UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2481
DAVID LALLEMAND,
Plaintiff, Appellant,
v.
UNIVERSITY OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Boudin and Stahl, Circuit Judges,
and Fuste,* District Judge.
Vincent A. Indeglia with whom Indeglia & McGovern was on brief
for appellant.
Thomas M. Elcock with whom David E. Maglio, Stephen P. Harten and
Morrison, Mahoney & Miller were on brief for appellees.
November 22, 1993
*Of the District of Puerto Rico, sitting by designation.
BOUDIN, Circuit Judge. On Friday evening, October 27,
1990, Michelle Eckman, a student at the University of Rhode
Island, attended a fraternity party at the TKE fraternity.
Very early on Saturday morning, Eckman appeared at the
university health clinic. She reported that she had been
raped at the TKE fraternity around midnight by a "pledge"
named "Dan" who was about 6 feet tall with feathered-back
blond hair. She said that other men had attempted to assault
her. She repeated her charge, in interviews or in writing,
during the next several hours.
At around 8 a.m. on Saturday morning, October 28, 1990,
Lieutenant James McDonald of the university police
interviewed Eckman, obtained another description of the rape,
and was told by Eckman that her assailant wore a TKE pledge
pin. Other officers then obtained separate photographs of
all 21 TKE pledges and McDonald brought Eckman to the police
station to view the numbered photographs. In the presence of
McDonald and another officer, Eckman positively and without
hesitation identified David Lallemand as the man who had
raped her.1 Based on this photographic identification,
1Lallemand is about 6 feet 7 inches tall, considerably
above the 6 foot figure first mentioned by Eckman, and he did
not have feathered back blond hair. On the other hand,
Eckman told McDonald that her assailant was much taller than
another police officer, who stood slightly over 6 feet.
Eckman also initially said that Dan lived in her dormitory,
which is not true of Lallemand, but later indicated that she
had merely seen him there.
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McDonald secured a warrant from a state district court judge
and arrested Lallemand on October 30, 1990.
On November 3, 1990, Eckman was interviewed once again
by McDonald and an officer of the Rhode Island state police.
During this interview Eckman said that she remembered
Lallemand fondling her when she entered the room where the
rape took place; but she said that she no longer could recall
the rape itself and could not identify Lallemand as the
rapist. Her explanation was that her memory was suppressing
the rape. At Lallemand's bail hearing on November 7, 1990,
Eckman was unable to identify Lallemand as the man who raped
her, and charges against him were dismissed. A grand jury
investigated but returned no indictment.
Lallemand then filed a civil complaint in the present
case charging McDonald, the university and its president and
others with violations of 42 U.S.C. 1983. The complaint
also made claims under state law but they have not been
pursued on this appeal. Although the section 1983 claims
went beyond false arrest, that is the only charge that
Lallemand has argued in his brief. The essence of the charge
is that McDonald conducted an inadequate investigation,
ignored exculpatory information, and did not disclose all of
the evidence to the state judge who issued the warrant.
Following discovery in this case, McDonald and the other
defendants moved for summary judgment on the ground that
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McDonald's conduct was protected by qualified immunity. The
magistrate judge recommended that the motion be granted,
concluding that at the time of the arrest, McDonald had
probable cause to believe that Lallemand had committed the
offense. The possibility that McDonald might have done more
investigating, said the magistrate judge, did not create
liability under section 1983. The district court adopted the
report of the magistrate judge and dismissed the case. This
appeal followed.
On this appeal, our review on the grant of summary
judgment is plenary, Hoffman v. Reali, 973 F.2d 980, 984 (1st
Cir. 1992), and we assume that genuinely disputed facts and
credibility issues would be resolved in appellant's favor.
Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1990).
Qualified immunity is available if the officer's action was
objectively reasonable even if later found to be mistaken.
Pierson v. Ray, 386 U.S. 547, 555-57 (1967); Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In a false arrest
case, the question normally is whether the arresting officer
could reasonably believe that the information he or she
possessed constituted probable cause. Hunter v. Bryant, 112
S. Ct. 534, 537 (1991).
We begin with the objective reasonableness of McDonald's
conduct, reserving for the moment Lallemand's alternative
argument that McDonald's subjective good faith was an issue
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for the jury. McDonald's broadest defense on appeal is that
he is insulated by the decision of the state judge to issue
an arrest warrant. We agree with Lallemand that McDonald's
reliance on United States v. Leon, 468 U.S. 897, 928 (1984),
is misplaced. Leon does not provide automatic protection
when the warrant itself was issued on the basis of an
affidavit claimed to be recklessly false. 468 U.S. at 914.
See generally Rodriques v. Furtado, 950 F.2d 805, 812 n.8
(1st Cir. 1991). Lallemand claims here that McDonald
possessed information, undisclosed to the state judge, which
negated probable cause.
We think it plain that the information disclosed to the
state judge, if taken alone, established probable cause. In
substance the affidavit set forth Eckman's version of the
incident, and followed it with McDonald's description of
Eckman selecting Lallemand's photograph from the picture
array and positively identifying Lallemand as the man who
raped her. Although Eckman said that the perpetrator gave
his name as Dan, despite a few discrepancies in description,
the affidavit presented facts giving rise to probable cause;
everything turns on what McDonald knew at the time but left
out of the affidavit.
The single most important "fact" allegedly known to
McDonald but not disclosed in the affidavit is that other
eyewitnesses had identified a different man, Michael Lindell,
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as the person who--in the words of Lallemand's brief--was
"Eckman's attacker" and "the perpetrator." We need not weigh
the legal significance of such an omission in the affidavit,
because the supposed "fact" is not supported by the record.
Rather, Lallemand's brief has misstated the record.
What the record indicates is that Michael Brady, the
head of the fraternity, told McDonald and other officers that
Lindell should be "checked out," in the words of Brady's
later handwritten statement. Although the statement does not
explain what Brady told the campus police about Lindell,
Lallemand's brief offers no record citation to any evidence
that anyone identified Lindell as having raped or attempted
to rape Eckman. Instead, there are fragments of evidence--
summaries of witness interviews apparently conducted by
various police officers--that suggest that Lindell may have
pulled off Eckman's clothes and attempted to urinate on her.
Taking the interviews at face value, one might conclude
that Lindell, Lallemand and possibly others had been taking
various liberties with Eckman, who by her own account had had
a good deal to drink. It is very hard to tell from the
record when each witness interview occurred and how much
McDonald knew of these interviews when he filed his arrest-
warrant affidavit. But even if he knew everything just
recited, nothing Lallemand has pointed to in the record
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suggests that Lindell was identified by anyone as a rapist.
Further Eckman had specifically stated that the rapist wore a
TKE pledge pin; Lallemand was a TKE pledge and Lindell was
not.
Depending on what McDonald knew about Brady's suggestion
that the police "check out" Lindell, it might or might not
have been good police practice to investigate Lindell further
before arresting Lallemand. But given Eckman's positive
identification of Lallemand, there was probable cause to
arrest him, and there would have been probable cause even if
the affidavit had disclosed everything just recounted about
Lindell's possible involvement. See generally Krohn v.
United States, 742 F.2d 24, 31 (1st Cir. 1984). What the
witness said about Lindell could easily have been true
without casting any doubt on Eckman's identification of
Lallemand.
It may well be that McDonald ought to have said in the
affidavit submitted to the state judge that Eckman had had a
lot to drink and was probably drunk that evening (several
witnesses, including one friendly to Eckman, so claimed).
That a rape victim was drunk does not, of course, remotely
excuse the offense; still, the only direct witness was Eckman
and her condition bore upon her credibility. Once again full
disclosure would not in any way have undercut probable cause.
Eckman's identification was positive, and there is no
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suggestion that she was incoherent or vague when she gave her
statements to police or made the photographic identification.
See Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987).
Two further claims in Lallemand's briefs require less
discussion. First, contrary to the brief, nothing in the
record citations shows that McDonald knew that Eckman was
unconscious "during" the rape and so could not have
identified anyone; rather, there is some evidence that Eckman
might have passed out "sometime" during the assault. With
this correction, the passing out admission has virtually no
bearing on probable cause. There is nothing remotely
implausible about seeing one's attacker and then becoming
unconscious.
Second, Lallemand's brief makes a considerable point of
the fact that McDonald has admitted that he now doubts
whether a rape occurred, a doubt based on McDonald's
statement that a "rape kit" procedure performed on Eckman
came back "negative." "Not withstanding [sic] this known
fact," says Lallemand's brief, McDonald "still" filed charges
against Lallemand. Lallemand's point is without merit.
McDonald's concession came long after the arrest, during a
deposition in this case, and there is no indication that he
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knew of the negative rape kit report when he made the
arrest.2
Even less need be said about Lallemand's remaining
reasons for his claim that McDonald lacked probable cause or
filed an inadequate arrest warrant. The discrepancies
concerning the assailant's first name, hair style, dormitory
and height are trivial, given their nature and the positive
identification of Lallemand by Eckman. Lallemand's argument
that McDonald tampered with evidence is not seriously
supported. The undisputed facts show not only that McDonald
had an objectively reasonable basis for believing that
probable cause existed--which is enough for qualified
immunity, Hunter, 112 S. Ct. at 536--but also that probable
cause actually existed.
Lallemand also claims that McDonald acted in subjective
bad faith and that this presented a factual issue for the
jury. The Supreme Court in Harlow v. Fitzgerald, 457 U.S. at
818, cast great doubt on whether such a claim has a legal
basis. See Floyd v. Farrell, 765 F.2d 1, 6 (1st Cir. 1985).
In any event, there is here no factual basis for the claim.
The main "evidence" of such bad faith is the admission made
2On the contrary, it appears that the rape kit samples
were submitted for analysis at about the time the arrest was
made. This may, or may not, have been poor police procedure;
but a rape kit analysis is not a predicate to probable cause
where the accuser says that she has been raped and identifies
the victim.
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by McDonald in his deposition that the rape kit results made
him question whether anyone had raped Eckman. Since this
admission and the knowledge it reflects both came after the
arrest, they provide no evidence of bad faith at the only
time that matters.
This brings us to Lallemand's final argument. It
appears that his counsel sought to subpoena police files and
grand jury testimony bearing on this case in connection with
this civil action. The district judge quashed the subpoenas
and entered a protective order. On this appeal, Lallemand
asserts that the files and grand jury testimony were crucial
to his case--the assertions of need are fairly general--and
that the district court erred in not enforcing the subpoenas.
We need not pursue the question whether these materials
were discoverable under Rhode Island law, a question raising
legal issues that Lallemand does not adequately brief.
McDonald's brief says that practically all of the police
files were turned over during a deposition; that the district
court's action limiting discovery was expressly subject to
reconsideration based on a more specific showing of need; and
that in opposing summary judgment Lallemand did not ask for
further discovery or claim that he could not adequately
respond because of the quashed subpoenas. Lallemand has not
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troubled to file a reply brief contesting these assertions.
Taking them as conceded, they resolve the matter.
The last issue on appeal is the claim of McDonald's
counsel that double costs and attorneys' fees should be
awarded because the appeal was frivolous, was brought in bad
faith and was premised upon a deliberate distortion of the
factual record. See 28 U.S.C. 1912, 1927; Fed. R. App. P.
38. In our view, there were just enough loose ends in the
investigation to make the appeal legitimate, although very
likely to fail. But an appeal can be weak, indeed almost
hopeless, without being frivolous, and we think an award of
double costs or attorneys' fees is not warranted.
In this case, the proper objection is not to the pursuit
of the appeal; it is to the various distortions of the record
wrought by Lallemand's brief. The worst examples, some
repeated twice or more in the brief, have already been
mentioned. As is usually the case, these tactics undermine
rather than bolster the client's position. The distortions
are easily rebutted, and they distract attention from better
arguments. And once it is lost, a court's trust in counsel
is not readily restored.
The judgment is affirmed with ordinary costs taxed to
appellant. Appellees' request for double costs and
attorneys' fees is denied.
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