Abraham v. Nagle ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1949
ABIODUN ABRAHAM and HENRY AJAO,
Plaintiffs, Appellees,
v.
JOSEPH NAGLE,
Defendant, Appellant.
No. 96-2008
ABIODUN ABRAHAM and HENRY AJAO,
Plaintiffs, Appellants,
v.
JOSEPH NAGLE, ET AL.,
Defendants, Appellees.
PERRY ROY, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Susan M. Weise, Chief of Litigation, City of Boston Law
Department, with whom Merita A. Hopkins, Corporation Counsel, was on
brief for defendants.
George C. Deptula, with whom George C. Deptula, P.C. was on
consolidated brief for plaintiffs.
June 9, 1997
BOUDIN, Circuit Judge. Abiodun Abraham and Henry Ajao
sued several police officers and the City of Boston for false
arrest and for other alleged wrongs. During trial, the
district judge directed a verdict in favor of Ajao on his
false arrest claim against the defendant officer Joseph
Nagle; the jury found in favor of the defendants on all other
claims. Before us are cross-appeals by the plaintiffs and by
Nagle.
Our main concern is with the directed verdict and, for
that purpose alone, we set forth the evidence in the light
most favorable to Nagle. Fashion House, Inc. v. K mart
Corp., 892 F.2d 1076, 1088 (1st Cir. 1989). On August 18,
1990, at about 11 p.m., the plaintiffs, both black immigrants
from Nigeria, arrived with three white women at the Venus de
Milo nightclub in Boston. After waiting in line for several
minutes, the group reached the club entrance. The three
women were admitted, but the plaintiffs were not.
The bouncer told Abraham that he could not enter the
club because he was wearing jeans and because Abraham and
Ajao were "a little intoxicated." The plaintiffs said that
other people wearing jeans were being admitted and that the
real reason for excluding them was their race. When Abraham
continued to protest, a club employee summoned Nagle, a
Boston police officer who was "on detail" at another
establishment down the block.
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Nagle talked with the plaintiffs for 15 to 20 minutes,
telling them that the club was not going to admit them and
that they should leave; he says that the plaintiffs never
told him of the alleged discrimination. During the
discussion, Abraham became increasingly agitated, continued
to protest loudly, and at one point hit or pushed Nagle in
the chest. Nagle then arrested Abraham for assault and
battery on a police officer.
Nagle sought to handcuff Abraham but the latter
struggled free. Nagle radioed for help and was soon joined
by officer Thomas Boyle. Together, Nagle and Boyle
handcuffed Abraham and tried to bring him to Boyle's cruiser,
which was double-parked in the street. Abraham resisted by
going limp. As Nagle and Boyle sought to move Abraham to the
car, Ajao circled the officers and yelled, "why are you doing
this to my friend," "this isn't South Africa, you're white
racist cops."
According to Boyle, Ajao was "trying to prevent us from
getting to the police car." At one point Boyle said that he
"had to actually push [Ajao] out of my way" as the officers
wrestled with Abraham. Several times the officers told Ajao
to "get away." Eventually, with Ajao still present, the
officers pushed Abraham into the back seat of the car; he
then prevented the door from closing by kicking at it, but
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the officers forced it closed. By this time a crowd of 20 or
so had gathered to watch.
In the meantime, as Abraham continued to yell from the
cruiser, Ajao circled it and came up behind the left rear
quarter of the car. Ajao was told: "Police, leave, get away
from the cruiser"; Nagle later testified that he had feared
that Ajao might try to open the car door and release Abraham.
Ajao failed to move. Nagle then arrested Ajao, who in turn
struggled with Nagle, Boyle and a third officer, once kicking
Nagle in the mid-section, before being restrained.
In due course, Abraham and Ajao were both charged with
assault and battery and disorderly conduct. Mass. Gen. Laws
ch. 265, 13D; id. ch. 272, 53. They were tried in state
court in November 1990 and acquitted. In February 1993, they
in turn brought suit in state court against Nagle and other
police officers, and the city, charging the defendants with
false arrest under 42 U.S.C. 1983 and state law and with
various other wrongs.1 The defendants removed the action to
federal court and, following discovery, trial began in March
1995.
After all of the evidence was taken, the district court
granted Ajao's motion for a directed verdict in his favor
1The other claims, some of which were dropped prior to
or during trial, charged the defendants with false
imprisonment, racial discrimination, violation of free speech
rights, assault and battery, and use of excessive force.
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against Nagle, see Fed. R. Civ. P. 50(a); in an oral ruling,
the trial judge declared that Nagle was liable under both
federal and state law for falsely arresting Ajao in violation
of the latter's First and Fourth Amendment rights. The
court's primary rationale, as we read the transcript, was
that (in the district judge's view) Ajao's conduct prior to
his arrest did not "rise to the level of disorderly conduct .
. . ." The balance of the case was submitted to the jury.
By responses to special interrogatories, the jury fixed
Ajao's damages at $8,500 to vindicate his "rights against
false arrest," but made no separate award for violation of
free speech rights. On all of the plaintiffs' remaining
claims, the jury found against the plaintiffs and in favor of
the defendants. Thereafter, the district court awarded Ajao
attorney's fees of $24,858.50. Nagle now appeals from the
directed verdict against him. The plaintiffs also appeal,
urging that they are entitled to a new trial on their
unsuccessful claims, to an injunction, and to increased
attorney's fees. We begin with Nagle's appeal.
On review of a directed verdict, we take the evidence
most favorably to the losing party and ask de novo whether a
reasonable jury had inevitably to decide in favor of the
victor. Smith v. F.W. Morse & Co., 76 F.3d 413, 425 (1st
Cir. 1996). Here, putting aside some loose ends, the central
question is whether Nagle at the time of the arrest had
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probable cause to believe that Ajao had committed the offense
of disorderly conduct. If so, this largely defeats the false
arrest claim under both federal and state law. Logue v.
Dore, 103 F.3d 1040, 1044 (1st Cir. 1997); see Commonwealth
v. Grise, 496 N.E.2d 162, 163 (Mass. 1986).
Of course, it would be much easier to conclude that
Nagle, on his own version of events, had probable cause to
charge Ajao with assault and battery: Nagle said that Ajao
kicked him. But the kick occurred after Ajao's arrest; prior
to the arrest, the only pertinent charge was disorderly
conduct. We reserve for another day various issues that
would arise if the original arrest were unjustified but
resistance to it provided grounds for a valid charge.
Compare Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d
Cir. 1995), with United States v. Dawdy, 46 F.3d 1427, 1430-
31 (8th Cir.), cert. denied, 116 S. Ct. 195 (1995).
In defining disorderly conduct, Mass. Gen. Laws ch. 272,
53 provides for the punishment, inter alia, of "idle and
disorderly persons." In 1967, the Supreme Judicial Court
rejected a challenge that this provision was
unconstitutionally vague by interpreting it to incorporate
the Model Penal Code's definition of disorderly conduct.
Alegata v. Commonwealth, 231 N.E.2d 201, 211 (Mass. 1967).
That definition states:
A person is guilty of disorderly conduct if, with
purpose to cause public inconvenience, annoyance or
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alarm, or recklessly creating a risk thereof, he:
(a) engages in fighting or threatening, or in
violent or tumultuous behavior; or (b) makes
unreasonable noise or offensively coarse utterance,
gesture or display, or addresses abusive language
to any person present, or (c) creates a hazardous
or physically offensive condition by any act which
serves no legitimate purpose of the actor.
Id. (quoting ALI, Model Penal Code 250.2 (Proposed Official
Draft 1962)).
Several years later, the Supreme Judicial Court struck
down subsection (b) of this definition as unconstitutionally
overbroad. Commonwealth v. A Juvenile, 334 N.E.2d 617, 622
(Mass. 1975). And to avoid First Amendment concerns, the court
ruled that the remaining subsections (a) and (c) must be
construed to cover only conduct, not activities which involve the
"lawful exercise of a First Amendment right." Id. at 628; see
also Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct.)
("To be disorderly within the sense of the statute, the conduct
must disturb through acts other than speech . . . ."), review
denied, 668 N.E.2d 356 (Mass. 1996).
Nagle testified that he arrested Ajao under subsection
(c), not subsection (a), and we doubt that Ajao's conduct prior
to his arrest would support a charge under subsection (a). Thus,
the question for us is whether a reasonable jury could have found
that Nagle had probable cause to believe that Ajao had violated
subsection (c) by "creat[ing] a hazardous . . . condition by any
act which serves no legitimate purpose of the actor." We think
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that a reasonable jury, if it accepted the defense version of
events, could have so found.
An arrest of a struggling defendant--here, Abraham--is a
serious business. Even without a gathering crowd and traffic
blocked by a police cruiser, there is a potential for serious
violence and of injury both to the suspect and to the police.
Yet, assuming the truth of the defense evidence, Ajao--despite
repeated requests to get out of the way--circled the officers
while shouting, at least once got directly in their way, and then
refused to move away from the cruiser.
Such behavior can fairly be taken to fall directly within
the literal language of subsection (c): creating "a hazardous . .
. condition" by acts "which serve[] no legitimate purpose of the
actor." Indeed, a number of Massachusetts cases have upheld
disorderly conduct arrests where a refusal to obey police orders
created a safety threat. See Commonwealth v. Mulero, 650 N.E.2d
360, 363 (Mass. App. Ct.), review denied, 652 N.E.2d 145 (Mass.
1995); Commonwealth v. Bosk, 556 N.E.2d 1055, 1058 (Mass. App.
Ct. 1990); Commonwealth v. Carson, 411 N.E.2d 1337, 1338 (Mass.
App. Ct. 1980).
Literal language is not the full story. The state's
highest court has glossed the statute not to apply wherever the
activities are themselves the "lawful exercise of a First
Amendment right." A Juvenile, 334 N.E.2d at 628. And Ajao had a
free-speech right to protest the arrest of his companion, even if
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this distressed or annoyed the police. But by the same token,
"the mere fact that the conduct of the defendant was accompanied
by speech does not preclude a conviction" under the disorderly
conduct law. Carson, 411 N.E.2d at 1337.
We have very little difficulty in separating Ajao's
protected speech from his physical interference with two
policemen struggling to arrest and detain a third person, which
is not protected. Indeed, in Colten v. Kentucky, 407 U.S. 104,
109 (1972), the Supreme Court upheld a conviction for far less
disruptive conduct, observing that "Colten's conduct in refusing
to move on after being directed to do so" was not protect by the
First Amendment. See also City of Houston v. Hill, 482 U.S. 451,
463 n.11 (1987).
In some cases, peaceful demonstration and protected
expression may appear to merge. Possibly, this may explain
Commonwealth v. Feigenbaum, 536 N.E.2d 325, 328 (Mass. 1989),
where the state court held that the disorderly conduct statute
did not extend to the blocking of traffic in the course of a
peaceful political rally because the defendant's purpose was
legitimate. But Ajao's alleged conduct in the present case--
disrupting a police attempt to arrest a struggling companion--
seems to us both more dangerous and less legitimate.
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Further, even if Feigenbaum were given its most extreme
reading,2 making a good purpose a complete defense, it would be
up to a jury to determine whether Ajao was acting to express
protected speech or whether he also sought to interfere with the
arrest. The latter aim could not be a legitimate purpose on any
view of the matter. Yet a jury could infer, assuming it accepted
the defense version of events, that Ajao was trying to frustrate
the arrest by getting in the way or distracting the officers and
not simply trying to convey his objections.
In this case, the jury certainly did not have to accept
the police version of the events. The plaintiffs gave a more
benign account of their conduct and there were some
contradictions in the defendants' own testimony. But it was the
jury's province, after observing Nagle, the other officers, and
the plaintiffs on the witness stand to decide whom the jurors
believed. We simply disagree with the trial judge's conclusion
that she was free to make that credibility determination. If the
district judge thought that the credibility issues fell within
her province, this was a mistaken view of the governing rule.
See Smith, 76 F.3d at 425.3
2At least two state court decisions after Feigenbaum
suggest that an extreme reading is unwarranted and that a
defendant can be liable for disorderly conduct even where his
main objective is to protest police decisions. See Mulero,
650 N.E.2d at 363; Bosk, 556 N.E.2d at 1058.
3Nagle points to the trial judge's comment (made in
discussing jury instructions) that "I am basing my findings
with respect to Mr. Ajao on my evaluations of the credibility
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Three loose ends remain. One is the possibility that an
arrest based on probable cause might still be unlawful if the
police officer acted simply for the purpose of punishing
protected speech. There is some law on this subject, compare
Whren v. United States, 116 S. Ct. 1769, 1774 (1996), with Sloman
v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994), but we need not
pursue the issue here. Plaintiffs have not pointed to any direct
evidence that Nagle acted out of an improper motive to suppress
speech, and certainly nothing would remotely justify deciding
that issue against him by a directed verdict.
The second is the possibility, on remand, of a qualified
immunity defense for Nagle. This defense, preserved in the
district court, has been successfully invoked in this circuit
where a police officer made a reasonable, if arguably mistaken,
call on a close legal issue. E.g., Joyce v. Town of Tewksbury,
112 F.3d 19 (1st Cir. 1997); Veilleux v. Perschau, 101 F.3d 1, 3
(1st Cir. 1996). We have ignored the issue here only because the
city has chosen, for reasons not explained, to fight this appeal
on the merits.
Third, for the sake of completeness, we note that in 1995-
-well after the incident in this case--Massachusetts enacted a
separate "resisting arrest" statute that also covers situations
in which the person charged prevented or attempted to prevent the
of the witnesses as well as my evaluations of the sufficiency
of the evidence . . . ."
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arrest of another. Mass. Gen. Laws ch. 268, 32B. We need not
consider whether Ajao could have been charged under this statute,
which is narrower in focus but more severe in penalties than the
disorderly conduct statute applied here. There is no indication
that the adoption of the new statute was meant to eliminate or
alter the availability of the disorderly conduct law as a less
severe remedy for addressing disorderly interference with police
activity.
Turning now to the plaintiffs' appeal, we begin with their
claim that the district court erred in denying them a new trial
on their other claims which were rejected by the jury. The
arguments are largely conventional ones turning on the weight of
the evidence, the propriety of closing arguments, and possible
confusion on the part of the jury evidenced by an inquiry made by
the jury during its deliberations.
The denial of a new trial motion under Fed R. Civ. P. 59
is reviewed for abuse of discretion. Bogosian v. Mercedes-Benz
of North America, Inc., 104 F.3d 472, 482 (1st Cir. 1997).
Without describing the plaintiffs' arguments in detail, we find
no abuse here in rejecting each of the new-trial grounds thus far
mentioned. A potentially more serious claim is that the jury
pool may have excluded minorities, but the plaintiffs have
pointed to nothing in the record to support the charge or to show
that it was even raised in the trial court.
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The plaintiffs also object to the district court's failure
to grant injunctive relief. The relief sought was to prevent the
Boston police from continuing to use, at least without revision,
a training bulletin that sets forth the Model Penal Code
definition of disorderly conduct but fails to indicate that
subsection (b) has been struck down by the Supreme Judicial
Court. The city, which has not responded on this point, would be
well advised to clarify the manual on its own.
But the plaintiffs were not charged under subsection (b);
in fact, Nagle testified that he had been taught that subsection
(b) had been held invalid. Nor did the plaintiffs show that they
faced any real threat of future injury, e.g., by threats to
enforce subsection (b) against them in the future. City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983). The district court,
exercising its equitable authority to grant or deny injunctive
relief, certainly did not have to grant any here.
To conclude, we vacate the judgment against Nagle on the
false arrest claim and the now-mooted award of attorney's fees
against him and otherwise affirm the judgment entered on the jury
verdicts in favor of the defendants. The false arrest claim is
remanded for further proceedings consistent with this opinion.
It is so ordered.
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