United States Court of Appeals
For the First Circuit
Nos. 04-1891; 04-1899
ERIC R. CRETE,
Plaintiff, Appellee/Cross-Appellant,
v.
City of Lowell,
Defendant, Appellant,
EDWARD DAVIS III, in his personal capacity and as
Superintendent of the Lowell, Massachusetts Police
Department; BRIAN J. MARTIN, in his official
and personal capacities,
Defendants, Cross-Appellees,
STEPHEN CIAVOLA, in his official and personal capacities;
TERRANCE KANE, in his personal capacity; RICHARD JOHNSON,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Daniel S. Sharp for Crete.
Christine P. O'Connor, City Solicitor, with whom Maria Sheehy,
Assistant City Solicitor, was on brief, for City of Lowell.
August 11, 2005
LYNCH, Circuit Judge. Two issues are presented by this
case, raising claims of negligent hiring by a city. The first is
whether the district court was correct in entering summary judgment
against plaintiff Eric Crete's federal civil rights claim, under 42
U.S.C. § 1983, that the City of Lowell was deliberately indifferent
to Crete's rights when it hired Officer Steve Ciavola in the fall
of 1995. Crete says Ciavola used excessive force when he arrested
Crete in March of 1999.
The second question, under Massachusetts law, is whether
the City's hiring of Ciavola is within the discretionary function
exception to the Massachusetts Tort Claims Act, Mass. Gen. Laws ch.
258, § 10(b) (MTCA). Put differently, does the MTCA permit a
negligent hiring claim against a city which hires a police officer
under the Massachusetts Civil Service System?
We review both issues de novo. The district court was
correct to dismiss the section 1983 claim but erred in not
dismissing the MTCA claim. We vacate the MTCA verdict and direct
entry of judgment for the City.
I.
We recite the facts in the plaintiff's favor as the
summary judgment rule requires. Young v. City of Providence, 404
F.3d 4, 15 (1st Cir. 2005).
Steve Ciavola was hired as a police officer with the City
in the fall of 1995. In March 1999, Ciavola arrested Crete and
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during the course of the arrest Ciavola "threw [Crete] down onto
the pavement" and "pushed [his] head onto the sidewalk three or
more times." Crete alleged that he never "threatened or physically
resisted" Ciavola in any way, so as to justify Ciavola's response.
Crete filed suit in federal court claiming violations of
the federal constitution and Massachusetts law. As to Ciavola he
alleged excessive force, malicious prosecution, assault and
battery, and intentional infliction of emotional distress.1 As to
the City, he alleged two different theories of liability attacking
the City's decision to hire Ciavola: (1) liability under 42 U.S.C.
§ 1983 for failing to adequately screen Ciavola during hiring and
(2) liability under the MTCA for negligently hiring Ciavola.
The negligent hiring claim was based on the allegation
that the City knew or reasonably should have known that Ciavola had
a criminal history, including one conviction for assault and
battery, and that the City failed to exercise reasonable care when
it hired Ciavola as a police officer. As a result of the negligent
hiring, Crete alleged that he suffered injuries at the hands of
Ciavola and incurred expenses due to those injuries.
The City filed for summary judgment on both counts. On
August 30, 2002, the district court granted the City and other
1
Ciavola filed for bankruptcy and the claims against him were
stayed. The excessive use of force by Ciavola was part of the
claim against the City for negligent hiring, and this evidence was
heard by the jury. The plaintiff voluntarily dismissed the claims
against Ciavola after this trial.
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defendants summary judgment as to the section 1983 claim2 and
denied summary judgment as to the negligent hiring claim. The MTCA
negligent hiring claim proceeded to trial;3 the jury found the City
liable and awarded damages of $143,000. This amount was
subsequently reduced to $100,000 pursuant to Mass. Gen. Laws ch.
258, § 2.
We describe the undisputed record as to the hiring of
Ciavola in the fall of 1995, noting there is no claim that his
hiring violated any statute or regulation or did not comply with
the City's hiring process in place at that time.
In Massachusetts, hiring of police officers is governed
by state civil service laws and regulations. The civil service
laws grant and restrict certain types of hiring authority and also
set up procedural restrictions. As to substantive restrictions,
the statute forbids the hiring of an individual who has been
convicted of a crime within one year of the date of hiring. See
Mass. Gen. Laws ch. 31, § 50. Nonetheless, the statute grants an
2
City Manager Brian Martin and Superintendent Edward Davis
were defendants in the section 1983 claim and are listed as parties
on appeal. Both declined to file a brief. Crete offers no legal
or factual argument on appeal which distinguishes the claim against
the City from the claim against the individuals. Any separate
arguments as to Martin or Davis are therefore waived. We affirm
the grant of summary judgment as to them as well.
3
The City also alleges that the district court erred in the
admission of certain evidence introduced by Crete during trial.
Because we hold that hiring was a discretionary function and
therefore, the claim should never have gone to trial, we do not
address these claims of error.
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exemption from that restriction. If an applicant has been
convicted of any offense for which the "sole punishment imposed was
(a) a fine of not more than one hundred dollars, (b) a sentence of
imprisonment in a jail or house of correction for less than six
months, with or without such a fine, or (c) a sentence to any other
penal institution under which the actual time served was less than
six months, with or without such fine," then the statute expressly
gives the hiring authority "discretion" to hire that applicant.
Id. Outside of this one-year period, this substantive restriction
on the City's exercise of discretion does not apply.4 Sergeant
Fleming, the director of recruitment and hiring for the City in the
fall of 1995, testified that if the background check reveals
something about the candidate's past which is not immediately
disqualifying (either because the conviction fell outside of the
one-year period or because it fell within the exception to the
substantive restriction of Mass. Gen. Laws ch. 31, § 50), but is of
concern, the appointing authority is allowed to look into the
incident further.
There is no dispute that the City ran the required
Massachusetts Criminal Offender Record Information (CORI) and the
National Criminal Information System (NCIS) inquiries on Ciavola.
4
Mass. Gen. Laws ch. 41, § 96A prohibits any person "who has
been convicted of any felony" from being appointed as a police
officer "of a city, town or district." This statute was not
implicated in the hiring of Ciavola because Ciavola's conviction
was a misdemeanor.
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Ciavola's CORI report revealed two citizen criminal complaints
filed against him for assault and battery, arising out of the same
incident. In August 1994, one complaint resulted in a misdemeanor
assault and battery conviction and a sentence of one year of
probation. His probation was terminated four months later in
December 1994. The other complaint was dismissed. Thus under the
civil service rules, the City was not precluded from hiring
Ciavola.5 Indeed, as explained later, once the Massachusetts Human
Resources Division (HRD)6 has certified a candidate on a ranked
list, the city will, absent special considerations, ordinarily hire
a candidate in rank order from the list.
The hiring process in place during the fall of 1995, the
time of Ciavola's hiring, required the appointing authority of the
municipality to request a certified list of eligible police officer
candidates from the HRD. Mass. Gen. Laws ch. 31, § 6. City
Manager Martin, the appointing authority for the City, considered
the budget and determined that the City could hire two new police
officers and the appropriate request to HRD was made. Upon receipt
5
The City and Crete both treat December 14, the termination
date of probation, as the date of conviction. We accept this date
as agreed by the parties and do not delve into the state law
question of whether the date of conviction was in August 1994,
outside the one year disqualification period. The difference in
dates as to date of conviction makes no difference to the outcome
of this case, as the City also had discretion in hiring if the
August date is used.
6
The HRD is a Massachusetts agency responsible for hiring
civil service employees.
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of such request, the HRD "certif[ied] from the eligible list
sufficient names of persons for consideration of their
qualifications for appointment by the appointing authority." Id.7
In accordance with Mass. Gen. Laws ch. 31, § 25, the
City notified the individuals on the HRD list and asked them to
pick up an application if they wanted to be considered for the
available positions. Ciavola filled out an application. Once the
department received the applications, a criminal history check was
performed on each applicant. If the applicant was not ineligible
under Mass. Gen. Laws 31, § 50 due to disqualifying entries in the
report, then a background check was performed.
Michael Farnum, a court prosecutor in Lowell district
court who was trained in conducting background checks, conducted
Ciavola's background check. Farnum checked Ciavola's past
employment and spoke with his references, all of whom were
favorable.
Each candidate interviewed for the position. During
Ciavola's interview, Officer Fleming made further inquiries into
the events surrounding the conviction. Ciavola indicated that he
pled guilty because he had no money and he could not afford a
lawyer. Fleming followed up the interview with a call to Chief
Probation Officer Gary McGee who stated that Ciavola was "level
7
HRD ranks the candidates on list based on the score obtained
on the civil service exam and a variety of other considerations
such as geographical location and veteran status. See Mass. Gen.
Laws ch. 31, § 26.
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headed and would make an excellent police officer." Fleming noted
that "McGee said he normally does not give job references but felt
compelled in this situation in order that Ciavola get a fair deal."
Upon conclusion of the entire process, Fleming compiled
all the information and made hiring recommendations to
Superintendent Davis. Davis accepted the recommendation of
Ciavola, and Ciavola was given a provisional offer of employment.8
Although the "ultimate selection [for appointment or
promotion of civil service officers] is left to the discretion of
the appointing authority," Burns v. Sullivan, 473 F. Supp. 626, 631
(D. Mass. 1979), offers must be handed out in accordance with an
individual's ranking on the list received from HRD unless the City
has good reason to offer the appointment to a lower ranking
individual. Mass. Gen. Laws ch. 31, § 27. If the City wants to do
so, it must "bypass" or "remove" the higher ranking individual. If
a candidate is "bypassed," he or she stays on the list, but is not
hired for that position because the City has a good and credible
reason not to hire the individual at that time. To be "removed"
means that the City elects to take the candidate off the list
because the City has no intention of ever hiring that person. To
8
Fleming testified that a provisional offer means that the
City is prepared to hire the candidate if his or her mental and
physical health are in order. Each provisional hire must pass a
medical, psychological and fitness exam. If the individual does
not pass one of these tests, the City cannot hire that individual;
if the individual passes the tests, the department generally must
hire him or her.
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bypass or remove, the City must file a list of stated and
legitimate reasons with the administrator of the HRD. See id. The
administrator has a limited power to accept or reject the reasons
given by the City for the bypass. See MacHenry v. Civil Serv.
Comm'n, 666 N.E.2d 1029 (Mass. App. Ct. 1996). Although the civil
service laws cabin the discretion of the City as to which factors
can be considered,9 the City can "remove" an individual on the list
if it concludes the appointment of that person "would be
detrimental to the public interest." Massachusetts Human Resources
9
The Civil Service laws are in place in an effort to guard
against political considerations, favoritism, and bias in
governmental employment decisions. See Murray v. Justices of
Second Dist. Ct. of E. Middlesex, 451 N.E.2d 408 (Mass. 1983).
Basic merit principles should guide all decisions in the civil
service system, including:
(a) recruiting, selecting and advancing of employees on
the basis of their relative ability, knowledge and skills
including open consideration of qualified applicants for
initial appointment; (b) providing of equitable and
adequate compensation for all employees; (c) providing of
training and development for employees, as needed, to
assure the advancement and high quality performance of
such employees; (d) retaining of employees on the basis
of adequacy of their performance, correcting inadequate
performance, and separating employees whose inadequate
performance cannot be corrected; (e) assuring fair
treatment of all applicants and employees in all aspects
of personnel administration without regard to political
affiliation, race, color, age, national origin, sex,
marital status, handicap, or religion and with proper
regard for privacy, basic rights outlined in this chapter
and constitutional rights as citizens, and; (f) assuring
that all employees are protected against coercion for
political purposes, and are protected from arbitrary and
capricious actions.
Mass. Gen. Laws ch. 31, § 1.
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Division, Personnel Administration Rules, PAR.09. One such
consideration may be past criminal history. A candidate has the
right to appeal the HRD's approval of a City's bypass or removal
decision to the Civil Service Commission (CSC). See Mass. Gen.
Laws ch. 31, § 2(b).
During this hiring cycle, Ciavola was fourth on the list
of candidates who made themselves eligible for the position of
police officer with the City. The first candidate was bypassed
because of a "very serious record revolving around domestic
violence issues." The second candidate was bypassed because he
"had been charged with a felony assault and battery with a
dangerous weapon, a shod foot." The next candidate and Ciavola
were both given provisional offers.10 Ciavola passed all of the
required tests and was selected for appointment on November 2,
1995.
II.
Negligent Hiring under the MTCA
The "negligent hiring" claim is based on the City's
decision not to bypass Ciavola. The essence of plaintiff's
negligent hiring claim is that the City should have bypassed
Ciavola in light of his prior criminal conviction. Unless it went
through the bypass procedure, the City was required to hire him.
10
The third candidate on the list failed the physical fitness
test and therefore could not be hired.
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Thus at least two types of specific discretion are involved. The
first is the discretion given the City to hire Ciavola despite the
conviction. Second, if the City did not want to hire Ciavola, it
had discretion whether to use the bypass or the removal procedure.
The Massachusetts Supreme Judicial Court (SJC) has never
directly addressed the issue of whether claims of negligent hiring
of police officers (or other municipal employees), hired pursuant
to the civil service laws, are within the discretionary function
exception to the MTCA. Nonetheless, the SJC has a fairly well
established structure for analysis of such questions and the
outcome in this case is clear.11 Indeed, to hold that there was a
viable MTCA claim here would be in conflict with Massachusetts law
which protects municipalities from liability in certain situations.
The MTCA is a legislative waiver of the state's sovereign
immunity and provides for tort liability against the municipality
for the negligence or wrongful conduct of its employees:
Public employers shall be liable for injury or
loss of property or personal injury or death
caused by the negligent or wrongful act or
omission of any public employee while acting
within the scope of his office or employment
in the same manner and to the same extent as a
private individual under like circumstances.
Mass. Gen. Laws ch. 258, § 2.
11
As a federal court sitting in diversity, we apply state law
as we understand it. See Gill v. Gulfstream Park Racing Ass'n,
Inc., 399 F.3d 391, 402 (1st Cir. 2005). No request to certify
this question to the Massachusetts SJC was made at any time by any
party.
-11-
But that liability is subject to exceptions, most notably
the discretionary function exception:
The provisions of [liability], shall not apply
to: -- . . .
(b) any claim based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty on
the part of a public employer or public
employee, acting within the scope of his
office or employment, whether or not the
discretion involved is abused; . . . .
Mass. Gen. Laws ch. 258, § 10(b). That exception abrogated and
narrowed the exception to immunity which existed at common law.
The model used by the Massachusetts legislature in
enacting the MTCA was the Federal Tort Claims Act (FTCA). The SJC
has identified a two step analysis for application of the
discretionary function exception: (1) whether the governmental
actor had any discretion at all as to what course of conduct to
follow, and, if so, (2) whether the discretion that the actor had
is that kind of discretion for which § 10(b) provides immunity from
liability. Greenwood v. Town of Easton, 828 N.E.2d 945, 948
(Mass. 2005); Harry Stoller & Co. v. City of Lowell, 587 N.E.2d
780, 782-83 (Mass. 1992) (citing Berkovitz v. United States, 486
U.S. 531, 536 (1988)). The first step is satisfied here. The City
had "discretion" to hire an individual who had a conviction within
one year of hiring when the punishment involved less than six
months of confinement, as in the case of Ciavola. Mass. Gen. Laws
ch. 31, § 50. There is no regulation or policy that mandates a
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particular outcome; instead, the City made a choice not to bypass
Ciavola for a different candidate with a different background.
The parties have framed the case around the second step.
The district court held, on summary judgment, that the only
relevant inquiry on the second step is whether the discretion is
"an integral part of government policy making or planning." The
district court found it self-evident that the answer to that is
no.12 That was error. The City renewed the issue by filing a
Motion for Judgment as a Matter of Law at the end of trial on the
negligent hiring claim, and the district court denied the motion
without opinion.
The tests used by the SJC consider a number of factors,
not just the "integral part" factor used by the district court.
See, e.g., Greenwood, 828 N.E.2d at 949-50. The SJC has stated
that the key to determining whether the second step is satisfied,
and thus immunity is provided, is whether the discretionary action
at issue involves policy making or planning. See Stoller, 587
N.E.2d at 783. "Where there is room for policy judgment and
decision, there is discretion." Barnett v. City of Lynn, 745
N.E.2d 344, 346 (Mass. 2001) (quoting Patrazza v. Commonwealth, 497
N.E.2d 271 (Mass. 1986)). Even decisions made at the operational
12
In holding so, it relied on a pre-MTCA case, Whitney v. City
of Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977). Although Whitney
is a useful guide in determining the scope of the discretionary
function exception, see Stoller, 587 N.E.2d at 783, it does not
purport to construe the MTCA.
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level or made based on an individual, case-by-case analysis, can
involve conduct immunized by the MTCA, as long as the conduct
involves considerations of public policy. See Stoller, 587 N.E.2d
at 784 (citing United States v. Gaubert, 499 U.S. 315, 325-26
(1991)); Pina v. Commonwealth, 510 N.E.2d 253, 257 (Mass. 1987)
(citing Bartel v. Fed. Aviation Admin., 617 F. Supp. 190, 196 n.29
(D.D.C. 1985)).
The SJC also relies on at least two additional
considerations to determine whether immunity should exist due to
the exercise of discretion: (1) whether the imposition of liability
might jeopardize the quality of the governmental process or (2)
whether judicial scrutiny of the decision would usurp the power and
responsibility of either the legislative or executive branch of
government. See Pina, 510 N.E.2d at 256-57 (citing United States
v. Varig Airlines, 467 U.S. 797, 814 (1984) and Whitney, 366 N.E.2d
at 1216)); see also Sena v. Commonwealth, 629 N.E.2d 986, 991
(Mass. 1994).
The SJC, in interpreting the FTCA, explicitly adopted the
position that "[w]hen established governmental policy, as expressed
or implied by statute, regulation, or agency guidelines, allows a
Government agent to exercise discretion, it must be presumed that
the agent's acts are grounded in policy when exercising that
discretion." Poly v. Moylan, 667 N.E.2d 250, 255 (Mass. 1996)
(quoting Gaubert, 499 U.S. at 324). The SJC noted that the
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discretionary function exception to the MTCA was guided by the same
exception in the FTCA and determined that the MTCA analysis was
relevant in answering the FTCA question presented. Id. at 254 n.5.
We believe that the SJC, if faced with a similar set of
facts such as the ones before us, would extend the rationale of
Gaubert to the MTCA and would find that the discretion exercised by
the City in hiring Ciavola -- discretion granted to it by the
Massachusetts legislature -- was grounded in policy and was
therefore immune from tort liability. We think this especially
true in the civil service context, as this area of law is heavily
regulated by the legislature and personnel decisions which are in
compliance with the laws and regulations are reviewed
deferentially, as explained below.
But there is an even narrower analysis which itself
requires reversal. The very basis for the negligent hiring claim
is that the City chose not to bypass Ciavola despite his criminal
record. We agree with the City that under Massachusetts law as
construed by the SJC, the discretion exercised in the City's
decision not to bypass Ciavola in the civil service hiring process
was that kind of discretion for which Mass. Gen. Laws ch. 31, § 10b
provides immunity from liability.
The hiring, promotion, and firing of civil service
employees is heavily regulated by statute and by regulation, but in
several instances, the legislature has given the appointing
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authority discretion in making certain employment decisions. For
example, the civil service laws allow the City to bypass or remove
a candidate in favor of a lower ranked candidate as long as they
file a list of legitimate reasons for this bypass with the
administrator of the HRD. This grant of discretion includes the
discretion not to attempt to bypass. See Mass. Gen. Laws ch. 31,
§ 27. The state legislature has also expressly given the City
discretion as to whether to bypass or hire a candidate with a
criminal conviction within one year of hiring; this discretion
presupposes the discretion to hire this person if the conviction
falls outside of the one year period. See Mass. Gen. Laws ch. 31,
§ 50. In addition, the HRD Personnel Administration Rules allow
for the appointing authority to remove candidates from
consideration if it would be "detrimental to the public interest"
to hire them. See Massachusetts Human Resources Division,
Personnel Administration Rules, PAR.09. These decisions involve a
variety of considerations, both merit and policy based. See City
of Cambridge v. Civil Serv. Comm'n, 682 N.E.2d 923, 926 (Mass. App.
Ct. 1997); Burns, 473 F. Supp. at 629 ("When the legislature
enacted [§ 27], it recognized that some degree of discretion was
necessary to insure that the most suitable applicant would fill the
vacancy."); cf. Comm'r of Metro. Dist. Comm'n v. Dir. of Civil
Serv., 203 N.E.2d 95, 101 (Mass. 1964) (Under the civil service
statute which gives preferences to disabled veterans, the
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"appointing authority has the power and duty to protect the public
interest in having only public officers and employees of good
character and integrity.").
When a civil service employee or applicant seeks to
challenge one of these discretionary decisions, the civil service
laws set up the scheme through which this challenge must be made.
See Mass. Gen. Laws ch. 31, § 2(b).13 In these instances, the
legislature determined that a degree of deference is appropriate to
individuals making hiring decisions and has fashioned a statutory
scheme for dealing with these types of claims. The appointing
authority's decision -- as accepted by the administrator, Mass.
Gen. Laws ch. 31, § 27 -- is reviewed by the CSC, id. § 2, and the
CSC's decision is reviewed in the state courts. Each reviewer must
give the appropriate level of deference to the entity it is
reviewing: the CSC must uphold the appointing authority's reasons
if the appointing authority meets its burden of proving that there
was a reasonable justification for the action taken, see City of
Cambridge, 682 N.E.2d at 925, and the state courts must uphold the
determination of the CSC if it applied the proper standard of
13
Similarly, employees with claims of employment discrimination
must follow the exclusive procedures for filing claims against
their employers. See Green v. Wyman-Gordon Co., 664 N.E.2d 808,
811-12 (Mass. 1996). These statutory provisions encompass not only
specific claims under the statute, but also other state common law
and statutory causes of action that in reality deal with the same
subject matter. Id. at 813.
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review and its conclusion was supported by substantial evidence.
Id.
Although the civil service laws do not set out a scheme
for challenges by third parties who claim to be harmed by such
hiring decisions, the principle is the same: the legislature,
through heavy regulation of the civil service system, intended to
insulate these discretionary hiring decisions when they are
exercised in accordance with the civil service laws and
regulations. To ensure the discretionary decisions of governmental
entities would be insulated from liability, the legislature
specifically included an exception to MTCA liability for
discretionary functions. See Pina, 510 N.E.2d at 258. The
legislature's "wish to prevent judicial second-guessing of
legislative and administrative decisions grounded in social,
economic, and political policy through medium of an action in tort"
is an underlying justification for the discretionary function
exemption to the MTCA. Id. (quoting Varig Airlines, 467 U.S. at
814) (quotation marks omitted)). We have found no case from the
SJC opening up a discretionary decision to MTCA liability where the
legislature has explicitly granted discretion to a governmental
agency and directed the agency to consider merit and policy
concerns in the exercise of that discretion.
The civil service laws gave the City two opportunities to
exercise its discretion with regards to Ciavola. In accordance
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with Mass. Gen. Laws ch. 31, § 50, the City exercised its
discretion and elected to hire Ciavola, despite his criminal
conviction for assault and battery. The City also determined that
based on his strong credentials and other indications that he would
make an "excellent officer," there was no reason to bypass him
under Mass. Gen. Laws ch. 31, § 27. After exercising this
discretion, the City then offered the appointment to Ciavola as he
was the next highest ranked individual on the list. The hiring
process here complied with the civil service laws and regulations.
There is no indication that the legislature, in granting
such discretion, intended to permit third party law suits over
whether the City properly handled that discretion not to bypass.
Where the appointing authority has shown to the CSC that it had a
reasonable justification for its bypass decision, that is not
subject to second guessing even by the CSC. See City of Cambridge,
682 N.E.2d at 926 ("It is not within the authority of the [CSC] to
substitute its judgment about a valid exercise of discretion based
on merit or policy considerations by an appointing authority.");
Town of Burlington v. McCarthy, 805 N.E.2d 88, 89 (Mass. App. Ct.
2004) ("It is not for the commission to assume the role of super-
appointing agency, and to revise those employment determinations
with which the commission may disagree."). The legislature surely
did not intend for those decisions to be subject to attack in third
party tort suits. Allowing such suits would allow tort actions to
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"be used as a monkey wrench in the machinery of government decision
making." Pina, 510 N.E.2d at 257 (quoting Cady v. Plymouth-Carver
Reg'l Sch. Dist., 457 N.E.2d 294, 297 (Mass. App. Ct. 1983)).
This conclusion is further supported by the additional
factors, noted above, which are relied on by the SJC to determine
whether discretionary decisions are immune from liability. See
Sena, 629 N.E.2d at 991. Imposition of tort liability in a hiring
that is otherwise legal and comports with the civil service laws
could jeopardize the quality and efficiency of the governmental
process by causing more restrictive hiring practices, perhaps
taking away the City's ability to consider any candidates with a
minor criminal history, even though the current law recognizes that
the City is in the best position to determine whether this
individual should be hired. Finally, continuing judicial scrutiny
over hiring practices such as the City's would impinge on the long-
standing domain of the executive branch, namely the provision of
public safety. See id.
SJC precedent finding other types of local decisions to
be within the discretionary function exception also supports this
outcome. See, e.g., Barnett, 745 N.E.2d at 346 (determining that
the city has discretion in deciding how best to expend its limited
resources in order to provide safe and secure conditions and
insulating from liability the City's decision not to put up guard-
railing); Sena, 629 N.E.2d at 990-91 (finding that an officer's
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decisions as to "whether, when, how, and whom to investigate, and
whether and when to seek warrants for arrest" fall within the
discretionary function exception as they are "based on
considerations of, and necessarily affect, public policy"); Pina,
510 N.E.2d at 257-258 (holding that the decision to deny disability
benefits to a particular individual was insulated from liability
under the discretionary function exception); Patrazza, 497 N.E.2d
at 274 (holding that when a decision "was committed to the
responsibility of the department, whose job was to weigh the costs
and benefits of various approaches," the decision to use unburied
guardrail ends on unlimited access highways was protected by
discretionary function).
Our conclusion is only buttressed by the fact that the
MTCA is modeled on the FTCA and construction of the MTCA is meant
to parallel construction of the FTCA. See Pina, 510 N.E.2d at 257.
This is an important point. The text of the two provisions,
federal and state, are virtually identical.14 The SJC has
consistently provided parallel construction of the MTCA with the
FTCA, and it has relied on the United States Supreme Court's
construction of similar provisions of the FTCA. See Pina, 510
N.E.2d at 257 (The SJC has "look[ed] for assistance from the
14
The discretionary function exemption under the FTCA bars
claims "based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of
the federal agency or an employee of the Government, whether or not
the discretion involved be abused." 28 U.S.C. § 2680(a).
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Federal courts' treatment of cognate provisions of the [FTCA].")
This is particularly true in the SJC's construction of the MTCA's
discretionary function exception. Sena, 629 N.E.2d at 989-90 ("In
particular, Federal case law concerning the Federal Act's
discretionary functions exception has been a source of general
guidance in our examination of [the MTCA discretionary function
exemption.]").
Further, federal law is informative on the issue of
whether hiring decisions may involve government policy making or
planning. This is important because uniformly the federal circuit
courts under the FTCA have found that employer decisions such as
hiring, discipline, and termination of employees are within the
discretionary function exception. See, e.g., Vickers v. United
States, 228 F.3d 944, 950-51 (9th Cir. 2000); Burkhart v.
Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C.
Cir. 1997); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir.
1995); Richman v. Straley, 48 F.3d 1139, 1146-47 (10th Cir. 1995);
Radford v. United States, 264 F.2d 709, 710-11 (5th Cir. 1959).
Beyond the conclusion in those federal cases, the
reasoning is apt. The federal courts have considered that to
determine whether a decision comes within the protection of the
discretionary function exception, "[t]he focus of the inquiry is
not on the agent's subjective intent in exercising the discretion
conferred by statute or regulation, but on the nature of the
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actions taken and on whether they are susceptible to policy
analysis." Gaubert, 499 U.S. at 325. The federal courts have
determined that hiring decisions are susceptible to and involve
policy analysis.15 An entity must weigh budgetary constraints,
public perception, and economic conditions in determining the
number of hires as well as who to hire. In addition, the choice
between several potential employees "involves the weighing of
individual backgrounds, office diversity, experience and employer
intuition." Tonelli, 60 F.3d at 496. These types of decisions are
"multi-factored" and require "the balancing of competing
objectives"; they are of the "nature and quality that Congress
intended to shield from tort liability." Id.; see Burkhart, 112
F.3d at 1217.
We have no basis to think that the SJC, in a radical
departure from its precedents, would ignore this body of federal
law. In prior decisions, the SJC has not done so; to the contrary,
it has adopted the federal law standards and reasoning, which lead
to the unanimous views of the federal courts of appeals, to
construe the same provision in the MTCA. See Sena, 629 N.E.2d at
990-91 (relying in part on reasoning in federal case law to
conclude that an officer's decision "regarding whether, when, how,
15
The federal law approach, we note, addresses the more general
question of whether negligent hiring claims are cognizable and
concludes they are not. See, e.g., Tonelli, 60 F.3d at 496. This
case presents a narrower question the outcome of which the broader
principle reinforces.
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and whom to investigate or to prosecute" was within the
discretionary function exception). Indeed the SJC has explicitly
adopted the reasoning in Gaubert that discretionary decisions based
on public policy, even those decisions made at an operational
level, are protected under the MTCA. See Stoller, 587 N.E.2d at
783-84.
The outcome suggested by Crete would also be a radical
departure from the law of other states: most states also consider
claims of negligent hiring to be barred by the discretionary
function exception. See, e.g., Storm v. Town of Ponce Inlet, 866
So.2d 713, 719 (Fla. Dist. Ct. App. 2004); Harper v. City of East
Point, 515 S.E.2d 623, 626-27 (Ga. Ct. App. 1999); Adams v. City of
Tenakee Springs, 963 P.2d 1047, 1051 (Alaska 1998); Johnson v.
Mers, 664 N.E.2d 668, 674-75 (Ill. App. Ct. 1996); Peterson v. San
Francisco Comm. Coll. Dist., 685 P.2d 1193, 1202 (Cal. 1984). The
parties point to only one state which has reached a contrary
conclusion. See Doe v. Cedar Rapids Comm. Sch. Dist., 652 N.W.2d
439, 447 (Iowa 2002).
B. Entry of Summary Judgment in the Section 1983 Claim:
Relying on County Commissioners of Bryan County v. Brown,
520 U.S. 397 (1997), the district court granted summary judgment
for the City. Given the assurances that despite his assault and
battery conviction, Ciavola would "make an excellent police
officer," the district court found "it cannot be said that it was
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'plainly obvious' based on Ciavola's record that hiring him would
result in the violation of a third party's rights." We look to the
summary judgment record and review the district court's decision de
novo.
In Young v. Providence, 404 F.3d 4 (1st Cir. 2005), this
court addressed the standard for assessing liability against a
municipality under 42 U.S.C. § 1983 based on a City's hiring of a
public employee.16 We stated that the plaintiff bears the burden
of showing that a constitutional violation caused the plaintiff's
harm and that the City is responsible for that violation. See id.
at 25-26. In this case, the first element is satisfied: the City
does not dispute that Ciavola used excessive force when he arrested
Crete.
To satisfy the second element -- that the City is
responsible for that violation -- the plaintiff must show that the
action at issue constitutes a policy or custom attributable to the
City. Id. at 26. This policy or custom must have caused the
depravation of the plaintiff's constitutional rights and the
municipality must have the requisite level of culpability:
deliberate indifference to the particular constitutional right of
16
In Young we did not need to reach the question of whether a
single hiring decision due to inadequate screening can ever lead to
liability against the City under section 1983. See Young, 404 F.3d
at 31. Similarly, in this case, it is unnecessary for us to reach
the issue of whether a single hiring decision can make the City
susceptible to section 1983 liability.
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the plaintiff. Id. To succeed under this "exceptionally
stringent" standard, Crete must show that Ciavola's use of
excessive force against him was a "plainly obvious consequence" of
hiring Ciavola, given the department's knowledge of Ciavola's
background.17 Id. at 30 (citing Brown, 520 U.S. at 412-13).
In this case, the City's hiring decision was itself
legal, and the City did not authorize Ciavola to use excessive
force. The process used to investigate the background of Ciavola
was reasonable: it revealed the past conduct which Crete asserts
links the hiring of Ciavola with his use of excessive force. The
department made its hiring decision with knowledge of Ciavola's
background and assurances from Ciavola's probation officer that
Ciavola would "make an excellent police officer" despite his
assault and battery conviction. But "[e]ven when an applicant's
background contains complaints of physical violence, including acts
of aggression and assault, this may still be insufficient to make
a City liable for inadequate screening of an officer who then uses
excessive force." Id. at 30-31. And such is the case here: Crete
simply cannot meet his heavy burden. There was insufficient
evidence on which a jury could base a finding that a "plainly
obvious consequence" of the City's decision to hire Ciavola was the
17
Crete attempts to paint this case as one involving a
complete failure to screen because the City Manager never inspected
the background materials of any police officer candidate, including
Ciavola. Crete's argument is frivolous, as our earlier recitation
of the facts shows.
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violation of Crete's constitutional rights. See id. at 31; Brown,
520 U.S. at 415. Summary judgment was proper.
III.
Accordingly, we affirm the grant of summary judgment as
to the section 1983 claim, vacate the judgment against the City on
the negligent hiring claim and remand to the district court to
enter judgment for the City. Costs are awarded to the City.
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