United States Court of Appeals
For the First Circuit
No. 05-2375
BARRY HIGGINS,
Plaintiff, Appellant,
v.
PENOBSCOT COUNTY SHERIFF'S DEPARTMENT; GLENN ROSS,
SHERIFF, PENOBSCOT COUNTY; JOSHUA TIBBETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Margaret Kravchuk, U.S. Magistrate Judge]
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Julie D. Farr, with whom Charles E. Gilbert, III and Gilbert
& Greif, P.A. were on brief, for appellant.
Cassandra S. Shaffer, with whom Peter T. Marchesi and
Wheeler & Arey, P.A. were on brief, for appellees.
April 14, 2006
Per Curiam. This case arises from an incident in which
defendant Joshua Tibbetts, a deputy sheriff with the Penobscot
County Sheriff's Department, issued plaintiff Barry Higgins a no-
trespass warning and ordered him to leave the T & N Trailer Park in
Carmel, Maine. The district court granted the defendants
(Tibbetts, Tibbetts' supervisor Sheriff Glenn Ross, and the
Department itself) summary judgment on Higgins' claims that
defendants deprived him of his Fourth and Fourteenth Amendment
rights and certain other rights secured him under Maine common law.
The court also granted defendants judgment on the pleadings on
Higgins' claim under Maine's unlawful eviction statute, 14 M.R.S.A.
§ 6014. Higgins brings this appeal to challenge these rulings.
The incident giving rise to this case occurred on May 16,
2002. The undisputed facts and the disputed facts taken in a light
favorable to Higgins, see, e.g., APG, Inc. v. MCI
Telecommunications Corp., 436 F.3d 294, 297 (1st Cir. 2006), are
that Higgins awoke that morning in an apartment over a garage built
on a lot within the trailer park. While he was drinking coffee in
his robe, Higgins heard someone closing a door below, in the
garage. Higgins opened the door to the apartment and saw his
sister Irene standing outside near the base of a ladder that he had
used to access the apartment. (Apparently, there previously was a
deck with steps leading up to the apartment, but the deck and steps
had been removed). Higgins asked Irene what she was doing in his
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garage. Irene retorted that Higgins had no right to be there and
that she was going to call the sheriff. But before she could do
so, Higgins called the sheriff's department and asked for
assistance.
There had been a long-running dispute between Higgins and
his family over Higgins' rights vis-à-vis the building and certain
of its contents. Those members of Higgins' family who have
submitted evidence in this case deny that Higgins had any right to
be in the building on the day of the incident. Higgins responds
that, at the very least, he had a tenancy interest in the building.
He alleges that he and his father, Leo, formed a partnership and
purchased the trailer park in 1972, agreeing at the time that all
members of the Higgins family would have a lifetime right to reside
there. Higgins says that he paid for and built the apartment and
garage, completing construction in 1981, and that he "resided" in
the building from 1981 to the day of the incident. Higgins admits
to having spent significant periods of time out of state beginning
in the late 1990s, and to having signed his partnership interest
over to his father during his divorce proceedings in 1989, with the
as-yet unrealized expectation that his father would deed the
interest back to him after the proceedings concluded. But he
maintains that his "long-term possession and occupancy of the
building, at a minimum, give rise to a tenancy interest, even in
the absence of agreement with his father as to its terms."
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Deputy Tibbetts was dispatched to the trailer park in
response to Higgins' call. Upon arriving, Tibbetts encountered
what Higgins described in his deposition as a "screaming contest"
involving, at the very least, himself and his sisters Irene and
Cynthia, as well as Cynthia's husband David Prescott. Higgins
informed Tibbetts that he and his father were engaged in an ongoing
disagreement over ownership of the property and his right to reside
there. Leo showed up a short time later with a copy of the deed,
which he showed to Tibbetts, telling him that he previously had
notified Higgins to stay off the property. Leo asked Tibbetts to
bar Higgins from the property. Higgins informed Tibbetts that the
police had more than once been summoned to mediate the issue but
always had declined to involve themselves, telling Higgins and Leo
that it was a "civil dispute and that [they] would not get
involved."
In due course, Tibbetts issued Higgins the no-trespass
order that is the subject of this lawsuit and gave him several
minutes to collect some personal belongings from the apartment.
Several facts, in addition to Leo’s apparent ownership of the
building, led Tibbetts to believe that Higgins was a trespasser and
was not lawfully entitled to occupy the apartment: the truck
Higgins had parked outside the building had Connecticut license
plates; there were no stairs, only a ladder, to access the
building’s apartment; and Tibbetts had driven past the building on
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“many, many” prior occasions and it always had appeared vacant -–
i.e., there never were any lights on, there never were any vehicles
parked outside, and there was “lots of junk in the dooryard that
was always in the same place.” (The word "dooryard," as used
colloquially in northern New England and eastern Canada, typically
refers to the area outside the most commonly used entrance to a
residence, and often includes the driveway. See Walt Whitman, When
Lilacs Last in the Dooryard Bloom'd (1865-66)). Tibbetts told
Higgins that he would be arrested if he did not leave or if he
returned to the property. Higgins says that he asked Tibbetts to
look in the apartment and to take note of the personal property
that he would be leaving behind, but Tibbetts refused. Higgins
says that, after he complied with Tibbetts' order and departed, a
great deal of his personal property disappeared from the building.
Eventually, Higgins filed this action. He asserted three
federal civil rights claims: that his "eviction" constituted (1)
a "meaningful interference with . . . [his] possessory interests"
in his residence, and thus an unlawful seizure in violation of the
Fourth Amendment, see Soldal v. Cook County, 506 U.S. 56, 61 (1992)
(citation and internal quotation marks omitted); (2) an abridgment
of his right to procedural due process protections before the
seizure, see Fuentes v. Shevin, 407 U.S. 67, 87 (1972); and (3) a
violation of his right to have had Tibbetts properly trained and
supervised by the other defendants, see, e.g., City of Oklahoma
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City v. Tuttle, 471 U.S. 808, 813-24 (1985). He also asserted
state law claims for conversion of his personal property and the
infliction of emotional distress. Finally, as noted at the outset,
Higgins pressed a claim under Maine’s unlawful eviction statute, 14
M.R.S.A. § 6014.
Following discovery, the defendants moved for summary
judgment on all claims except the claim for wrongful eviction, on
which they moved for judgment on the pleadings. The matter was
referred to a magistrate judge, who issued a thorough and carefully
reasoned report recommending that the defendants’ motions be
granted. The magistrate judge expressed considerable doubt that a
viable constitutional claim was stated under either the Fourth or
Fourteenth Amendments, but concluded that, in any event, the
defendants should be entitled to qualified immunity from the claims
because they had not violated Higgins’ “clearly established”
rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The magistrate
judge further concluded that the defendants should be statutorily
immune from liability on Higgins’ conversion and infliction of
emotional distress claims, Tibbetts because he was exercising a
discretionary function when he issued the no-trespass order and did
not act in bad faith, see 14 M.R.S.A. § 8111(1)(c) & (E), and the
remaining defendants because of absolute governmental-entity
immunity, see 14 M.R.S.A. § 8103(1). Finally, the magistrate judge
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rejected Higgins’ claim for unlawful eviction because, inter alia,
the statute only authorizes a cause of action against a “landlord,”
and not against his agent. The district court accepted the
magistrate judge’s recommended rulings insofar as they were
premised on the reasoning just summarized, and Higgins brought this
appeal to challenge these rulings.
The lower court opinions more than adequately explain why
the defendants are entitled to summary judgment in this case, so we
are content to affirm largely on the basis of those opinions. See,
e.g., Vargas-Ruiz v. Golden Arch Devel. Corp., 368 F.3d 1, 2 (1st
Cir. 2004). We add only a few remarks about Higgins'
constitutional claims against Tibbetts. Higgins premises these
claims on the threshold assertion that the untrained Tibbetts
subjected him to an unlawful eviction. We do not doubt that, in
certain circumstances, a police officer’s participation in an
unlawful eviction can implicate a tenant’s Fourth and Fourteenth
Amendment rights and give rise to liability under 42 U.S.C. § 1983.
Cf. Soldal, 506 U.S. at 61; Fuentes, 407 U.S. at 87. At least
arguably, then, Higgins has adduced enough evidence to meet the
first two parts of this circuit's tripartite qualified-immunity
inquiry. See, e.g., Wilson v. City of Boston, 421 F.3d 45, 52 (1st
Cir. 2005) (summarizing the first two questions the court should
ask as: "(1) whether the claimant has alleged the deprivation of
an actual constitutional right; [and] (2) whether the right was
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clearly established at the time of the alleged action or inaction
. . ."); Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-61 (1st
Cir. 2004) (similar).
In our view, the viability of Higgins' constitutional
claims against Tibbetts depends on whether, to the extent that what
happened properly can be found to have been an “eviction” at all,
Tibbetts could be found to have known that it was an unlawful
eviction. Such a finding is necessary if Higgins is to clear the
final hurdle presented by the qualified-immunity defense Higgins
has interposed. See Wilson, 421 F.3d at 52 (observing that, at the
third prong of this circuit's qualified-immunity inquiry, the
plaintiff must establish that “an objectively reasonable official
would have believed that the action taken violated [the previously
identified] clearly established right”); see also Riverdale Mills,
392 F.3d at 61 (“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 action may be
objectively reasonable and she may be entitled to qualified
immunity.”).
One could not reasonably find in Higgins’ favor on this
issue. As set forth above, Tibbetts encountered a volatile and
potentially dangerous situation -- described by Higgins himself as
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a “screaming contest” -- when he arrived at the trailer park. The
subject of the dispute was a man who, so far as Tibbetts could
tell, was driving a truck with out-of-state license plates, and who
claimed a right to occupy a building with which Tibbetts was
familiar and which Tibbetts reasonably thought, based on his prior
knowledge of the building and the circumstantial evidence at the
scene, to have been long unoccupied. The man provided no written
lease or other documentation to support his claimed occupancy
right, but only made a conclusory verbal claim of entitlement.
Opposing this man were several members of his own family, all of
whom disputed his claimed entitlement and informed Tibbetts that he
previously had been told to stay away, and one of whom -- the man's
father -- produced a deed which substantiated the father's claim of
ownership of the property.
"Qualified immunity protects 'all but the plainly
incompetent or those who knowingly violate the law.'" Wilson, 421
F.3d at 58 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In these circumstances, Tibbetts' decision to disbelieve Higgins
and to defuse the situation by asking him to leave under threat of
citation for trespass was neither plainly incompetent nor involved
a deliberate violation of the law. Given the paucity of evidence
that Higgins was entitled to occupy the property and the abundance
of evidence pointing the other way, Higgins' argument essentially
invites us to hold, as a matter of constitutional law, that a
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police officer, summoned to mediate a volatile dispute involving an
alleged trespasser, is obliged to leave the situation unresolved
simply because the trespasser represents himself to be entitled to
be there. To state the proposition is to expose its foolishness.
Affirmed.
Concurring opinion follows.
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HOWARD, Circuit Judge, concurring in the judgment. The
opinion of the court applies the three-part qualified immunity
analysis called for in our recent cases and concludes that Tibbetts
is entitled to qualified immunity at prong three. See, e.g.,
Wilson v. City of Boston, 421 F.3d 45, 52-59 (1st Cir. 2005);
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-66 (1st Cir.
2004); Suboh v. District Atty's Office, 298 F.3d 81, 90-96 (1st
Cir. 2002); Abreu-Guzman v. Ford, 241 F.3d 69, 73-74 (1st Cir.
2001). I write separately because I believe that Tibbetts should
have prevailed on the initial inquiry -- whether he violated
Higgins' constitutional rights -- and more generally to urge
consideration of a return to the "two-step process," Brosseau v.
Haugen, 543 U.S. 194, 195 (2004), traditionally employed in
qualified immunity cases. I do so because our three-step process
invites erroneous holdings and, possibly, erroneous outcomes,
especially in Fourth Amendment cases.
For most of the last decade, this court has usually asked
three questions when evaluating whether a government actor is
entitled to qualified immunity: (1) Does the official conduct in
question, as alleged, constitute the violation of an actual federal
right? (2) If so, was the right so clearly established at the time
of the alleged violation that a reasonable official would have been
on notice that the conduct was unconstitutional? (3) If so, would
a reasonable official have understood that the conduct violated the
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clearly established right at issue? E.g., Wilson, 421 F.3d at 52;
but see Riverdale Mills, 393 F.3d at 61 n.5 (acknowledging that we
sometimes still follow a two-step process). A negative answer to
question one means that there has been no violation of a federal
right; a negative answer to question two or three gives rise to
qualified immunity insofar as plaintiff is seeking money damages
from the defendant.
The second and third questions we ask derive from an
elaboration of the two-step process described in the Supreme
Court's qualified-immunity cases. The two-step test directs courts
evaluating assertions of qualified immunity to ask: (1) Do the
specific case facts alleged describe a violation of a federal
right? (2) If so, should the defendant, who is charged with
knowledge of clearly established law, have known that the conduct
in question violated that right? See Saucier v. Katz, 533 U.S.
194, 201-02 (2001); see also Riverdale Mills, 392 F.3d at 60-61
(observing that the second and third questions this circuit usually
asks involve an expansion of the inquiry prescribed by the Supreme
Court).
Our elaboration seems to have been prompted, at least in
part, by a desire to emphasize that official defendants should not
be held liable in situations where they have made reasonable
mistakes about the facts of the situation they confront, as well as
reasonable mistakes as to whether, in light of clearly established
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law, their conduct infringed a federal right. See, e.g., Wilson,
421 F.3d at 57-58; Riverdale Mills, 392 F.3d at 61; Suboh, 298 F.3d
at 96. The issue of mistaken factual (as opposed to legal)
judgments frequently arises in civil rights actions alleging Fourth
Amendment violations, where the constitutionality of an official's
conduct turns not on post hoc judgments about whether the search or
seizure was justified or properly calibrated, but on whether it was
reasonable under the tense, uncertain, and rapidly evolving
circumstances that the official confronted. See Saucier, 533 U.S.
at 204-05 (discussing Graham v. Connor, 490 U.S. 386 (1989)). But
this is not exclusively a Fourth Amendment problem; the issue of
mistaken factual judgments arises in other constitutional settings
as well. See, e.g., Dirrane v. Brookline Police Dept., 315 F.3d
65, 69-70 (1st Cir. 2002) (applying a fact-based balancing test to
determine the viability of claimed First Amendment violation in the
case of a government whistleblower disciplined for "disruptive
speech"); Suboh, 298 F.3d at 90-92 (applying a fact-based balancing
test to determine the viability of alleged infringements of the
right to "familial integrity," protected by the Fourteenth
Amendment's Due Process Clause, in a child-custody dispute).
Of course, officials should not be made to pay damages
for reasonable but mistaken factual judgments made in circumstances
such as these. But the reason they should not be held liable is
that an official who acts reasonably vis-à-vis the plaintiff has
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not violated the plaintiff's constitutional rights -- even if the
invasion in question proves unwarranted with the benefit of 20/20
hindsight. See Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990)
(emphasizing that the Fourth Amendment does not protect against
searches and seizures that prove to have been unwarranted, but only
against searches and seizures that were unreasonable). In such a
situation, the qualified-immunity defense should not even be
addressed because its necessary antecedent -- the presence of a
viable claim for the invasion of a federal right -- is lacking.
Our recent qualified-immunity cases obscure this point by
suggesting that reasonable factual errors, like reasonable legal
errors, are grist for the qualified-immunity mill, and are not to
be analyzed as part of the threshold federal-right issue.
Our recent opinion in Wilson is instructive, consistent
as it is with our other recent precedent. In that case, a woman
who was mistakenly arrested pursuant to a sting operation designed
to capture a large number of persons with outstanding arrest
warrants sued the arresting officer for money damages, claiming
that he violated her Fourth Amendment rights. See 421 F.3d at 47.
In conducting our three-part qualified immunity analysis, we
determined that, under the facts alleged, the arresting officers
indeed had violated the plaintiff's right to be free from an
erroneous arrest, and that it should have been clear to the
arresting officer, under prevailing clearly established law, that
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his conduct was unlawful. See id. at 54-57. In other words, we
answered our first two qualified-immunity questions in the
affirmative. See id. Nonetheless, we concluded that the officer
was entitled to qualified immunity. See id. at 57-59. We reasoned
that the officer reasonably, although mistakenly, believed that
there was an outstanding warrant for the plaintiff's arrest, and
that he acted reasonably in promptly ordering the plaintiff's
release upon learning of the error. See id.
The defendant in Wilson was not simply entitled to avoid
damages liability because of the qualified-immunity doctrine; he
was entitled to a merits dismissal of the plaintiff's Fourth
Amendment claim because his conduct was reasonable under the
circumstances. See Rodriguez, 497 U.S. at 183-89. In other words,
he did not violate the plaintiff's Fourth Amendment rights.
See id. The factual analysis performed at step three should have
been performed at step one, and should have yielded the conclusion
that there was no constitutional violation. Regrettable as
incidents of mistaken arrest such as this may be, American citizens
simply do not have a free-standing Fourth Amendment right not to be
arrested erroneously. Cf. id. at 184 ("If a magistrate, based upon
seemingly reliable but factually inaccurate information, issues a
warrant for the search of a house in which the sought-after felon
is not present, has never been present, and was never likely to
have been present, the owner of that house suffers one of the
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inconveniences we all expose ourselves to as the cost of living in
a safe society; he does not suffer a violation of the Fourth
Amendment."). The right protects only against unreasonable arrests
-- i.e., unreasonable mistakes about the perceived facts giving
rise to the arrest.
I would not write separately if my concern were merely
theoretical. Although the results in Wilson and this case remain
the same whether we hold that there has been no invasion of a right
or that there has been a reasonable mistake of fact made in
connection with the invasion of the right, that is so only because
the plaintiff in each case sought only monetary damages, and not
declaratory or injunctive relief (against which the qualified-
immunity doctrine is not a shield, see Torres Rivera v. Calderon
Serra, 412 F.3d 205, 212 (1st Cir. 2005)). We should not hold or
imply, as we are invited to do in our tripartite elaboration of the
qualified-immunity analysis, that a government official violates
the Constitution when she makes a reasonable but mistaken factual
judgment that a particular situation calls for a forceful
intervention by her office. The traditional two-step qualified
immunity analysis, still employed by the Supreme Court, does not
permit this error, for it channels consideration of issues of
reasonable mistakes of fact into the initial inquiry: whether
there has been an invasion of a federal right. See Brosseau, 543
U.S. at 195.
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We should return to the two-step inquiry employed by the
Supreme Court.
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