Dwan v. City of Boston , 329 F.3d 275 ( 2003 )

United States Court of Appeals
For the First Circuit
No. 02-1493
ROBERT A. DWAN; CATHERINE M. DWAN; ALLYSON M. DWAN,
BY HER PARENTS AND NATURAL GUARDIANS, ROBERT A. DWAN
AND CATHERINE M. DWAN; BRITTANY C.M. DWAN, BY HER PARENTS
AND NATURAL GUARDIANS, ROBERT A. DWAN AND CATHERINE M. DWAN;
MADYSON E. DWAN, BY HER PARENTS AND NATURAL GUARDIANS,
ROBERT A. DWAN AND CATHERINE M. DWAN; ROBERT A. DWAN, JR., BY HIS
PARENTS AND NATURAL GUARDIANS, ROBERT A. DWAN AND CATHERINE M.
DWAN; CHRISTOPHER J. DWAN, BY HIS PARENTS AND
NATURAL GUARDIANS, ROBERT A. DWAN AND CATHERINE M. DWAN,
Plaintiffs, Appellees,
v.
CITY OF BOSTON,
Defendant.
__________
PAUL F. EVANS, INDIVIDUALLY AND AS THE POLICE COMMISSIONER
FOR THE BOSTON POLICE DEPARTMENT; THOMAS DOWD, INDIVIDUALLY
AND AS AN EMPLOYEE OF THE CITY OF BOSTON POLICE DEPARTMENT,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Farris,* Senior Circuit Judge,
and Torruella, Circuit Judge.
*
Of the Ninth Circuit, sitting by designation.
Steven P. Perlmutter with whom Michael D. Lurie, Elizabeth C.
Sackett and Robinson & Cole LLP were on brief for appellants.
Stephen J. Delamere with whom Bruce A. Bierhans and Law Offices
of Bruce A. Bierhans, LLC were on brief for appellees.
May 27, 2003
BOUDIN, Chief Judge. Robert Dwan sued the City of Boston
and two superior officers in the Boston Police Department
("Department"), claiming that the defendants violated his Fifth
Amendment rights by putting him on paid administrative leave after
he refused to testify before a grand jury concerning the vicious
beating of another police officer. The district court rejected the
officers' claim of qualified immunity, and the officers have
appealed. We conclude that Dwan's superiors do have qualified
immunity.
This case is an offshoot of the 1995 assault of Boston
police officer Michael Cox, described in detail in United States v.
Conley, 249 F.3d 38, 40-43 (1st Cir. 2001), and United States v.
Conley, 186 F.3d 7, 11-15 (1st Cir. 1999), cert. denied 529 U.S.
1017 (2000). As to the events involving Dwan, we recount the facts
in the light most favorable to Dwan as the party opposing summary
judgment. N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 36
(1st Cir. 2001).
Robert Dwan joined the Boston Police Department in 1989
as an officer; he has been a sergeant since 1997. On the evening
of January 25, 1995, Dwan was on patrol with his partner Kenneth
Conley. A broadcast over the police radio reported a robbery at a
Boston nightclub and, mistakenly, that a police officer had been
shot. Several police cars pursued the suspects. The chase ended
at a cul de sac where the suspects ran from their car and were
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chased on foot. One of the first officers on the scene was Michael
Cox, an African-American undercover officer dressed in plainclothes.
Dwan and Conley arrived in the fifth car on the scene. Cox pursued
one of the suspects to a fence at one end of the cul de sac. The
suspect climbed over the fence, but as Cox started to climb after
him, he was pulled down by unidentified police officers and beaten
severely.
The Department immediately launched an investigation into
the Cox beating. Dwan initially cooperated, filing a report in
March 1995, describing his actions on the night in question and
claiming that he did not see which officers assaulted Michael Cox
because he (Dwan) was at the other end of the cul de sac assisting
in the arrest of another suspect. Officer Joseph Horton
corroborated Dwan's story, stating that he (Horton) assisted in the
arrest and saw Dwan assisting as well. An Internal Affairs officer
expressed himself satisfied.
Nevertheless, the Department continued to question Dwan.
This was partly because no officer ever admitted to beating Cox or
seeing anyone else do so, but also because Dwan's version of events
was at odds with other evidence. A security guard who was in
Michael Cox's car stated that he was present when the second suspect
was arrested and that no one fitting Dwan's description assisted in
the arrest. In addition, Officer Richard Walker testified that he
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saw two officers matching Conley and Dwan's descriptions not far
from where Cox was beaten.
In May 1997, Dwan was called before a federal grand jury
investigating the Cox beating as a potential civil rights violation.
Dwan was not given immunity in this proceeding and refused to
testify, invoking his Fifth Amendment right against self-
incrimination. He was again subpoenaed to testify before the grand
jury in October 1998. His attorney told the prosecutor that Dwan
would again invoke the Fifth Amendment if he was not given immunity,
and the prosecutor withdrew the subpoena.
Eight days later, on October 28, 1998, Dwan was placed on
administrative leave with pay. Police Commissioner Paul Evans said
in a letter that the decision had been made for "the efficiency of
the Department" and should not be considered disciplinary action.
In January 1999, the Department charged Dwan with violating
regulations in numerous respects (e.g., filing a false report) in
regard to the Cox beating. The Department scheduled four hearings
over the next year regarding these charges, but cancelled all of
them, and the complaint was ultimately abandoned.
Dwan remained on administrative leave for eighteen months
(October 1998-March 2000). While on leave, he was paid his regular
salary but could not work overtime or special assignments; Dwan
claims that the forgone income totaled between 50 and 100 percent
of his base salary. He was reinstated in March 2000 after passing
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the second of two polygraph examinations indicating that he did not
participate in the Cox beating and did not see who did participate.
Since his reinstatement, Dwan alleges that the Department has denied
his requests to work special assignments and to be transferred to
another district.
On March 12, 2001, Dwan brought suit for damages in
federal court against the Department, Police Commissioner Evans, and
Deputy Superintendent Thomas Dowd (who oversaw the Cox
investigation).1 In pertinent part, Dwan's complaint alleged that
the defendants violated 42 U.S.C. § 1985 (2000), his First, Fifth,
and Fourteenth Amendment rights, which are subject to redress under
42 U.S.C. § 1983 (2000), and the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, §11I (2000). His wife and children also
sued the defendants for loss of consortium. Mass. Gen. Laws ch.
258, § 2 (2000).
The defendants moved for summary judgment, which the
district court granted on all counts except Dwan's Fifth Amendment
claim and the claim under the Massachusetts Civil Rights Act, which
depends on the Fifth Amendment claim. As to this claim, the
district court held that taking all factual inferences in favor of
Dwan, "a reasonable jury could conclude that his right against self-
1
The City of Boston was substituted for the Department because
the Department is not a suable entity. The city could under
certain circumstances be liable for a violation of Dwan's rights by
Evans and Dowd. Monell v. Dep't of Social Servs., 436 U.S. 658,
694 (1978).
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incrimination was wrongfully burdened by the defendants' actions"
which could constitute "a scheme of harassment designed to chill his
Fifth Amendment rights and to coerce Dwan into incriminating
himself." The court also held that Dwan's Fifth Amendment rights
were "clearly established" so qualified immunity was unavailable.
The individual defendants have appealed from the order
denying qualified immunity. An interlocutory appeal lies from such
a denial, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), at least
"to the extent that the qualified immunity defense turns upon a
'purely legal' question." Fletcher v. Town of Clinton, 196 F.3d 41,
45 (1st Cir. 1999). In such an instance, our review is, of course,
de novo. Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st
Cir. 2002). If qualified immunity is denied because the district
court finds a disputed issue of fact reserved for trial,
interlocutory review as to that ruling is not available. Diaz v.
Martinez, 112 F.3d 1, 3 (1st Cir. 1997).
Under well-established law, the individual defendants are
entitled to qualified immunity for official action unless (1) their
conduct violated Dwan's constitutional rights and, in addition, (2)
the law to this effect was "clearly established" under then-existing
law so that a reasonable police officer would have known that his
behavior was unlawful. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Saucier contemplates, although with possible exceptions not
pertinent here, see Dirrane v. Brookline Police Dep't, 315 F.3d 65,
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69-70 (1st Cir. 2002), that the reviewing court should begin with
the former question.
The inquiry is simplified, but only partly, by the
defendants' concession (for purposes of this appeal) that Dwan was
placed on administrative leave "because" he pleaded or threatened
to plead the Fifth Amendment before the federal grand jury. This
concession confirms what would otherwise have been a plausible but
not inevitable inference from the timing of events: that the
administrative leave decision was prompted at least in part by
Dwan's action in taking the Fifth Amendment and not solely by an
unrelated determination that he should be investigated internally
for misconduct.
In a set of decisions in the late 1960s and in the 1970s,
the Supreme Court held that public employees could not be coerced
into waiving their Fifth Amendment rights.2 Most of the cases
involved public employees who were fired or otherwise penalized for
pleading the Fifth Amendment after being advised that this action
would automatically result in such penalty. Although the Supreme
Court has not recently revisited the Garrity line of cases, a number
of the circuits including this one have focused on the "coercion"
2
Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Uniformed
Sanitation Men Ass'n, Inc. v. Comm'r of Sanitation, 392 U.S. 280(1968); Gardner v. Broderick, 392 U.S. 273 (1968); Garrity v. New
Jersey, 385 U.S. 493 (1967).
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issue emphasized by the Court in those cases, making it a claim
dependent on such a showing.3
Further, this circuit has held that coercion is lacking
so long as the employee was never threatened or forewarned of any
sanction for refusing to testify, even though the employee suffers
adverse action after-the-fact as a result of refusing to cooperate.
See Singer, 49 F.3d at 847 (1st Cir. 1995); Indorato, 628 F.2d at
715-16. Here, no one told Dwan that if he pled the Fifth Amendment
before the grand jury, he would be placed on administrative leave.
Nor does he allege any regulation or settled practice to that
effect. United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir.
1988).
There are dicta--although perhaps no holdings--in a few
circuits that assume that official retaliation against someone for
pleading the Fifth Amendment could be a violation even without
coercion to compel a waiver. See Nat'l Treasury Employees Union v.
U.S. Dep't of Treasury, 25 F.3d 237, 241-42 (5th Cir. 1994). Rights
are often safeguarded in this fashion, Dirrane, 315 F.3d at 69
(First Amendment); Gu v. Boston Police Dep't, 312 F.3d 6, 13-14 (1st
Cir. 2002) (Title VII), although much depends upon how the "right"
3
See, e.g., Singer v. Maine, 49 F.3d 837, 847 (1st Cir. 1995);
United States v. Indorato, 628 F.2d 711 (1st Cir.), cert. denied,
449 U.S. 1016 (1980); Chan v. Wodnicki, 123 F.3d 1005, 1009-10 (7th
Cir. 1997), cert. denied, 522 U.S. 1117 (1998); Benjamin v. City of
Montgomery, 785 F.2d 959, 961-62 (11th Cir.), cert. denied, 479
U.S. 984 (1986).
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is defined, since rights do not come in pre-defined shapes and
sizes.
How the Supreme Court would react to such a case--where
there are consequences but no coercion--is uncertain. Fifth
Amendment law has outgrown its historical roots, Amar & Lettow,
Fifth Amendment First Principles: The Self-Incrimination Clause, 93
Mich. L. Rev. 857 (1995), and the Court has not been quite so
hospitable recently to expanding rights. But we will assume
arguendo that in some circumstances a Fifth Amendment claim might
be made out based solely on after-the-fact consequences of taking
the Fifth Amendment.
Yet it cannot sensibly be the law that administrative
measures, although taken in part "because" an employee pled the
Fifth Amendment, are automatically impermissible. Under the case
law, a negative inference may be drawn by a public employer--and
adverse action taken--"because of" an employee's refusal to answer
questions about job-related misconduct, so long as the inference is
plausible and (perhaps) other information also supports the adverse
action. See Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976).
Compare Lefkowitz, 431 U.S. at 808 n.5. Circuit case law is in
accord. See United States v. Stein, 233 F.3d 6, 14-17 (1st Cir.
2000), cert. denied 532 U.S. 943 (2001).
Like all "abstract" rights, Garrity has its limitations.
Suppose large sums are missing from the cash drawer in the state
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treasury but the cashier declines to discuss the matter with
investigators or a grand jury; surely it would not be a civil rights
violation to put the cashier on paid administrative leave pending
investigation merely because the cashier would forego overtime pay.
Cf. Chan, 123 F.3d at 1009-10; Fraternal Order of Police v.
Philadelphia, 859 F.2d 276, 282-83 (3rd Cir. 1988). We are
concerned (as usual) with reasonableness, context, degree and fit.
See, e.g., Dirrane, 315 F.3d at 70-71.
An objective standard serves best in this context. The
closest analogy is to the objective standard of probable cause or
reasonable suspicion used under the Fourth Amendment. E.g., Whren
v. United States, 517 U.S. 806 (1996). Precedent aside, there are
practical reasons why, in cases like this one, the test should be
objective. Once we know or assume arguendo that the refusal to
testify played some role in the Department's decision--absent that
there would be no causation--efforts to disentangle the threads
further are almost hopeless. Cf. Dirrane, 315 F.3d at 69; Barry
Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 232 (1st Cir.
1983).
Given the objective circumstances of this case, we see
nothing unreasonable about the actions taken by the defendants. It
is beyond dispute in this case that unidentified policemen on the
scene badly beat a black undercover police officer, mistakenly
believing him to have shot another policeman, and it is almost
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certain that some of the other officers present knew who had done
it, denied having knowledge, and supported each other's stories.
The individual defendants, to their credit, were trying to penetrate
this familiar wall of silence and bring the wrongdoers to justice.
Dwan may or may not have had such knowledge. But what the
defendants knew was that he had told a story as to why he did not
see what happened, admittedly supported by one of Dwan's fellow
officers but contradicted in substance by two others (who had no
obvious motive to lie), and Dwan then declined to testify about the
matter before a grand jury without immunity. On this basis, the
defendants were perfectly entitled to begin an investigation into
whether Dwan's original claims constituted false reporting and other
violations of departmental regulations.
Nor was there anything unreasonable in placing him on
administrative leave with pay pending this investigation even though
this meant he was not eligible for extra duty which would have meant
more pay. Administrative leave, for one reasonably suspected of
serious misconduct, is a routine measure--here mitigated by
continued pay. That Dwan suffered some disadvantage--as does any
innocent citizen who is lawfully but mistakenly arrested--does not
make it a constitutional violation.
Dwan offers several further arguments in support of his
charge of a Fifth Amendment violation. One such claim, that the
defendants knew or should have known that he was innocent of
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wrongdoing, rests solely on the fact that one colleague supported
his story. But two other officers contradicted Dwan and he had
declined to testify before the grand jury. The objective facts show
that the defendants had a reasonable basis to be suspicious of
Dwan's claim, for beginning an investigation, and for side-lining
him for a period of investigation.
Dwan also argues that the defendants' purpose in placing
him on administrative leave was to coerce him thereafter to abandon
his Fifth Amendment rights. There is no evidence of this--and
Deputy Superintendent Dowd denied it in his deposition--but to avoid
a possible disputed issue of fact, see Diaz, 112 F.3d at 3, we will
assume arguendo that the defendants would have been pleased if,
after being placed on administrative leave, Dwan had then cooperated
fully with the Department and the grand jury and was able to
identify those who had beaten Cox.
Yet we have just held that the defendants had an
objectively reasonable basis for placing Dwan on leave without pay
pending investigation, even though this stemmed in part from his
refusal to testify; and we have likewise concluded that the limited
burden on his Fifth Amendment rights--if it can be regarded as
touching upon those rights--was permissible. This being so, it
hardly matters whether the defendants hoped that Dwan might in due
course decide to cooperate--whether to avoid the investigation,
regain active status or for any other reason.
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Of course we can imagine a case in which a public employer
had an unsuspicious reason for placing an employee on administrative
leave pending an investigation, but later facts revealed that the
employer was trying to coerce the employee into waiving his Fifth
Amendment rights. The clearest example would be a situation in
which the employee was told that he would be restored to active duty
only if he waived his rights. Alternatively, the facts could be so
egregious that coercion could be reasonably inferred. Dwan,
however, falls far short of such a showing.
About the only event furnishing any basis for suspicion
is the scheduling and cancellation of Dwan's hearings; but, given
the general lack of cooperation from those on the scene at the Cox
beating, it is unsurprising that the Department had difficulty
establishing definitive proof of a violation. Dwan does not allege
that anyone so much as hinted that he would be restored to duty if,
but only if, he waived the privilege. And, in the end, it was only
the second polygraph test (both tests may have been administered
under the auspices of Dwan's counsel) that persuaded the Department
to abandon its investigation of Dwan.
Dwan finally alleges that the Department--although having
restored him to active duty--is now refusing to transfer him to
another division or to let him work special assignments. The
district court did not advert to this claim and the record is thin.
So far as we can tell from a few hints, the Department may be
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refusing overtime and transfers to a group of officers present at
the Cox beating of whom it remains suspicious. In other words, they
are on duty with work and pay but getting no Departmental favors or
extra details.
This situation presents no obvious Fifth Amendment claim.
Dwan's testimony is not being sought (the Cox beating is eight years
old) and if Dwan's prior refusals to testify are one of the reasons
for continuing suspicion of him, we have already noted that negative
inferences--outside of criminal prosecutions--are not automatically
forbidden under the Fifth Amendment. Whether under civil service
regulations or police union contracts he can be so restricted based
merely on suspicion is not an issue before us.
Because the individual defendants did not violate Dwan's
Fifth Amendment rights, the first prong of the Saucier inquiry is
decisive in their favor. And, as to the second prong, a violation
of the Fifth Amendment in these circumstances is not "clearly
established" or readily apparent. Whether a Fifth Amendment right
exists in the "abstract"--as it obviously does--is not the question.
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Thus, there is
qualified immunity here even if we are wrong in finding that Dwan's
constitutional rights were not violated.
Dwan finally claims injury under the Massachusetts Civil
Rights Act, Mass. Gen. Laws ch. 12, § 11I (2000), which prohibits
interference or attempted interference with the exercise of rights
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under federal or state law. This claim is dependent on Dwan's Fifth
Amendment claim (because the state law protects people from
interference with the exercise of their federal rights, see Sena v.
Massachusetts, 629 N.E.2d 250, 262 (Mass. 1994)), and therefore this
claim fails as well--a loose end that we can resolve on this appeal.
See Suboh, 298 F.3d at 97.
The judgment of the district court is vacated and the
matter remanded for proceedings consistent with this decision.
It is so ordered.
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