. App. Ct. 1993) (where officer mistakenly

believed that a warrant was outstanding for defendant's arrest, but

in fact a warrant either never had issued or had been subsequently

cleared, arrest pursuant to that warrant violated Fourth

Amendment);13 see also McMurry v. Sheahan, 927 F. Supp. 1082, 1088

(N.D. Ill. 1996) (holding that it was clearly established for

§ 1983 purposes that an arrest founded upon a recalled warrant

violates the Fourth Amendment).

If it was clearly established that the Fourth Amendment

proscribes an arrest based on a warrant that was once valid but has

since been cleared, then a fortiori it was clearly established that

the amendment proscribes an arrest based on a warrant that never

13
See also Wayne R. LaFave, 2 Search & Seizure § 3.5 & n.105
(4th ed. 2004) (noting that "[w]hen the nature of the mistake is
that an arrest was made pursuant to an arrest warrant which in fact
was quashed before the arrest was made, court[s] are particularly
ready to assert that . . . the Fourth Amendment has been violated,"
and collecting state cases).

-26-
existed in the first place. Taken together, the two principles

cited above -- that an arrest based on a request by another officer

is lawful only if the first officer had probable cause, and that an

arrest based on a facially valid, but actually recalled, warrant

violates the Fourth Amendment -- gave unmistakable warning to

Massachusetts police that the Fourth Amendment prohibits arresting

someone solely on the basis of a nonexistent warrant. We therefore

conclude that the second prong has been satisfied.

C. The Third Prong

The final prong of the qualified immunity analysis, often

the most difficult one for the plaintiff to prevail upon, is

"whether an objectively reasonable official would have believed

that the action taken violated that clearly established

constitutional right." Starlight Sugar, 253 F.3d at 141. Section

1983 actions "frequently turn on the third prong of the qualified

immunity inquiry, which channels the analysis from abstract

principles to the specific facts of a given case." Cox, 391 F.3d

at 31. "It is not always evident at the time an official takes an

action that a clearly established right is involved. For example,

the factual situation might be ambiguous or the application of the

legal standard to the precise facts at issue might be difficult; in

either case the officer's actions may be objectively reasonable and

she may be entitled to qualified immunity." Riverdale Mills, 392

F.3d at 61. "Because 'the concern of the immunity inquiry is to

-27-
acknowledge that reasonable mistakes can be made as to the legal

constraints on particular police conduct,' even where a plaintiff

has shown . . . 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." Burke v. Town of Walpole, 405 F.3d 66,

86 (1st Cir. 2005) (quoting Saucier, 533 U.S. at 205).14

In this case, the "added measure of protection" provided

by qualified immunity, Cox, 391 F.3d at 31, suffices to protect

Dunford. To be sure, the objective reasonableness of Wilson's

detention deteriorated as events unfolded. At the beginning of the

encounter, when she was simply one of a hundred people in a

convention hall that was supposedly carefully screened to contain

only police officers and persons with outstanding arrest warrants,

the odds were extremely high that there was a warrant for Wilson's

arrest. That fact made it objectively reasonable for an officer in

Dunford's position to believe that arresting Wilson would not

violate the Fourth Amendment.

Later, when the police became aware that the carefully

prepared processing table contained no folder or photograph for

14
This principle reflects the difference between the probable
cause standard under the Fourth Amendment and the objective
reasonableness standard under the third prong of the § 1983
qualified immunity test. See supra Part III.A.

-28-
her, the reasonableness of her continued detention diminished.

Nevertheless, the police could have hypothesized that her folder

had been misplaced, and it was not objectively unreasonable to

delay releasing her from custody pending final verification of her

status. See Rogers v. Powell, 120 F.3d 446, 456 (3d Cir. 1997).

There remains the approximately thirty minutes during

which the police completed routine paperwork and awaited a cuff

cutter after they had reached the inescapable conclusion that there

had never been a warrant for Wilson's arrest. Although the issue

is close, we conclude that Dunford continued to enjoy qualified

immunity during this final thirty minutes of detention. Cf. id. at

456-57 (holding that police did not enjoy qualified immunity for a

period where they acknowledged that plaintiff had to be released,

but nevertheless kept him handcuffed). After confirming Wilson's

identity and her lack of a warrant, Dunford ordered the officers to

release her; subsequent delay arose from routine paperwork and time

waiting for a "cuff cutter" to arrive. Qualified immunity protects

"all but the plainly incompetent or those who knowingly violate the

law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The delay in

effecting Wilson's release, while undoubtedly exasperating to her,

was due to simple administrative inefficiency, not plain

-29-
incompetence or knowing violation of the law. Consequently, we

affirm the district court's judgment in favor of Dunford.15

IV.

We now address the City's liability. The district court

granted summary judgment for the City because there was

insufficient evidence that Operation Goodwin was a City policy. We

review a grant of summary judgment de novo, viewing the record in

the light most favorable to the non-movant. Rosenberg v. City of

Everett, 328 F.3d 12, 17 (1st Cir. 2003).

The fact that Dunford prevailed on the qualified immunity

defense does not help the City. Municipalities cannot assert

qualified immunity. See Owen v. City of Independence, 445 U.S.

622, 650 (1980). And the jury did find that Wilson suffered a

constitutional injury. However, "a municipality cannot be held

liable solely because it employs a tortfeasor -- or, in other

words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory." Monell v. Dep't of Soc. Servs., 436

U.S. 658, 691 (1978). Rather, a municipality is liable only "when

execution of a government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury." Id. at 694.

15
Because the qualified immunity question should not have been
submitted to the jury in the first place, see supra note 10, we do
not owe any deference to the jury's answer to that question.

-30-
 Wilson argues that her injury stemmed from City policy

because Captain Dunford had final authority to establish such

policy for Operation Goodwin.16 See Pembaur v. City of Cincinnati,

475 U.S. 469, 481-83 (1986) (plurality opinion) (describing the

level of decision-making authority necessary to establish municipal

liability); Cordero v. De Jesus-Mendez, 867 F.2d 1, 7-8 (1st Cir.

1989) (acknowledging Pembaur plurality opinion as law of this

circuit). Pembaur held that

[m]unicipal liability attaches only where the
decisionmaker possesses final authority to
establish municipal policy with respect to the
action ordered. . . . [P]articular officers
may have authority to establish binding [city]
policy respecting particular matters and to
adjust that policy for the [city] in changing
circumstances. . . . We hold that municipal
liability under § 1983 attaches where -- and
only where -- a deliberate choice to follow a
course of action is made from among various
alternatives by the official or officials
responsible for establishing final policy with
respect to the subject matter in question.

475 U.S. at 481-83. "An unconstitutional policy . . . may be

inferred from a single decision or act . . . [but] the isolated

action must be taken by a municipal official with 'final

policy-making authority' in the relevant area of the city's

business." Roma Constr. Co. v. aRusso, 96 F.3d 566, 576 (1st Cir.

16
Wilson also fleetingly adverts to the allegedly inadequate
training of the line officers in how to react if an innocent
bystander was caught in the sting. If this is supposed to be an
argument that there was a policy of inadequate training, we deem it
waived by insufficient argumentation. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).

-31-
1996) (quotation marks and citation omitted; alterations in

original).

Not every police operation is a municipal policy; Wilson

has the burden of establishing that this particular operation was

City policy. She argues that Operation Goodwin was City policy

because it was (1) a large operation involving arrest warrants from

all over Boston, (2) commanded by a high-ranking officer, and (3)

videotaped for national distribution. Those facts, however, do

not make it an official City policy. Wilson offers no evidence

that Dunford -- then a captain assigned to a station in Dorchester,

subject to the hierarchical supervision of a Deputy Superintendent,

Superintendent, and Police Commissioner -- had the authority to set

municipal policy for the City of Boston. We therefore affirm the

district court's grant of summary judgment for the City.

V.

We conclude that the jury's finding that Captain Dunford

violated Wilson's Fourth Amendment rights is supported by the

evidence. However, as a matter of law, Dunford is not liable

because he enjoys qualified immunity, and the City is not liable

because there was insufficient evidence that Operation Goodwin was

City policy.

Affirmed.

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