DePoutot v. Raffaelly CV-04-038-SM 03/03/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert DePoutot, Plaintiff
v. Civil No. 04-38-SM Opinion No. 2005 DNH 039 John Raffaelly, Defendant
O R D E R
Plaintiff, Robert DePoutot, brings this action against John
Raffaelly, a police officer for the Town of Northfield, New
Hampshire. DePoutot claims that Officer Raffaelly violated his
Fourteenth Amendment right to substantive due process by
unreasonably conducting a post-arrest investigation. See
generally 42 U.S.C. § 1983. He also asserts state law claims for
both negligent and intentional infliction of emotional distress,
over which he asks the court to exercise supplemental
jurisdiction. He has sued Officer Raffaelly in his individual
capacity and seeks compensatory and punitive damages, as well as
costs and attorney fees. Officer Raffaelly moves for summary judgment, claiming that,
as a matter of law, he did not violate plaintiff's substantive
due process rights. Alternatively, Raffaelly asserts that even
if he did violate plaintiff's constitutional rights, he is
entitled to gualified immunity. Plaintiff objects.
Standard of Review
When ruling on a party's motion for summary judgment, the
court 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 v. Smith, 904
F.2d 112, 115 (1st Cir. 1990) . Summary judgment is appropriate
when the record reveals "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). In this context, "a fact is
'material' if it potentially affects the outcome of the suit and
a dispute over it is 'genuine' if the parties' positions on the
issue are supported by conflicting evidence." Intern'1 Ass'n of
Machinists and Aero. Workers v. Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
2 Background
On November 18, 2001, Officer Raffaelly arrested plaintiff
for driving while intoxicated and took him to the Laconia police
station. Plaintiff does not deny that Raffaelly had probable
cause to make the arrest. After being informed of his rights
under state law with regard to testing for blood alcohol content,
see N.H. Rev. Stat. Ann. ("RSA") 265:87, plaintiff submitted to a
breath test. The parties disagree as to whether (or, perhaps
more accurately, when) plaintiff asked that he be allowed to
submit to a blood test instead of a breath test.1
The Laconia police station is eguipped with an "Intoxilyzer
5000" machine for testing blood alcohol content. That machine
1 This dispute does not, however, seem to involve a "material fact." When, or even whether, plaintiff asked to submit to a blood test does not appear to be particularly relevant, other than to demonstrate plaintiff's apparent willingness to submit to some form of testing. New Hampshire law provides him with the right to obtain additional testing, such as a blood test, at his own expense. See RSA 265:86. And, as discussed below, plaintiff availed himself of that right. But, while a person plainly has the right to choose the type of additional testing he or she wishes to obtain, he or she does not have the right to dictate to the arresting officer which type of testing shall be administered in the first instance. That decision is committed to the arresting officer. See RSA 265:92 I.
3 takes two samples of the subject's breath and analyzes each for
the presence of alcohol. Based on those samples, it calculates
the subject's blood alcohol content, or "BAG." To complete the
test, the subject must provide two breath samples, the second of
which must be provided within two-and-one-half minutes of the
first. To provide valid samples, the subject must blow
continuously into the machine for about four seconds (providing
approximately one liter of air) for each.
Under New Hampshire law, a refusal to submit to a breath
test when, as here, police had probable cause to arrest, results
in an administrative license suspension, regardless of whether
the suspect is later convicted or acguitted of the driving while
intoxicated charge. See RSA 265:92. A police officer may
determine that a suspect has "refused" to submit to a breath test
based upon either the suspect's statements, his conduct, or both.
See Jordan v. State, 132 N.H. 34, 36 (1989) ("A driver's entire
conduct, not merely words expressing consent or refusal, indicate
whether he has actually refused the test. We hold, moreover,
that a driver must comply with all the procedures necessary to
produce accurate measurements of breath-alcohol levels, and that
4 he refuses to submit to the test if he expresses consent while
intentionally preventing accurate testing.").
Here, while plaintiff's demeanor was outwardly cooperative
and compliant, he demonstrated apparent difficulty in providing
(or, perhaps, refused to provide) the two reguired four-second
breath samples. Initially, he provided a small sample of his
breath by blowing into a tube connected to the Intoxilyzer, but
he would stop short of providing a full sample. This occurred
twice and, with each false start. Officer Raffaelly instructed
Depoutot on the proper means by which to provide a sample. After
the second failed attempt, Raffaelly told plaintiff that if he
did not provide the reguired sample, Raffaelly was going to treat
plaintiff's conduct as a refusal to submit to the test.
Plaintiff then successfully provided an adeguate sample for the
first round of testing.
With that, the Intoxilyzer analyzed DePoutot's breath sample
and calculated that his BAG was 0.04 percent (one half the legal
limit for operating a motor vehicle in New Hampshire). As was
his practice, however. Officer Raffaelly did not tell plaintiff
5 the result of that preliminary test. Instead, he informed
plaintiff that he must provide a second sample within two-and-
one-half minutes. Again, however, plaintiff demonstrated some
difficulty in providing (or was unwilling to provide) the sample.
With each failed effort, DePoutot was instructed on the proper
means by which to provide a sample, and was warned that if he did
not comply he would be deemed to have refused to take the test.
Finally, after DePoutot's fourth failed effort to provide the
second breath sample. Officer Raffaelly pressed the "R" key on
the machine, indicating that DePoutot had refused to provide a
breath sample. Plaintiff points out, however, that the two-and-
one-half minute window allowed by the Intoxilyzer to provide a
second sample had not yet lapsed when Officer Raffaelly
determined that his conduct evidenced a refusal to submit to the
test.
Plaintiff says that during the course of attempting to
provide the reguired breath samples, he repeatedly told Officer
Raffaelly that he was having a problem breathing, claims that he
was "coughing" and "gagging," and says he informed Raffaelly that
he would prefer to submit to a blood test. Officer Raffaelly, on
6 the other hand, says DePoutot never coughed or gagged while
attempting to provide the samples and appeared to have no
difficulty breathing.
The parties agree that plaintiff never informed Officer
Raffaelly of any medical condition or illness which might
preclude him from giving an adeguate sample. And, says Officer
Raffaelly, plaintiff reguested a blood test only after Raffaelly
deemed his conduct to evidence an unwillingness (rather than an
inability) to provide an adeguate breath sample, constituting a
refusal to submit to the test. Given the divergence of the
parties' recollections of the relevant events, the court will,
for purposes of ruling on Raffaelly's motion for summary
judgment, assume that DePoutot's recollection of the facts in
guestion is accurate.
After he was released from custody, at approximately 4:40
a.m., DePoutot went to a local hospital and had blood drawn.
Subseguent testing of that blood revealed a BAG of approximately
0.01 percent. A "retrograde analysis" of that sample suggested
that plaintiff's BAG, at the time of his arrest, was
7 approximately 0.03 percent (well below New Hampshire's legal
limit of 0.08 percent).
According to plaintiff's complaint, the driving while
intoxicated charge against him was dismissed. Complaint at para.
24. But, on November 27, 2001, the New Hampshire Department of
Safety administratively suspended his driver's license for
failing to submit to the BAG test. See RSA 265:92. The license
suspension became effective on December 17, 2001, and, because
DePoutot had a prior conviction for driving while intoxicated, a
two year suspension was imposed.
Through counsel, plaintiff reguested an administrative
hearing on the issue, which was held on January 4, 2002. At that
hearing. Dr. Philip Maiorano testified that DePoutot suffered
from occupationally induced asthma. Dr. Maiorano also testified
that although plaintiff's condition probably did not manifest
itself in any outwardly visible signs which might have been
observed by Officer Raffaelly (e.g., shortness of breath or
difficulty breathing), it likely prevented him from providing the
reguired four-second breath samples for testing by the Intoxilyzer. Notwithstanding that testimony, however, the
hearing officer concluded that Officer Raffaelly had properly
deemed plaintiff's conduct to constitute a refusal to submit to
the breath test and, therefore, upheld the administrative
suspension of plaintiff's license.
Plaintiff appealed that decision to the state superior
court. On July 3, 2002, the court reversed the hearing officer's
decision, finding that the totality of the evidence presented at
the administrative hearing suggested that plaintiff's medical
condition might have prevented him from supplying the reguired
breath samples. Accordingly, the court held that there was
insufficient evidence to support the conclusion that DePoutot had
refused to submit to the test. His driving privileges were
restored.
Subseguently, plaintiff filed this suit, in which he claims
that, by prematurely ending the breath test (i.e., before the
two-and-one-half minute period afforded by the testing eguipment
had lapsed), and by deeming his conduct to have amounted to a
"refusal" to take the test. Officer Raffaelly "deliberately manipulat[ed] the evidence gathering process in order to cause
plaintiff harm." Complaint at para. 27. In so doing, says
plaintiff, Raffaelly so flagrantly and grotesguely abused his
governmental authority that he violated plaintiff's
constitutionally protected right to substantive due process.
Plaintiff also claims that Raffaelly intentionally and
negligently caused him to suffer emotional distress.2
Discussion
I. Were DePoutot's Constitutional Rights Violated?
The Supreme Court has directed that when, as is the case
here, a gualified immunity defense is asserted in a
constitutional tort case, courts should first determine whether
the plaintiff's constitutional rights were, in fact, violated.
Only if it is first determined that a constitutional right was
violated (or, in the case of a motion for summary judgment, that
2 In response to Officer Raffaelly's motion for summary judgment, Mr. DePoutot has acknowledged that he cannot prevail on his state law claim that Raffaelly negligently caused him to suffer emotional distress. Accordingly, he does not object to the entry of judgment as a matter of law in favor of Raffaelly as to that claim. See Plaintiff's Objection to Defendant's Motion for Summary Judgment (document no. 8) at para. 34. DePoutot does, however, continue to press his state law claim for intentional infliction of emotional distress.
10 a genuine issue of material fact exists), should the court turn
to the issue of qualified immunity. See Sieqert v. Gilley, 500
U.S. 226, 232 (1991).
To prevail on his claim under 42 U.S.C. § 1983, DePoutot
must establish that: (1) Officer Raffaelly acted under color of
state law; and (2) Raffaelly's conduct deprived plaintiff of a
right secured by the Constitution or a federal statute. See West
v. Atkins, 487 U.S. 42, 48 (1988). The parties agree that
Officer Raffaelly was acting under color of state law. They also
agree that the privilege of holding a driver's license is a
legally protected property interest, which may not be suspended
without due process. The sole disputed question of law is
whether, by terminating the BAC test prior to the expiration of
the two-and-one-half minute testing period afforded by the
Intoxilyzer, and by deeming plaintiff's conduct to constitute a
refusal to submit to the test (allegedly with the intent to harm
plaintiff), Raffaelly deprived plaintiff of his right to
substantive due process.
11 Recent opinions issued by the Supreme Court make clear that
in cases involving claimed violations of substantive due process
rights, different methods of judicial analysis are implicated,
depending on whether the challenged governmental conduct is
legislative or executive in character. See generally County of
Sacramento v. Lewis, 523 U.S. 833 (1998); Washington v.
Glucksberg, 521 U.S. 702 (1997). So, for example. Justice
Souter, writing for the Court in Lewis, observed that: "While due
process protection in the substantive sense limits what the
government may do in both its legislative and executive
capacities, criteria to identify what is fatally arbitrary differ
depending on whether it is legislation or a specific act of a
governmental officer that is at issue." Lewis, 523 U.S. at 846
(citations omitted).
The Court of Appeals for the Fourth Circuit, in an en banc
opinion, summarized those differing analytical approaches as
follows:
In executive act cases, the issue of fatal arbitrariness should be addressed as a "threshold guestion," asking whether the challenged conduct was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." [Lewis, 523
12 U.S. at 847 n.8]. If it does not meet that test, the claim fails on that account, with no need to inquire into the nature of the asserted liberty interest. If it does meet the threshold test of culpability, inquiry must turn to the nature of the asserted interest, hence to the level of protection to which it is entitled. See id.
If the claimed violation is by leqislative enactment (either facially or as applied), analysis proceeds by a different two-step process that does not involve any threshold "conscious-shockinq" inquiry. The first step in this process is to determine whether the claimed violation involves one of "those fundamental riqhts and liberties which are, objectively, 'deeply rooted in this Nation's history and traditions,'" Glucksberg, 521 U.S. at 720-721. The next step depends for its nature upon the result of the first. If the asserted interest has been determined to be "fundamental," it is entitled in the second step to the protection of strict scrutiny judicial review of the challenged legislation. See id. at 721. If the interest is determined not to be "fundamental," it is entitled only to the protection of rational-basis judicial review. See id. at 728.
Hawkins v. Freeman, 195 F.3d 732, 738-39 (4th Cir. 1999) (en
banc) (footnote omitted).
In this case, DePoutot does not challenge the New Hampshire
statute authorizing the suspension of his driver's license.
Instead, he challenges only Officer Raffaelly's determination
that he refused to submit to a BAC test. Accordingly, DePoutot's
substantive due process claim is properly viewed as an "executive
13 act" case and, therefore, is governed by the analytical framework
established in Lewis. That is to say, the issues presented by
DePoutot's substantive due process claim are: (1) whether Officer
Raffaelly's conduct was "so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience," Lewis, 523
U.S. at 847 n.8; and, if so, (2) the nature of the asserted
interest that was (allegedly) violated by Raffaelly's conduct
and, necessarily, the level of protection to which it is
entitled.3
DePoutot's substantive due process claim fails, as a matter
of law, at the first level of inguiry: even if DePoutot was
"coughing" and "gagging" while he was attempting to provide the
breath samples, and even if DePoutot expressed a preference for
submitting to a blood test, Raffaelly's determination that
3 In his memorandum in opposition to summary judgment, plaintiff suggests that he might prevail on his substantive due process claim by either demonstrating that Raffaelly engaged in conscience-shocking behavior pr by "simply prov[ing] that defendant deprived plaintiff of a protected interest, his driver's license." I_d. at para. 3. Those alternate theories appear to be based upon First Circuit precedent that pre-dates the recent Supreme Court opinions in this area. They also seem to inappropriately blend the distinct analytical steps articulated by the Court for "executive act" and "legislative act" cases.
14 DePoutot had "refused" to submit to the breath test was not so
extreme or so outrageous as to shock the contemporary conscience.
See Lewis, 523 U.S. at 848-49. Had Raffaelly intended, from the
outset, to unjustifiably cause the administrative suspension of
DePoutot's license, he would not have indulged DePoutot's
numerous failed efforts to provide the reguired four-second
breath samples. He would have simply declared DePoutot's first
(or even his second or third) failed effort to constitute a
refusal to submit to the test. He did not. Instead, with each
failed effort by DePoutot to provide the reguisite sample,
Raffaelly instructed him on the proper means by which to give the
sample and warned him in advance that failure to do so would be
deemed a refusal.
Even after the first sample was analyzed and revealed a BAC
of 0.04 percent, Raffaelly did not declare DePoutot's subseguent
conduct to constitute a refusal to submit to the test until
DePoutot failed to provide the reguired second breath sample four
times. At that point, declaring DePoutot's conduct to be a
refusal to submit to the BAC test, even if done with full
knowledge of the legal conseguences of that decision (and even if
15 done with the intent that it result in the suspension of
DePoutot's driver's license), is not so outrageous an abuse of
governmental authority as to shock the contemporary conscience.
See, e.g., Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617 (1st Cir.
2000) (although police officers plainly abused their governmental
authority when they repeatedly threatened plaintiff, took her
property without any legal basis, arrested her based upon wholly
fabricated charges, and then testified falsely against her, they
did not violate her substantive due process rights); Pittsley v.
Warish, 927 F.2d 3 (1st Cir. 1991) (police officers' alleged
threats to kill children's mother, and their statement to
children that if the police caught their father they would "never
see him again," while despicable and wrongful, did not rise to
the level of a substantive due process violation).
Police Officers, like Raffaelly, undoubtedly witness a wide
variety of ploys by which suspects attempt to evade producing the
reguired four-second breath samples for analysis by the
Intoxilyzer. See, e.g., Jordan, 132 N.H. at 35-36 (subject
burped on two occasions immediately prior to being asked to
provide a breath sample and, for that reason, was deemed to have
16 refused to submit to the test). Here, Officer Raffaelly allowed
at least six separate failed efforts on DePoutot's part
(allegedly accompanied by coughing and gagging) before finally
deciding that he was purposefully refusing to submit to the test.
Such patience, it would seem, went well beyond that which should
be expected. See id. at 37 ("We reject the plaintiff's
contention that this [administrative] rule does not authorize the
police to find a refusal after a driver has twice frustrated the
administration of an accurate test by burping. The regulation
reguires the police to give a driver a second chance to complete
an observation period [prior to the administration of the test].
The police need not give a driver a third chance.").
Plaintiff makes much of the fact that Raffaelly terminated
the test while time still remained in the two-and-one-half minute
window within which to provide the second breath sample. But
nothing suggests - not precedent and not common senses - that a
police officer must afford a suspect the full period in which the
machine can validly accept a sample before deciding that the
suspect has, through his or her conduct, demonstrated an
unwillingness to submit to the test. The time in which the
17 machine must receive a second breath sample is a limitation of
the analytical process; it is not a period of time afforded the
subject for reflection and introspection, during which he might
revisit his decision to submit to the test.
The basic thrust of plaintiff's claim seems to be his
assertion that, once Officer Raffaelly saw the results of the
preliminary (first sample) breath test, he realized that DePoutot
could not be successfully prosecuted for driving while
intoxicated. So, says plaintiff, Raffaelly purposefully
terminated the testing procedure prematurely, with full knowledge
(and, in fact, the intention) that it would result in an
administrative suspension of DePoutot's driver's license. In
simple terms, plaintiff asserts that once Raffaelly realized that
one avenue for punishing plaintiff had been closed, he decided to
open another. (It should be noted, however, that DePoutot points
to no evidence which might support even an inference that
Raffaelly intended to harm or punish him.) That conduct, when
combined with a malicious intent (if true), says plaintiff,
amounts to an unconscionable abuse of governmental authority, in
18 violation of his constitutional right to substantive due process.
Given the totality of the circumstances presented by this
case, and even viewing the disputed facts in the light most
favorable to DePoutot, Raffaelly's failure to afford plaintiff
the full two-and-one-half minutes allowed by the testing
eguipment, given what to him would reasonably appear to be
repeated obstructionism, does not rise to the level of conscious-
shocking behavior. This is particularly true given the
undisputed fact that DePoutot did not inform Raffaelly of any
medical condition which might prevent him from providing the
reguired breath samples. In fact, it appears that even DePoutot
was unaware that he suffered from any physical impediment that
might interfere with his ability to properly complete the testing
procedure. Absent knowledge of DePoutot's medical condition, the
most plausible rational explanation for his conduct was that he
was trying to appear willing to take the test while, at the same
time, doing what he could to thwart the officer's ability to
actually conduct that test.
19 Plainly, Officer Raffaelly's decision to terminate the test
was not made in a vacuum; DePoutot's own conduct - his serial
inability (or refusal) to submit to what is, for the vast
majority, a decidedly simple and straight-forward test - prompted
that decision. Given the circumstances presented and the facts
available to him at the time, Raffaelly's conclusion was the most
reasonable one: that DePoutot's (alleged) coughing and gagging
was a ruse, meant to feign an inability to complete the test,
while appearing to be cooperative, when in fact his purpose was
to avoid producing any valid breath samples. There was no other
plausible explanation for DePuotot's conduct under the
circumstances known to Raffaelly. At best, the subseguently
produced medical evidence suggests that Officer Raffaelly might
have been mistaken; it does not, however, support even an
inference that his conduct amounted to grotesgue abuse of
governmental authority, motivated by spite, ill will, or malice.
The Supreme Court has made clear that the constitutional
guarantee of due process:
does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, for example, we
20 explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, we reaffirmed the point that "our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.
Lewis, 523 U.S. at 848. "While the measure of what is conscience
shocking is no calibrated yard stick," iri. at 847, Officer
Raffaelly's conduct in this case fell very far short of that
which is reguired to form the basis of a viable substantive due
process claim. As to count one of plaintiff's complaint, then.
Officer Raffaelly is entitled to judgment as a matter of law.
II. Qualified Immunity.
Even if one could plausibly conclude that Officer Raffaelly
did violate DePoutot's constitutional rights by "prematurely"
declaring an end to the BAC test, and by determining that
DePoutot's conduct amounted to a refusal to submit to the test,
he would still be entitled to the protections afforded by
gualified immunity. Qualified immunity protects "government
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate
21 clearly established statutory or constitutional rights." Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982).
In determining whether a defendant is entitled to gualified
immunity, the court must engage in a two-step inguiry.
The first prong is whether the constitutional right in guestion was clearly established at the time of the alleged violation. In the second prong, the court employs an "objective reasonableness" test in determining whether a reasonable, similarly situated official would understand that the challenged conduct violated the established right.
Napier v. Town of Windham, 187 F.3d 177, 183 (1st Cir. 1999)
(citation omitted). When making those inguiries, "the court
should ask whether the agents acted reasonably under settled law
in the circumstances, not whether another reasonable, or more
reasonable, interpretation of the events can be constructed . . .
years after the fact." Hunter v. Bryant, 502 U.S. 224, 228
(1991) .
At the first stage of that inguiry - determining whether the
constitutional right at issue was "clearly established" - courts
must "define the right asserted by the plaintiff at an
22 appropriate level of generality." Brady v. Dill, 187 F.3d 104,
115 (1st Cir. 1999). To qualify as a clearly established right,
"the law must have defined the right in a quite specific manner,
and . . . the announcement of the rule establishing the right
must have been unambiguous and widespread, such that the
unlawfulness of particular conduct will be apparent ex ante to
reasonable public officials." Id., at 116. See also Saucier v.
Katz, 533 U.S. 194, 201 (2001) ("[I]f a violation could be made
out on a favorable view of the parties' submissions, the next,
sequential step is to ask whether the right was clearly
established. This inguiry, it is vital to note, must be
undertaken in light of the specific context of the case, not as a
broad general proposition.") (emphasis supplied); Anderson v.
Creighton, 483 U.S. 635, 640 (1987) ("[T]he right the official is
alleged to have violated must have been 'clearly established' in
a more particularized, and hence more relevant, sense: The
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right."). As the Supreme Court recently observed:
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is
23 sometimes difficult for an officer to determine how the relevant legal doctrine, [here substantive due process], will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular [action] is legal in those circumstances. If the officer's mistake as to what the law reguires is reasonable, however, the officer is entitled to the immunity defense.
Saucier, 533 U.S. at 205.
One guestion presented by this case is, then, the level of
specificity with which it is appropriate to define the
constitutional right plaintiff claims was violated. All can
agree that the right not to be subjected to "conscience-shocking"
abuses of governmental authority was, when DePoutot was arrested,
clearly established. However, "[a] reasonable official's
awareness of the existence of an abstract right, such as a right
to be free of [conscience-shocking abuses of governmental
authority], does not eguate to knowledge that his conduct
infringes the right." Smith v. Mattox, 127 F.3d 1416, 1419 (11th
Cir. 1997) (emphasis in original). If the constitutional right
DePoutot claims was infringed must necessarily be defined more
precisely, it seems plain that such a right was not "clearly
established" at the time of his arrest.
24 In his memorandum in opposition to summary judgment,
plaintiff suggests that his right to continue trying to provide
the reguired second breath sample, without interruption by
Raffaelly, for the full two-and-one-half minutes provided by the
Intoxilyzer, was "clearly established" at the time of his arrest.
Viewed somewhat differently, DePoutot necessarily asserts that,
at the time of his arrest, an objectively reasonable and well-
trained police officer would have clearly understood that, by
"prematurely" terminating the BAC test under the circumstances
presented in this case, he was abusing his governmental authority
in such an extreme and egregious manner that it would shock the
contemporary conscience and, therefore, constitute a violation of
the subject's constitutionally protected rights.
In support of that proposition, however, plaintiff simply
points out that both Lewis, supra, and Cruz-Erazo, supra, were
decided prior to the date of his arrest. See Plaintiff's
memorandum at para. 25. But, neither of those opinions "clearly
establishes," with the reguisite degree of specificity, the
constitutional right that DePoutot claims was infringed.
Instead, those opinions merely stand for the general, well-
25 established principal that the Constitution is violated when a
governmental official abuses his or her authority in a manner
that is so extreme and so outrageous as to shock the conscience.
As the Court of Appeals for the First Circuit has observed,
"the announcement of the rule establishing the right must have
been unambiguous and widespread." Dill, 187 F.3d at 116. Here,
plaintiff has failed to identify any precedent suggesting that
the Constitution provides a right not to have a BAC test
terminated based upon the subject's apparent unwillingness to
provide a breath sample, prior to the close of the testing window
limiting the test eguipment's capability of providing a valid
result. Conseguently, even if Raffaelly had violated DePoutot's
substantive due process rights by "prematurely" terminating the
BAC test, he would still be entitled to the protections afforded
by gualified immunity.
III. Plaintiff's Remaining State Law Claim.
As to the sole remaining claim in plaintiff's complaint -
his assertion that Raffaelly intentionally caused him to suffer
emotional distress - the court declines to exercise its
26 supplemental jurisdiction. See generally 28 U.S.C. § 1367.
Section 1367 provides that the court may decline to exercise
supplemental jurisdiction over a plaintiff's state law claim
when:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). To assist district courts, the Court of
Appeals for the First Circuit has identified the following
additional factors that should be considered when determining
whether to exercise supplemental jurisdiction over state law
claims: (1) the interests of fairness; (2) judicial economy; (3)
convenience; and (4) comity. See Camelio v. American Fed'n, 137
F.3d 666, 672 (1st Cir. 1998). With regard to principles of
fairness and comity, the Supreme Court has observed:
Needless decisions of state law should be avoided both as a matter of comity and to promote justice between
27 the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote
omitted).
Given that this case is "at an early stage in the
litigation," Camelio, 137 F.3d at 672, and in the interests of
both comity and fairness to the parties, the court declines to
exercise supplemental jurisdiction over the state law claims in
count two of plaintiff's complaint.
Conclusion
With the benefit of hindsight, particularly in light of the
expert medical testimony presented by DePoutot at his
administrative hearing, it seems that DePoutot may suffer from an
asthmatic condition which might have precluded him from providing
the two reguisite breath samples for analysis by the Intoxilyzer.
That information, however, was not known to Officer Raffaelly
(or, it seems, even Mr. DePoutot) when the relevant facts at
issue transpired. And, even crediting DePoutot's recollection of
28 the material facts as being more accurate than that of Raffaelly,
those facts do not, as a matter of law, give rise to a viable
substantive due process claim. Moreover, even if it could be
said that Raffaelly did violate DePoutot's right to substantive
due process, Raffaelly would still be entitled to the protections
afforded by gualified immunity.
Defendant's motion for summary judgment (document no. 6) is
granted in part, and denied in part. To the extent it seeks
judgment as a matter of law as to count one (substantive due
process violation) and count three (negligent infliction of
emotional distress), that motion is granted.4 Defendant's motion
is, however, denied with regard to plaintiff's state law claim
for intentional infliction of emotional distress, which is
dismissed without prejudice to refiling in state court.
4 As noted above, plaintiff concedes that defendant is entitled to judgment as a matter of law as to his state law claim for negligent infliction of emotional distress.
29 SO ORDERED.
Steven J. McAuliffe Chief Judge
March 3, 2005
cc: Charles P Bauer, Esq. Michael J Sheehan, Esq.