Lowinger v. Broderick ( 1995 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 94-2077

    LAZAR LOWINGER, ET AL.,

    Plaintiffs - Appellees,

    v.

    WILLIAM T. BRODERICK,

    Defendant - Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

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

    ____________________

    Before

    Selya and Boudin, Circuit Judges, ______________

    and Carter,* District Judge. ______________

    _____________________

    James F. Lamond, with whom Alan J. McDonald and McDonald and _______________ ________________ ____________
    Associates were on brief for appellant William T. Broderick. __________
    Thomas J. Chirokas for appellees Lazar Lowinger and Audrey ___________________
    Lowinger.



    ____________________

    March 22, 1995
    ____________________


    ____________________

    * Of the District of Maine, sitting by designation.












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

    and Audrey Lowinger, seek recovery under 42 United States Code

    Section 1983 and state tort law1 from Defendants, Sergeant

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

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

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

    Defendants' allegedly false arrest of Lazar Lowinger. Defendant

    Broderick, who was sued in his individual and official

    capacities, moved for summary judgment asserting his entitlement

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

    The district court concluded that the record contained genuine

    issues of material fact regarding whether Broderick was entitled

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

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

    by the parties, follow.



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

    On September 9, 1987, Defendant Broderick, a sergeant

    with the Boston Police Department, was assigned to a police

    district located in Brighton as a patrol supervisor. Shortly

    after midnight, Broderick responded to a complaint of a loud

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

    peace and possession of a false liquor purchase identification

    ____________________

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

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

    booked and detained.

    At approximately the same time as Quinn's arrest,

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

    at his home by an individual requesting that Lowinger undertake

    to represent Quinn. Lowinger contacted the district station and

    spoke to Broderick, who refused to provide any information

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

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

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

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

    and one of whom had contacted Lowinger to represent Quinn.

    Lowinger presented himself at the counter in the

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

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

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

    instructed the two men accompanying Lowinger to leave the station

    and expressly told Lowinger that he did not authorize the

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

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

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

    Broderick regarding the use of the recorder during which

    Broderick informed Lowinger that the recording of a conversation

    without the knowledge or authorization of the participants was a






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

    unsuccessful in convincing Broderick to permit him to see Quinn.

    At some point thereafter, Broderick saw the recorder in

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

    tape moving inside. It is disputed whether Broderick was

    speaking at the time the machine was recording. Broderick

    instructed the other officers to take Lowinger into custody for

    violation of Massachusetts state law against unauthorized

    interception of communications. In the criminal prosecution that

    followed, Lowinger successfully moved to suppress the small tape

    recorder after the state court concluded that, because there were

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

    merely dictating a memo to himself when he turned on the

    recorder.

    Lowinger and his wife, Audrey, commenced this civil

    action for Defendants' alleged infringement on the Lowingers'

    civil rights and for violations of state tort law. Broderick

    moved for summary judgment on the basis of qualified immunity and

    submitted an affidavit to support his position. Plaintiffs filed

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

    ____________________

    2 Broderick was making reference to a Massachusetts criminal
    statute which imposes penalties upon any person who: "willfully
    commits an interception [or] attempts to commit an interception
    . . . of any wire or oral communication." Mass. Gen. Laws. Ann.
    ch. 272, 99(C)(1). As provided in that section's definitions,
    "'interception' means to secretly hear [or] secretly record . . .
    the contents of any wire or oral communication through the use of
    any interception device by any person other than a person given
    prior authority by all parties to such communication." Id. ___
    99(B)(4).

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

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

    the unsuccessful criminal prosecution of Lowinger.3 When the

    summary judgment motion was decided in recorded proceedings

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

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

    genuine issue of material fact existed regarding whether

    Broderick was entitled to qualified immunity. This interlocutory

    appeal by Broderick followed.



    II. ANALYSIS II. ANALYSIS _____________

    A. Jurisdiction A. Jurisdiction ________________

    As a preliminary matter, Lowinger disputes whether this

    Court has proper jurisdiction over the appeal since the district

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

    which an appeal may follow.

    It is well-settled that a court of appeals has

    jurisdiction over an interlocutory appeal from a district court's

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

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

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

    entitling its possessor to avoid standing trial. Thus, the

    doctrine provides "immunity from suit rather than a mere defense __________________

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

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

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

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

    This Court, time and again, has heeded the Supreme

    Court's instructions in this area and exercised jurisdiction over

    such appeals, including appeals from district courts that had

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

    on several occasions, this Court has reversed the denial of

    summary judgment. See, e.g., Febus-Rodr guez v. Betancourt- ___ ____ _______________ ___________

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

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

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

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

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

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

    judgment, permitting the immediate appeal of such denials avoids

    subjecting officials unnecessarily to discovery and trial.

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

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

    district court's conclusions are subject to plenary review.

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



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

    The central question presented by this appeal is

    whether the district court properly concluded that the record

    demonstrated genuine issues of material fact regarding

    Broderick's entitlement to immunity and, therefore, that


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    Broderick was not entitled to summary judgment as a matter of

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

    substantiates his entitlement to qualified immunity and that the

    district court erred when it concluded that genuine issues of

    material fact were generated through the parties' submissions on

    the motion. Although Broderick has raised other issues in this

    appeal, our resolution of this primary matter eliminates our need

    to reach these other issues.4

    The inquiry for a district court's resolution on a

    motion for summary judgment brought by an official seeking

    qualified immunity is "whether a reasonable official could have

    believed his actions were lawful in light of clearly established

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

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

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

    any summary judgment determination, all facts and reasonable

    inferences are construed in favor of the nonmoving party, the

    analysis employed to determine whether an official is entitled to
    ____________________

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

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    summary judgment is quite generous. A "reasonable, although

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

    not subject a government official to personal liability."

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

    has observed that the "qualified immunity standard 'gives ample

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

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

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

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

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

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

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

    at 1116. Therefore, since even erroneous decisions by officials

    may be entitled to qualified immunity, the analysis employed to

    determine entitlement to qualified immunity warrants an entirely

    different approach from that employed to evaluate the merits of

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

    784, 787 (1st Cir. 1990).

    Although the district court here correctly observed at

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

    reasonable police officer could have believed he had probable

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

    subsequent remarks that its true focus was the merits of

    Plaintiffs' underlying case when it determined whether a genuine

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

    Without reaching the issue of whether the state court Findings


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    constituted a proper form of supporting documentation for

    consideration on a summary judgment motion,5 this Court

    concludes that the district court was in error when it relied

    upon certain conclusions of the state court to determine the

    existence of a genuine issue of material fact regarding

    Broderick's entitlement to summary judgment.

    The portion of Broderick's affidavit pertinent to this

    motion states:

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

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

    Broderick, standing alone, establishes a reasonable belief on his

    part that he was being secretly recorded without his permission

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

    Findings considered by the district court to generate a factual

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

    on the recorder to dictate a memo to himself regarding the

    ____________________

    5 See supra note 4. _____

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

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

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

    very few words indicating that the two young men with Lowinger

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

    These Findings, however, do nothing to refute the

    observations by Broderick in the above-quoted portion of his ____________

    affidavit. Instead, the Findings address the merits of

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

    of material fact germane to the summary judgment analysis for

    qualified immunity here. While subsequent investigation and

    adversarial fact-finding hearings may have established that, in __

    fact, Lowinger was not secretly taping his conversation with ____ ___

    Broderick, such a conclusion does not contradict the assertion by

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

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

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

    conversation does not negate what Broderick had previously

    reasonably concluded based upon all of the circumstances, but

    merely supports Lowinger's position before the Massachusetts
    ____________________

    7 Thus, this case does not present the scenario of the "rare
    case" described in Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir. ______ _______
    1991), in which a determination of qualified immunity as a matter
    of law, after assuming all facts in a plaintiff's favor, is
    "impossible" due to conflicting evidence as to the "underlying
    historical facts." Such facts could include "if what the
    policeman knew prior to the arrest is genuinely in dispute, and
    if a reasonable officer's perception of probable cause would
    differ depending on the correct version, that factual dispute
    must be resolved by a fact finder." Id. Here, there is no ___
    dispute about what Broderick knew at the time but, rather, the
    dispute is over whether his perception was accurate. Only the
    former is relevant to the qualified immunity analysis.

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    District Court that he was not guilty of intercepting

    communications.

    The district court attached great significance to its

    conclusion that a genuine dispute exists as to whether Broderick

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

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

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

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

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

    Court.8 More importantly, however, whether Broderick was

    speaking at the precise moment he noticed the recorder in _______

    operation is not determinative of whether he had the reasonable

    belief that Lowinger was taping their conversation. Plaintiffs

    did not produce any evidence to directly refute Broderick's

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

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

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

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

    that it was recording. That perception, which was unchallenged

    in the proceedings below, establishes a reasonable belief on

    Broderick's part that Lowinger was attempting to secretly tape

    their conversation without Broderick's authorization in violation

    of Massachusetts law.

    Lowinger also argues that the contents of the tape are
    ____________________

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

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

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

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

    current position regarding his perceptions and beliefs at the

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

    demonstrates that Broderick may have been mistaken in such ________

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

    irrelevant to the preliminary determination of entitlement to

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

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

    dispute regarding Broderick's reasonable beliefs. Accordingly,

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

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

    the basis of his qualified immunity from judgment.

    Reversed and remanded with directions to enter summary _______________________________________________________

    judgment for Defendant Broderick on the claim made under 42 _________________________________________________________________

    United States Code Section 1983 and to dismiss without prejudice _________________________________________________________________

    the claims based on state law. _____________________________







    ____________________

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

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