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.
-32-
Wilson v. City of Boston
Court: Court of Appeals for the First Circuit
Date filed: 2005-08-31
Citations: 421 F.3d 45
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