United States Court of Appeals
For the First Circuit
No. 11-1151
JAMES R. ELDREDGE,
Plaintiff, Appellant,
v.
TOWN OF FALMOUTH, MA; ANTHONY RIELLO, individually and in his
official capacity as the Chief of the Falmouth Police Department;
THOMAS MAGUIRE, individually and in his official capacity
as an Officer of the Falmouth Police Department; MICHAEL
SIMONEAU, individually and in his official capacity as an officer
of the Falmouth Police Department, a/k/a "The Seminole",
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
George F. Gormley, with whom George F. Gormley, P.C. was on
brief, for appellant.
Daniel G. Skirp, with whom Pierce, Davis & Perritano, LLP was
on brief, for appellees.
November 22, 2011
HOWARD, Circuit Judge. This is an appeal from the
dismissal of a complaint alleging Section 1983 unreasonable seizure
claims against two Falmouth, Massachusetts police officers.
Plaintiff-appellant James R. Eldredge, who tragically was struck by
a police cruiser during the course of the officers' response to a
911 call, challenges the district court's determination that
qualified immunity shielded the officers from suit. Discerning no
error, we affirm.
I. BACKGROUND
Because this appeal involves a dismissal for failure to
state a claim, Fed. R. Civ. P. 12(b)(6), we recount the relevant
facts based upon the well-pleaded allegations in the amended
complaint. S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010)
(en banc).
On a Wednesday evening in the summer of 2009, James
Eldredge left his Falmouth home at approximately 10:30 p.m.,
accompanied by a friend, Jonathan Dubois, to walk to a nearby
convenience store. Shortly thereafter, at around 10:50 p.m., the
Falmouth Police received an unrelated 911 call reporting a domestic
disturbance at a local residence. The call included, in part, the
following exchange:
Operator: Falmouth Police recorded line, may
I help you?
Caller: . . . [Suspect] is now leaving in a
little blue Toyota Tercel. Um, we've had an
argument. He's been drinking. I asked him to
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leave. The relationship's over. He just
shoved everything off the top of my
refrigerator, smashed it all to the floor.
The kids are here. We've had DSS involved
before and I just, I want him gone. He's got
all his stuff out. I just want him to leave
me alone. I'm very afraid right now.
Operator: Okay. What's your address?
Caller: xxx Sandwich Road number one.
After verifying her full name and that of the suspect, the caller
stated that her ex-boyfriend was "outside trashing my porch right
now." Armed with this information, three patrolmen – defendant
Michael Simoneau and defendant Thomas Maguire, as well as Officer
Clifford Harris – set out to respond in three separate police
cruisers.1
As the police responders drove towards the site of the
disturbance these two heretofore unrelated events converged. In
1
The Falmouth Police Department originally dispatched two
patrol cars, manned by Officers Simoneau and Harris, to answer the
call. It became clear that Officer Maguire would be joining
Simoneau and Harris when at or around 10:57 p.m. he radioed the
station stating, "[w]e're going out shortly," and requesting the
name for the domestic disturbance. The dispatcher responded to
Maguire's request by summarizing the disturbance as follows:
"[Caller] the calling party; said [Suspect] who things are now over
between them. Um, [Caller] in fear [Suspect] has trashed the
inside of [Caller's] house, tossed things off [Caller's]
refrigerator. And [Suspect] now outside on the porch doing same."
As the plaintiff himself acknowledges, we cannot be certain
based on this radio transcript whether Maguire was informed of the
full details of the 911 call, including, in particular, the
caller's mention of the alleged assailant's automobile. We need
not speculate one way or another. Rather, we assume for present
purposes that Maguire was so informed, because even with this
assumption made in the plaintiff's favor, his claims are subject to
dismissal for the reasons set forth infra.
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the lead, Officer Maguire drove north along Sandwich Road at
varying speeds over the posted limit, with his cruiser lights
flashing and siren activated. His course would soon bring the
officers abreast of Eldredge and Dubois, who were walking against
traffic on the grass shoulder of the same road.
As Officer Maguire approached Eldredge and Dubois about
half a mile from his destination, he suddenly decelerated. The
cruiser "nose-dived" to a virtual stop alongside the pedestrians.
Maguire simultaneously activated a spotlight aimed at the men,
causing them to stop and squint at the blinding light. Through the
open passenger side window, Maguire shouted: "Stand right there!"
Both men complied.
Unfortunately, the story does not end there. Officer
Simoneau had been following in his cruiser closely behind Maguire
and rapidly closed the distance between the two vehicles when
Maguire suddenly braked. Mere moments after Maguire shouted to
Eldredge and Dubois, Simoneau's cruiser "rear ended" Maguire's,
caromed off it, and hit Eldredge. Upon impact, Eldredge was
wrapped onto the vehicle's hood and propelled several feet through
the air, suffering serious injuries. According to the complaint,
this collision occurred sometime between 10:57 and 10:59 p.m.
In the aftermath of this event, Eldredge sought recovery
against Officers Maguire and Simoneau, the Town of Falmouth, and
the chief of the Falmouth Police Department. Invoking 42 U.S.C.
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§ 1983, Eldredge claimed that Maguire's show of authority
constituted an unreasonable seizure of him because it amounted to
a detention without adequate justification; that Simoneau also
unreasonably seized him when, similarly lacking adequate
justification, he struck Eldredge with his police cruiser; and that
the Town and its police chief failed to adequately train their
personnel on how to safely respond to incidents reported to the
police. In addition to the federal claims, Eldredge alleged
parallel state civil rights violations, see Mass. Const. art. XIV;
Mass. Gen. Laws ch.12, § 11(I), as well as a state law tort claim
based on the officers' alleged negligence and recklessness during
the event in question, Mass. Gen. Laws ch. 258, § 2.
The defendants moved to dismiss Eldredge's claims
pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted
the motion with respect to the federal claims, concluding that the
individual officers were entitled to qualified immunity and that
the failure to train claims were therefore foreclosed, as well.
With only state law claims remaining, the district court declined
to exercise supplemental jurisdiction and remanded the matter to
state court. This timely appeal ensued.
II. ANALYSIS
On appeal, the plaintiff pursues only his Section 1983
claims against the individual officers. Accordingly, our review is
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limited to an assessment of whether the district court erred in
dismissing those claims on qualified immunity grounds.
A. Standard of Review
We review de novo an order of dismissal for failure to
state a claim. Tambone, 597 F.3d at 441. In conducting this
review, "we accept as true all well-pleaded facts set forth in the
complaint and draw all reasonable inferences therefrom in the
pleader's favor." Artuso v. Vertex Pharmaceuticals, Inc., 637 F.3d
1, 5 (1st Cir. 2011) (citing Tambone, 597 F.3d at 441).
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible if supported by
"factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Id. While "[t]he plausibility standard is not akin to a
'probability requirement,'" it demands "more than a sheer
possibility that a defendant has acted unlawfully." Id. Unless
the alleged facts push a claim "across the line from conceivable to
plausible," the complaint is subject to dismissal. Id. at 1951
(quoting Twombly, 550 U.S. at 570).
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B. Qualified Immunity
The doctrine of qualified immunity is designed to
"balance[] two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably." Pearson v.
Callahan, 555 U.S. 223, 231 (2009). We apply a two-prong analysis
in determining whether this balance weighs in favor of granting a
defendant qualified immunity. Maldonado v. Fontanes, 568 F.3d 263,
269 (1st Cir. 2009). We ask "(1) whether the facts alleged . . .
by the plaintiff make out a violation of a constitutional right;
and (2) if so, whether the right at issue was 'clearly established'
at the time of the defendant's alleged violation." Id. (citing
Pearson, 555 U.S. at 232). A right is "clearly established" if,
given the legal contours of the right allegedly violated and the
facts of the particular case, a reasonable officer would have
understood that his conduct violated that right. Id. "The
relevant, dispositive inquiry . . . is whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation
he confronted." Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199
(2004)).
Applying that framework to this case, the claim against
Officer Simoneau is readily dispensed with under the first prong of
the analysis. The plaintiff contends that Simoneau seized him by
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striking him with his police cruiser and did so without adequate
justification, thereby effecting an unreasonable seizure in
violation of the Fourth Amendment. This argument fails at the
outset.
To constitute a seizure implicating the Fourth Amendment,
there must be an "intentional acquisition of physical control."
Brower v. County of Inyo, 489 U.S. 593, 596 (1989)(emphasis added);
see also Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-95 (1st
Cir. 1990). The plaintiff acknowledges as much and concedes that
there are no facts from which to infer that Simoneau intended to
seize him, but he argues that we should impute Maguire's intent to
conduct an investigatory stop to Simoneau. Even were we to indulge
this exhortation, however, it would not be enough. The Supreme
Court has made clear that a Fourth Amendment seizure does not take
place "whenever there is a governmentally caused termination of an
individual's freedom of movement . . . , nor even whenever there is
a governmentally caused and governmentally desired termination of
an individual's freedom of movement . . . , but only when there is
a governmental termination of movement through means intentionally
applied." Brower, 489 U.S. at 596-97 (emphasis in original); see
also, e.g., Horta v. Sullivan, 4 F.3d 2, 10 (1st Cir. 1993)
(holding that no seizure occurred where police officer did not
intend pursuit to end by means of collision with another police
vehicle). There are no facts alleged in the complaint to support
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the inference that Simoneau intended to stop the plaintiff by
striking him with his cruiser. Quite the contrary, the allegations
that Simoneau had been following Maguire at high speeds and
"rear-ended" Maguire's cruiser before "carom[ing]" into the
plaintiff lead to the undeniable conclusion that the collision was
unintentional. As such, the complaint fails to allege a colorable
claim of constitutional dimension against Simoneau.
The plaintiff attempts to blunt the force of this
conclusion by invoking the joint tortfeasor doctrine. With this
invocation, he appears to advance the argument that Simoneau acted
as part of a "team effort" with Maguire to respond to the 911 call
and should therefore be held jointly responsible for what he claims
were the foreseeable consequences of their miscalculated efforts.
Eldredge seeks support for this novel application of the joint
tortfeasor doctrine from our decision in Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553 (1st Cir. 1989). That case does not,
however, stand for the proposition that an officer's participation
in a group operation, without more, is sufficient grounds for
imputing liability for constitutional injuries arising out of that
effort. In reaching the conclusion in Gutierrez-Rodriguez that two
members of a police squad could be deemed the proximate cause of an
automobile driver's injuries notwithstanding that the bullet that
ultimately struck the driver came from a weapon fired by another
squad member, we emphasized that each member of the squad had
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alighted from an unmarked police car and approached the driver's
parked automobile in plainclothes with weapons drawn and ready to
fire. 882 F.2d at 560-61. Each of the officers participating in
this "team effort" had, in other words, intentionally engaged in a
series of acts that would foreseeably result in some member of the
team inflicting constitutional injury. The same simply cannot be
said of Officer Simoneau's actions here.2
Turning to the claim against Maguire, we first note that
it is not mandatory to address the qualified immunity prongs
sequentially. Pearson, 555 U.S. at 236. Because a finding that a
right was not "clearly established" under the second prong of the
analysis is sufficient to warrant a grant of qualified immunity,
see id. at 236-37, discussion of the first prong will in some cases
result "in a substantial expenditure of scarce judicial resources
on difficult questions that have no effect on the outcome of the
case," id. We therefore proceed directly to the "clearly
2
To the extent that Simoneau's "shadowing of Maguire's
cruiser created a situation in which it was foreseeable that
Simoneau would be unable to safely stop in the event that Maguire
might have reason to make a sudden stop," the plaintiff colorably
has alleged a tort, for which the appropriate relief is a state law
tort suit rather than federal civil rights litigation. Pursuant to
the district court's order, that claim now resides in state court.
We note that the defendants have moved to strike transcripts
of two police radio calls that were not part of the record before
the district court but which the plaintiff attached as exhibits to
his reply brief in an attempt to bolster his "team effort" theory.
Assuming without deciding that we could consider the transcripts,
they do not change our analysis. Accordingly, the defendants'
motion to strike has become moot.
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established" prong of the analysis in assessing the claim against
Maguire.
The defendant acknowledges, as he must, that the Fourth
Amendment right to be free from investigatory stops in the absence
of reasonable suspicion was clearly established long before this
tragic event occurred. See, e.g., United States v. Sokolow, 490
U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). But the
relevant inquiry for qualified immunity purposes is not whether
reasonable suspicion to conduct the stop in fact existed, but
whether a reasonable officer could have believed that it did. Put
another way, qualified immunity exists "so long as the presence of
[reasonable suspicion] is at least arguable." McInnis v. Maine,
638 F.3d 18, 22 (1st Cir. 2011) (quoting Prokey v. Watkins, 942
F.2d 67, 72 (1st Cir. 1991)). Accordingly, Maguire urges that,
even assuming that he effected an investigatory stop of the
plaintiff without reasonable suspicion, he is nonetheless entitled
to qualified immunity because the unlawfulness of the detention
would not have been apparent to a reasonable officer standing in
his shoes. We agree.
An investigatory stop, commonly known as a Terry stop,
"requires only articulable facts giving rise to a reasonable
suspicion that a suspect may be involved in criminal activity."
Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009) (citations
omitted). Here, Officer Maguire was responding to a 911 call in
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which a fearful caller relayed an urgent situation that was still
unfolding – namely, that her ex-boyfriend, who had been drinking,
had already "trashed" the inside of her home where children were
present and at the time of the call was continuing his destructive
behavior outside. As Maguire drove towards the site of the
disturbance, he spotted the plaintiff, a male, walking on Sandwich
Road after dark on a weeknight, just minutes after a fresh 911 call
originating only half a mile away. These facts could reasonably
support the suspicion that the plaintiff was the caller's
ex-boyfriend leaving the site of the disturbance. Officer Maguire
was therefore entitled to qualified immunity.
The plaintiff resists this conclusion on two grounds. We
find neither persuasive.
First, Eldredge emphasizes that he did not match the 911
caller's description of her alleged assailant, an individual male
who would presumably be leaving her residence in a blue Toyota
Tercel. Rather, he was found accompanied by a friend and traveling
by foot at a distance that, Eldredge argues, one could not have
reasonably walked in the seven to nine minutes that had passed
since the time of the call. To be sure, these factors may have
reduced the likelihood that the plaintiff was the alleged
assailant. But reasonable suspicion requires "sufficient
probability, not certainty." New Jersey v. T.L.O., 469 U.S. 325,
346 (1985) (quoting Hill v. California, 401 U.S. 797, 804 (1971)).
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Particularly when viewed through the lens of an officer making a
split-second judgment, see Graham v. Connor, 490 U.S. 386 (1989)
("The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split second
judgments . . . ."), we cannot say that Maguire's assessment was so
obviously misguided that no reasonable officer could have reached
the same conclusion.
Second, Eldredge urges us to evaluate Officer Maguire's
actions in the context of his "responsibility to the 911 caller."
He argues that the responding officers' paramount responsibility
was to locate and protect the caller, not to conduct an
investigatory stop of someone whom the caller could readily
identify for questioning at a later time. In effect, he asks us to
consider whether Maguire's course of action was the most sound one
under the circumstances. We decline this invitation to impose a
requirement that the Fourth Amendment does not. Cf. United States
v. LaFrance, 879 F.2d 1, 10 (1st Cir. 1989) (citing United States
v. West, 731 F.2d 90, 93 (1st Cir. 1984)) ("Simply proving that
more efficacious approaches were available does not prove that the
method actually used was unreasonable.").
III. CONCLUSION
The judgment of the district court is affirmed.
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