Lowinger v. Broderick

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2077

LAZAR LOWINGER, ET AL.,

Plaintiffs - Appellees,

v.

WILLIAM T. BRODERICK,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Carter,* District Judge.

James F. Lamond, with whom Alan J. McDonald and McDonald and

Associates were on brief for appellant William T. Broderick.

Thomas J. Chirokas for appellees Lazar Lowinger and Audrey

Lowinger.

March 22, 1995

* Of the District of Maine, sitting by designation.

CARTER, District Judge. In this case Plaintiffs, Lazar
CARTER, District Judge.

and Audrey Lowinger, seek recovery under 42 United States Code

Section 1983 and state tort law1 from Defendants, Sergeant

William T. Broderick ("Broderick") and Commissioner Francis M.

Roache, both of the Boston Police Department; former Boston Mayor

Raymond Flynn; and the City of Boston for damages caused by

Defendants' allegedly false arrest of Lazar Lowinger. Defendant

Broderick, who was sued in his individual and official

capacities, moved for summary judgment asserting his entitlement

to qualified immunity for any of the acts alleged by Plaintiffs.

The district court concluded that the record contained genuine

issues of material fact regarding whether Broderick was entitled

to summary judgment and denied Broderick's motion. We now

reverse. The essential facts, as presented to the district court

by the parties, follow.

I. FACTS AND PROCEDURAL HISTORY
I. FACTS AND PROCEDURAL HISTORY

On September 9, 1987, Defendant Broderick, a sergeant

with the Boston Police Department, was assigned to a police

district located in Brighton as a patrol supervisor. Shortly

after midnight, Broderick responded to a complaint of a loud

party and arrested one person, Stephen Quinn, for disturbing the

peace and possession of a false liquor purchase identification

1 The state law counts in the Complaint include false
imprisonment, malicious prosecution, interference with
contractual relations, intentional infliction of emotional
distress, negligence, and loss of consortium.

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card. Quinn was taken back to the district station where he was

booked and detained.

At approximately the same time as Quinn's arrest,

Plaintiff Lazar Lowinger ("Lowinger"), an attorney, was contacted

at his home by an individual requesting that Lowinger undertake

to represent Quinn. Lowinger contacted the district station and

spoke to Broderick, who refused to provide any information

regarding Quinn's arrest over the phone. Lowinger went to the

police station and entered with two young men, both of whom had

been in the station earlier that night in connection with Quinn's

arrest and had been told to leave because they were intoxicated,

and one of whom had contacted Lowinger to represent Quinn.

Lowinger presented himself at the counter in the

station as Quinn's attorney and showed the officer a small hand-

held tape recorder, stating that he wanted to see Quinn and

intended to record the "proceedings." At that time, Broderick

instructed the two men accompanying Lowinger to leave the station

and expressly told Lowinger that he did not authorize the

recording of the conversation and to turn the recorder off. The

two men left and Lowinger turned off the recorder, placed it on

the counter, and proceeded to have a "heated discussion" with

Broderick regarding the use of the recorder during which

Broderick informed Lowinger that the recording of a conversation

without the knowledge or authorization of the participants was a

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felony.2 The upshot of the discussion was that Lowinger was

unsuccessful in convincing Broderick to permit him to see Quinn.

At some point thereafter, Broderick saw the recorder in

Lowinger's possession once again with its red light on and the

tape moving inside. It is disputed whether Broderick was

speaking at the time the machine was recording. Broderick

instructed the other officers to take Lowinger into custody for

violation of Massachusetts state law against unauthorized

interception of communications. In the criminal prosecution that

followed, Lowinger successfully moved to suppress the small tape

recorder after the state court concluded that, because there were

only a "few words" on the tape from that incident, Lowinger was

merely dictating a memo to himself when he turned on the

recorder.

Lowinger and his wife, Audrey, commenced this civil

action for Defendants' alleged infringement on the Lowingers'

civil rights and for violations of state tort law. Broderick

moved for summary judgment on the basis of qualified immunity and

submitted an affidavit to support his position. Plaintiffs filed

an untimely response to the motion and submitted a copy of the

2 Broderick was making reference to a Massachusetts criminal
statute which imposes penalties upon any person who: "willfully
commits an interception [or] attempts to commit an interception
. . . of any wire or oral communication." Mass. Gen. Laws. Ann.
ch. 272, 99(C)(1). As provided in that section's definitions,
"'interception' means to secretly hear [or] secretly record . . .
the contents of any wire or oral communication through the use of
any interception device by any person other than a person given
prior authority by all parties to such communication." Id.

99(B)(4).

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"Findings Regarding Allowance of Defendant's Motion to Suppress"

("Findings") issued by the Massachusetts District Court during

the unsuccessful criminal prosecution of Lowinger.3 When the

summary judgment motion was decided in recorded proceedings

before the district court, the court considered both Broderick's

affidavit and the state court's Findings, concluding that a

genuine issue of material fact existed regarding whether

Broderick was entitled to qualified immunity. This interlocutory

appeal by Broderick followed.

II. ANALYSIS
II. ANALYSIS

A. Jurisdiction
A. Jurisdiction

As a preliminary matter, Lowinger disputes whether this

Court has proper jurisdiction over the appeal since the district

court's denial of summary judgment was not a "final order" from

which an appeal may follow.

It is well-settled that a court of appeals has

jurisdiction over an interlocutory appeal from a district court's

denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511

(1985). The Supreme Court in Mitchell explained that immunity,

whether absolute or qualified, has the "essential attribute" of

entitling its possessor to avoid standing trial. Thus, the

doctrine provides "immunity from suit rather than a mere defense

to liability; and . . . it is effectively lost if a case is

3 The Commonwealth of Massachusetts sought review of the
District Court's Order suppressing the recorder but later
withdrew its appeal. Appendix at 63-65.

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erroneously permitted to go to trial." Id. at 526. See also

Anderson v. Creighton, 483 U.S. 635 (1987).

This Court, time and again, has heeded the Supreme

Court's instructions in this area and exercised jurisdiction over

such appeals, including appeals from district courts that had

concluded that there were genuine issues of material fact, and,

on several occasions, this Court has reversed the denial of

summary judgment. See, e.g., Febus-Rodr guez v. Betancourt-

Lebr n, 14 F.3d 87, 90 (1st Cir. 1994); Rogers v. Fair, 902 F.2d

140, 142 (1st Cir. 1990); Fonte v. Collins, 898 F.2d 284, 285

(1st Cir. 1990); Newman v. Massachusetts, 884 F.2d 19, 22 (1st

Cir. 1989); Mariani-Gir n v. Acevedo-Ruiz, 877 F.2d 1114, 1120

(1st Cir. 1988); Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.

1989). If the district court was in error in denying summary

judgment, permitting the immediate appeal of such denials avoids

subjecting officials unnecessarily to discovery and trial.

Accordingly, our review of the district court's actions here is

proper and, since those actions address questions of law, the

district court's conclusions are subject to plenary review.

Febus-Rodr guez, 14 F.3d at 90.

B. Summary Judgment and Qualified Immunity
B. Summary Judgment and Qualified Immunity

The central question presented by this appeal is

whether the district court properly concluded that the record

demonstrated genuine issues of material fact regarding

Broderick's entitlement to immunity and, therefore, that

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Broderick was not entitled to summary judgment as a matter of

law. Broderick argues on appeal that the record in this case

substantiates his entitlement to qualified immunity and that the

district court erred when it concluded that genuine issues of

material fact were generated through the parties' submissions on

the motion. Although Broderick has raised other issues in this

appeal, our resolution of this primary matter eliminates our need

to reach these other issues.4

The inquiry for a district court's resolution on a

motion for summary judgment brought by an official seeking

qualified immunity is "whether a reasonable official could have

believed his actions were lawful in light of clearly established

law and the information the official possessed at the time of his

allegedly unlawful conduct." Id. at 91 (quoting McBride v.

Taylor, 924 F.2d 386, 389 (1st Cir. 1991)). Although, as with

any summary judgment determination, all facts and reasonable

inferences are construed in favor of the nonmoving party, the

analysis employed to determine whether an official is entitled to

4 Broderick raises certain procedural issues in his appeal,
which we do not reach today. Specifically, Broderick argues that
since the Lowingers' opposition to his Motion for Summary
Judgment was untimely under local rules, it should have been
disregarded by the district court. Further, Broderick argues
that the district court erred by relying on the state court's
Findings in lieu of affidavits or other submissions from the
Lowingers. This Court's primary analysis of the denial of
summary judgment here has assumed that the District Court
properly considered Plaintiffs' response and the Findings in
opposition to the motion for summary judgment. Since, even with
those assumptions, we conclude that Broderick was entitled to
summary judgment, we need not decide whether the district court
should have disregarded either Plaintiffs' response or the
Findings of the state court.

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summary judgment is quite generous. A "reasonable, although

mistaken, conclusion about the lawfulness of one's conduct does

not subject a government official to personal liability."

Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991). This Court

has observed that the "qualified immunity standard 'gives ample

room for mistaken judgments' by protecting 'all but the plainly

incompetent or those who knowingly violate the law.'" Rivera v.

Murphy, 979 F.2d 259, 263 (1st Cir. 1992) (quoting Hunter v.

Bryant, 116 L.Ed.2d 589, 596 (1991) (per curiam)). Under this

analysis, "A court must look to the 'objective legal

reasonableness' of an official's conduct, as measured by

reference to clearly established law." Mariani-Gir n, 877 F.2d

at 1116. Therefore, since even erroneous decisions by officials

may be entitled to qualified immunity, the analysis employed to

determine entitlement to qualified immunity warrants an entirely

different approach from that employed to evaluate the merits of

Plaintiffs' underlying claims. Id.; Morales v. Ram rez, 906 F.2d

784, 787 (1st Cir. 1990).

Although the district court here correctly observed at

the outset that Broderick was entitled to summary judgment "if a

reasonable police officer could have believed he had probable

cause to arrest the plaintiff," it is clear from the court's

subsequent remarks that its true focus was the merits of

Plaintiffs' underlying case when it determined whether a genuine

issue of material fact existed on this record. Appendix at 776.

Without reaching the issue of whether the state court Findings

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constituted a proper form of supporting documentation for

consideration on a summary judgment motion,5 this Court

concludes that the district court was in error when it relied

upon certain conclusions of the state court to determine the

existence of a genuine issue of material fact regarding

Broderick's entitlement to summary judgment.

The portion of Broderick's affidavit pertinent to this

motion states:

I then attempted to answer Attorney
Lowinger's questions regarding the person
he identified as his client. Within a
short time after I started doing so, I
observed that Attorney Lowinger had the
tape recorder cupped within his hands.
Despite this, I observed a red light
illuminated on the recorder, and that the
tape was turning in the recorder.

App. at 40. It is beyond dispute that this statement by

Broderick, standing alone, establishes a reasonable belief on his

part that he was being secretly recorded without his permission

in violation of a state criminal statute.6 The state court

Findings considered by the district court to generate a factual

dispute on this motion were: "Lowinger then stepped back turned

on the recorder to dictate a memo to himself regarding the

5 See supra note 4.

6 Upon its review of Broderick's affidavit, the district court
observed, "If these facts were undisputed, it appears the
defendant would be entitled to summary judgment because on those
facts, a police officer could reasonably believe that there was
probable cause that the plaintiff was secretly tape-recording a
conversation with the defendant." App. at 78. Although our
review of such conclusions of law is plenary, we see no reason to
reach a different result, nor have Plaintiffs provided any.

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refusal to allow him to see Quinn," and "By stipulation the tape

recorder contained, relative to this whole incident, on tape a

very few words indicating that the two young men with Lowinger

leave the building." App. at 61, Findings Nos. 9 and 12.

These Findings, however, do nothing to refute the

observations by Broderick in the above-quoted portion of his

affidavit. Instead, the Findings address the merits of

Lowinger's criminal case and, thus, do not create a genuine issue

of material fact germane to the summary judgment analysis for

qualified immunity here. While subsequent investigation and

adversarial fact-finding hearings may have established that, in

fact, Lowinger was not secretly taping his conversation with

Broderick, such a conclusion does not contradict the assertion by

Broderick that, based upon his observations at the time, he

thought that Lowinger was making such a recording.7 Similarly,

the discovery that the tape did not contain a recording of that

conversation does not negate what Broderick had previously

reasonably concluded based upon all of the circumstances, but

merely supports Lowinger's position before the Massachusetts

7 Thus, this case does not present the scenario of the "rare
case" described in Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir.

1991), in which a determination of qualified immunity as a matter
of law, after assuming all facts in a plaintiff's favor, is
"impossible" due to conflicting evidence as to the "underlying
historical facts." Such facts could include "if what the
policeman knew prior to the arrest is genuinely in dispute, and
if a reasonable officer's perception of probable cause would
differ depending on the correct version, that factual dispute
must be resolved by a fact finder." Id. Here, there is no

dispute about what Broderick knew at the time but, rather, the
dispute is over whether his perception was accurate. Only the
former is relevant to the qualified immunity analysis.

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District Court that he was not guilty of intercepting

communications.

The district court attached great significance to its

conclusion that a genuine dispute exists as to whether Broderick

was speaking at the time of the recording. Broderick's affidavit

suggests that he was speaking, but the district court drew the

inference that he was not, based upon the Finding submitted by

Plaintiffs that only a "very few words" were on the recording.

The basis for such an inference is not plainly apparent to this

Court.8 More importantly, however, whether Broderick was

speaking at the precise moment he noticed the recorder in

operation is not determinative of whether he had the reasonable

belief that Lowinger was taping their conversation. Plaintiffs

did not produce any evidence to directly refute Broderick's

affidavit on this point. There is no indication, for example,

that Broderick knew how long the recorder was on or that he knew

at that time that none of his words had been or would be recorded

-- he only perceived that the recorder was in close proximity and

that it was recording. That perception, which was unchallenged

in the proceedings below, establishes a reasonable belief on

Broderick's part that Lowinger was attempting to secretly tape

their conversation without Broderick's authorization in violation

of Massachusetts law.

Lowinger also argues that the contents of the tape are

8 One can make a similar negative inference from that Finding
that Lowinger was not dictating a memo since there is no evidence
to that effect.

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relevant to this motion since they "present[] a challenge to

Broderick's credibility." Brief of Appellee at 23. As noted

already, the tape's contents do nothing to challenge Broderick's

current position regarding his perceptions and beliefs at the

time the recording was made.9 At most, such evidence

demonstrates that Broderick may have been mistaken in such

perceptions and beliefs but, as explained above, such errors are

irrelevant to the preliminary determination of entitlement to

qualified immunity. In short, while the parties' submissions are

conflicting with respect to certain facts, they do not create a

dispute regarding Broderick's reasonable beliefs. Accordingly,

since there is no genuine issue as to any material fact, judgment

should be entered in favor of Defendant William T. Broderick on

the basis of his qualified immunity from judgment.

Reversed and remanded with directions to enter summary

judgment for Defendant Broderick on the claim made under 42

United States Code Section 1983 and to dismiss without prejudice

the claims based on state law.

9 The issue facing the district court would have been quite
different if, for example, Plaintiffs could provide evidence of
actions or statements by Broderick at the time of the incident
which would tend to negate his statements of his observations as
provided in his affidavit. If such truly conflicting evidence
were presented, then the court would have been faced with the
scenario described in Prokey, note 7 supra, and entry of summary

judgment for Broderick would be inappropriate.

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