Kauch v. City of Cranston , 59 F. App'x 350 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2329
BRIAN S. KAUCH,
Plaintiff, Appellant,
v.
CITY OF CRANSTON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Joseph R. Palumbo, Jr., on brief for appellant.
William T. Murphy, with whom William T. Murphy Law Offices,
Inc. was on brief for appellees City of Cranston, Cranston Finance
Director, and Officer Matthew Kite.
Marc DeSisto, with whom DeSisto Law was on brief for appellees
Town of Glocester, David Piccirillo, and Joseph Mattera.
March 24, 2003
Per Curiam. Brian S. Kauch challenges a district court
judgment which dismissed his false-arrest claims against three
police officers. See 42 U.S.C. § 1983. We affirm.
Pursuant to an extant restraining order entered by the
Family Court, Kauch was entitled to visit with his children each
Wednesday from 4:00 to 8:00 p.m., every other weekend, and on
additional occasions mutually agreeable to Kauch and his ex-wife,
Joan Berrigan. On June 14, 2000 — a Wednesday — the Family Court
entered an order restraining Kauch from further contact with
Berrigan, while preserving his extant child-visitation rights.
Shortly after Kauch telephoned Berrigan at her residence that same
evening, he was arrested for violating the no-contact order.
On appeal, Kauch contests the qualified-immunity defenses
asserted by the three arresting officers pursuant to section 1983.
First, he maintains that the defendant officers unreasonably
understood that any contact he had with Berrigan, no matter how
innocuous, would violate the restraining order. See State v.
Conti, 672 A.2d 885, 886-87 (R.I. 1996) (noting that mere
coincidental contacts are not violative of no-contact order).
Thus, in effect Kauch would have police officers determine the
nuances of criminal complaints prior to making an arrest.
On the contrary, the “[p]olice are afforded immunity
[from § 1983 actions for damages] ‘so long as the presence of
probable cause [to arrest] is at least arguable.’” Fletcher v.
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Town of Clinton, 196 F.3d 41, 53 (1st Cir. 1999) (emphasis added;
citation omitted). The defendants were aware both that the
restraining order explicitly prohibited Kauch from contacting
Berrigan at home, and that Berrigan had filed a complaint asserting
that Kauch had contacted her at home. Further, even assuming that
the defendant policemen had been aware of it, the Conti case is at
least arguably distinguishable, in that it involved chance public
encounters, rather than a targeted telephone communication to the
private residence of the protected party.
Second, Kauch contends that had the restraining order
been reviewed with care by the defendants beforehand, they would
have discovered that it excepted contacts necessary to arrange for
the authorized child visitations. Be that as it may, once the
police possess an evidentiary foundation sufficient to establish
probable cause to arrest, they are not required to investigate
further in order to rule out all conceivable alternative
explanations. See United States v. Bonilla Romero, 836 F.2d 39, 46
(1st Cir. 1987); see also Kelley v. Myler, 149 F.3d 641, 646-47
(7th Cir. 1998).
Finally, the instant restraining order arguably contains
no such exception, in that it simply permitted “visitation as
[previously] ordered.” Thus, it would be entirely reasonable to
infer that Kauch was still entitled to the regularly-scheduled
visitations with his children — on Wednesdays and alternate
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weekends — which visitations would not require contact between him
and Berrigan, and that he simply was no longer entitled to contact
Berrigan to arrange for any visitations other than the regularly-
scheduled ones.
Accordingly, the district court judgment must be
affirmed. See 1st Cir. Loc. R. 27(c).
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