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USCA1 Opinion
November 10, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1688
EMMA RIVERA,
Plaintiff, Appellant,
v.
PAUL MURPHY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Jennifer Petersen, with whom Andrew Stockwell-Alpert, was on
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brief, for appellant.
William J. Walsh, Assistant Corporation Counsel, with whom Albert
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W. Wallis, Corporation Counsel, City of Boston, and Gerard A. Pugsley,
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Assistant Corporation Counsel, City of Boston, were on brief, for
appellee.
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BOWNES, Senior Circuit Judge. This appeal arises
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out of an action brought by Emma Rivera against Paul Murphy,
a Boston Police officer, for violations of 42 U.S.C. 1983,
Mass. Gen. L. ch. 12, 11I, and for state law tort claims,
including: assault and battery; false arrest; false
imprisonment; malicious prosecution; intentional infliction
of emotional distress; and, negligence. Rivera alleged she
suffered physical and emotional injuries when Murphy
subjected her to a warrantless arrest for possession of
cocaine in violation of Mass. Gen. L. ch. 94C, 34. Murphy
moved for summary judgment on the ground that he was entitled
to qualified immunity because he had probable cause to make
the arrest from which the alleged violations and torts arose.
Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs,
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475 U.S. 335 (1986); Harlow v. Fitzgerald, 457 U.S. 800
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(1982). The district court granted the motion for summary
judgment as to the 1983 claim and six of the seven pendent
state law claims.
Rivera appeals this ruling and has asked us to find
that Murphy was not entitled to qualified immunity because he
lacked probable cause to arrest her, and that, in any event,
the district court should have dismissed without prejudice,
rather than granted summary judgment on, the pendent state
law claims. We agree with Rivera. We reverse and remand the
case to the district court.
I
I
Standard of Review
Standard of Review
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Summary judgment is appropriate when "there is no
genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c); see, e.g., Prokey v. Watkins, 942 F.2d 67, 72
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(1st Cir. 1991). This court's review of a district court's
grant of summary judgment is plenary. Hoffman v. Reali,
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No. 91-1703, slip op. at 9 (1st Cir. August 27, 1992);
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.
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1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
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1990). On appeal, as below, we must "view the entire record
in the light most hospitable to the party opposing summary
judgment, indulging all reasonable inferences in that party's
favor." Griggs-Ryan, 904 F.2d at 115. In the absence of a
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dispute over the underlying material facts, a defendant's
entitlement to qualified immunity is a question of law and is
reserved for plenary review by this court. Hoffman, slip op.
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at 9 (citations omitted). We begin by setting out the facts
of this case in the light most favorable to Rivera.
II
II
Facts
Facts
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On the evening of October 25, 1988, Rivera was
double-parked in downtown Boston. A man known to her as
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Torres said "hi" as he walked past her on the sidewalk,
approximately ten feet from the car in which she was sitting.
Rivera responded in kind, at which point their conversation
terminated. Torres never came within ten feet of Rivera.
Moments later, an unmarked police car stopped behind Rivera's
vehicle. Paul Murphy, a plainclothes Boston police officer,
stopped Torres, searched him, and placed him under arrest.
Officer Murphy subsequently approached Rivera and asked that
she get out of the car. Rivera complied without objection or
resistance. Murphy then instructed Rivera to turn around.
Again, Rivera complied. She was handcuffed and placed under
arrest. In handcuffing Rivera, Officer Murphy tightened the
handcuffs to a degree that caused her pain. After a police
cruiser arrived at the scene, Rivera was taken to the police
station and placed in a holding cell.
On October 26, 1988, Rivera was arraigned in Boston
Municipal Court and was charged with possession of cocaine.
She was tried on March 7, 1989. At the close of the
Commonwealth's evidence, Rivera was found not guilty. Torres
was convicted for unlawful possession of cocaine at a
separate trial.
On April 1, 1991, Rivera filed a complaint in
Suffolk County Superior Court against both the City of Boston
and Paul Murphy, individually, and in his capacity as a
police officer of the City of Boston. The complaint included
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eight counts: (I) violations of 42 U.S.C. 1983; (II)
violations of Mass. Gen. L. ch. 12, 11I; (III) assault and
battery; (IV) false arrest; (V) false imprisonment; (VI)
malicious prosecution; (VII) intentional infliction of
emotional distress; and (VIII) negligence. Defendants
removed the case to the United States District Court for the
Eastern District of Massachusetts, pursuant to 42 U.S.C.
1441. The City of Boston filed a motion to dismiss the
complaint as to itself, which uncontested motion was allowed.
Pursuant to Fed. R. Civ. P. 56, the remaining
defendant, Officer Murphy, filed a motion for summary
judgment. Murphy attached an affidavit to the memorandum in
support of this motion, stating in pertinent part:
2. I have been a Boston Police Officer since
May 15, 1985;
3. I have received training in Drug
Investigations through the Boston Police
Academy and various on the job training;
4. I have received the following awards for
meritorious police work; the William J.
Taylor Award and the Boston Police
Department Medal of Honor;
5. I have a bachelor's degree in Marketing
from Boston College (Class of 1982);
6. On October 25, 1988 I responded to 680
Tremont Street at the direction of my
superiors Lieutenant Cellucci and
Sergeant Famolare, as there was a report
of drug trafficking taking place at that
location;
7. I observed the Plaintiff Emma Rivera
involved in what I believed to be a drug
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transaction based on my observations,
training and experience;
8. I arrested Emma Rivera, Roberto Cruz and
Jesus Torres on probable cause and
without a warrant for possession of a
Class "B" substance to wit Cocaine;
9. I formed my probable cause on a
reasonable good faith belief under the
attendant circumstances.
On May 5, 1992, the district court allowed Murphy's
motion for summary judgment with respect to counts I-VII
after finding that Murphy was entitled to qualified immunity.
The court dismissed count VIII for lack of pendent
jurisdiction. Rivera filed a timely appeal.
There is no genuine dispute over the material facts
of this case. The two affidavits that were before the court
below, and which are before this court on appeal, are not
inconsistent. Rivera contends that Torres never came within
ten feet of her on the night when she was arrested. Officer
Murphy contends that he saw Rivera engaged in what he thought
was a drug transaction based on his "observations, training
and experience." Officer Murphy's affidavit does not deny
any of the factual allegations of Rivera. He says nothing
whatsoever about what facts led him to believe that Rivera
was involved in a drug transaction. As far as his affidavit
is concerned, he arrested Rivera simply because, for a few
seconds, she was at a distance of ten feet from Torres.
Officer Murphy's statement is not at variance with that of
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Rivera. Rivera does not, because she cannot, rebut the
subjective and conclusory assertion of Murphy.
At issue on appeal is the legal conclusion asserted
by Officer Murphy in his affidavit and relied upon by the
court below. That is, taking the facts as asserted in
Rivera's affidavit as true, summary judgment should have been
granted in favor of Officer Murphy only if a reasonable
police officer could have believed he had probable cause to
arrest Rivera which would have cloaked him with qualified
immunity. We must therefore determine whether Officer
Murphy's stated cause for arresting Rivera entitles him to
the protection of qualified immunity.
III
III
Qualified Immunity
Qualified Immunity
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The Supreme Court announced the general rule of
qualified immunity in Harlow, when it stated that "government
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officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." 457 U.S. at 818. See also Hunter v. Bryant,
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112 S. Ct. 534, 536 (1991) (per curiam); Anderson, 483 U.S.
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at 641. Officer Murphy is entitled to immunity if a
reasonable officer could have believed that probable cause
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existed to arrest Rivera. Hunter, 112 S. Ct. at 537. This
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is not a stringent test. Indeed, "[t]he qualified immunity
standard ``gives ample room for mistaken judgments' by
protecting ``all but the plainly incompetent or those who
knowingly violate the law.'" Hunter, 112 S. Ct. at 537
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(quoting Malley, 475 U.S. at 343, 341).1 The officers are
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therefore entitled to qualified immunity "so long as the
presence of probable cause is at least arguable." Ricci v.
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Urso, No. 91-2067, slip op. at 5 (1st Cir. August 31, 1992);
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Prokey, 942 F.2d 67, 72 (1st Cir. 1991); Floyd v. Farrell,
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765 F.2d 1, 5 (1st Cir. 1985).
Under the Fourth Amendment,2 the right to be free
from unreasonable seizures of the person gives rise to a
requirement that arrests be supported by probable cause.
See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964). As the
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Court explained in Wong Sun v. United States, 371 U.S. 471
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(1963):
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1 The law provides immunity for such reasonable errors
because "officials should not err always on the side of
caution" out of a fear of civil suit. Davis v. Scherer, 468
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U.S. 183, 196 (1984).
2 The Fourth Amendment provides that:
[t]he right of the people to be secure in their
persons, houses, papers, and effects, 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 place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV.
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It is basic that an arrest with or without a
warrant must stand upon firmer ground than mere
suspicion . . . , though the arresting officer need
not have in hand evidence which would suffice to
convict. The quantum of information which
constitutes probable cause evidence which would
"warrant a man of reasonable caution in the belief"
that a felony has been committed . . . must be
measured by the facts of the particular case.
Id. at 479 (citations omitted). The probable cause test is
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an objective one, for, as the Supreme Court noted in Beck,
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"[i]f subjective good faith alone were the test, the
protections of the Fourth Amendment would evaporate, and the
people would be ``secure in their persons, houses, papers and
effects,' only in the discretion of the police." Beck, 379
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U.S. at 97. Therefore, we have stated that probable cause
exists when "``the facts and circumstances within [the police
officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent
[person] in believing that the [defendant] had committed or
was committing an offense.'" United States v. Figueroa, 818
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F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck, 379 U.S. at 91
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(1964)). Finally, in reviewing any determination regarding
the sufficiency of cause to effect an arrest we must
"consider the totality of circumstances to evaluate the
government's demonstration of sufficient ``[p]robability . . .
of criminal activity.'" United States v. Maguire, 918 F.2d
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254, 258 (1st Cir. 1990) (quoting Illinois v. Gates, 462 U.S.
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213, 235 (1983)). Officer Murphy's affidavit sets
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forth no facts to support his legal conclusion that he had
probable cause to effect the arrest of Rivera. Stripped to
its bare essentials, Murphy's affidavit states that he saw
what he saw, so he did what he did. Nowhere does Murphy
state precisely what it was that he saw. His observations
were recorded as just that: "observations". The affidavit
simply makes the bald assertion that based on his
"observations, training and experience," he had probable
cause to make the arrest.
In order to have probable cause for a Terry stop (a
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minimal intrusion relative to arrest), a police officer must
have "specific and articulable facts which, taken together
with rational inferences from those facts," could create a
reasonable suspicion sufficient to justify a brief detention
of an individual. Terry v. Ohio, 392 U.S. 1, 21, 27 (1968).
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Here, Officer Murphy recounts no such "specific and
articulable facts." If he could not have met the standard
for such a brief investigatory detention of Rivera, he
certainly does not meet the requirements for a full-blown
arrest. Absent any specific and articulable observations, it
cannot be said that it was even arguable as to whether Murphy
had probable cause to make a warrantless arrest.
The experience and training of a police officer
are, of course, factors to be considered in the determination
of probable cause, but, the "relevance [of such experience
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and training] in a particular case must be sufficiently
conveyed so that . . . it ``can be understood by the average
reasonably prudent person.'" Wayne R. LaFave, 1 Search and
Seizure 575 (2d ed. 1987) (quoting United States v. Chadwick,
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393 F. Supp. 763, 769 (D. Mass. 1975), aff'd, 532 F.2d 773
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(1st Cir. 1976), aff'd, 433 U.S. 1 (1977)). See, e.g., Brown
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v. Texas, 443 U.S. 47, 51-52 & n. 2 (1979); United States v.
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Brignoni-Ponce, 422 U.S. 873, 884-86 (1975); see also
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Maguire, 918 F.2d at 258. Were we to affirm the district
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court's ruling below, we would give license to police
officers to make unwarranted arrests, and retain qualified
immunity from civil suits so long as they asserted that they
thought they had probable cause to make the arrest based on
their "observations, training and experience." Creating such
a talisman would effectively transform the police officer
into a judge, and the court into a rubber stamp.
Officer Murphy should not have been granted
qualified immunity by the court below because there are no
facts alleged in Murphy's affidavit showing, or tending to
show, that he had probable cause to arrest Rivera.
IV
IV
Pendent State Law Claims
Pendent State Law Claims
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Upon granting summary judgment in favor of Officer
Murphy on the basis of qualified immunity, the district court
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granted summary judgment on the state law claims asserted in
Counts II-VII of Rivera's complaint, and dismissed Count VIII
(negligence). Because we hold that Murphy was not entitled
to qualified immunity and that summary judgment on Count I
should not, therefore, have been granted in his favor, we
also hold that the court erred in granting summary judgment
on Rivera's pendent state law claims.
Even had the court been correct in its grant of
summary judgment on the 1983 claim, it would not have been
proper to grant summary judgment on the pendent state law
claims. Rather, in this case, the court should have
dismissed the pendent claims over which the court no longer
had jurisdiction, thereby allowing the plaintiff to pursue
the action in state court where it was first brought. As the
Supreme Court stated in Carnegie-Mellon Univ. v. Cohill, 484
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U.S. 343 (1987):
Under Gibbs, a federal court should consider and
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weigh in each case, and at every stage of the
litigation, the values of judicial economy,
convenience, fairness, and comity in order to
decide whether to exercise jurisdiction over a case
brought in that court involving pendent state-law
claims. When the balance of these factors
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indicates that a case properly belongs in state
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court, as when the federal-law claims have dropped
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out of the lawsuit in its early stages and only
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state-law claims remain, the federal court should
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decline the exercise of jurisdiction by dismissing
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the case without prejudice.
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Id. at 350 (emphasis supplied) (footnote omitted). See also
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Cullen v. Mattaliano, 690 F. Supp. 93 (D. Mass. 1988) ("it is
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the settled rule in this Circuit that in a non-diversity
case, where pendent state claims are joined with a federal
cause of action and that federal cause of action is the
subject of a successful summary judgment motion, the pendent
state claims should be dismissed."). Id. at 99.
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The court had federal question jurisdiction to hear
the 1983 claim and therefore had jurisdiction to hear
pendent state law claims which "derive[d] from a common
nucleus of operative fact" and were "such that [a plaintiff]
would ordinarily be expected to try them all in one judicial
proceeding." United Mine Workers of America v. Gibbs,
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383 U.S. 715, 725 (1966); see also Carnegie-Mellon Univ. v.
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Cohill, 484 U.S. 343 (1988).
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V
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The judgment of the district court is reversed and
the case is remanded.
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Document Info
Docket Number： 92-1688
Filed Date： 11/10/1992
Precedential Status： Precedential
Modified Date： 9/21/2015