Diaz v. City of Fitchburg

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1899



    JULIO DIAZ, RUBEN DIAZ, JEFFREY DUENES, GUILLERMO PLAZA,

              GUILLERMO PLAZA, AMILCAR RODRIGUEZ,

         ANDRE ROSADO AND DALILA SERRANO, ADMINISTRATOR,



                     Plaintiffs, Appellants,



                                v.



       CITY OF FITCHBURG, EDWARD GALLANT, JR., MARK LOUNEY,

 JOHN O'LEARY, PHILIP KEARNS, JOHN J. MURRAY, DENNIS BANVILLE,

  JOHN MAKI, RONALD L'ECUYER, JAMES F. GILBERT, JAMES GILLIS,

  ERNEST MARTINEAU, GARY OUELLETTE, DAVID DAIGLE, TODD DEACON,

                                

                     Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

    [Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]


Before

                                

                      Stahl, Circuit Judge,

                 Magill,* Senior Circuit Judge,

                   and Lipez, Circuit Judge.


Darragh K. Kasakoff, with whom Darragh K. Kasakoff, was on

brief for appellants.

     Patrick J. Costello, with whom Douglas I. Louison, Regina M.

Gilgun, and Merrick & Louison, were on brief for appellees.


May 14, 1999


_____________________

*Of the Eighth Circuit, sitting by designation.          STAHL, Circuit Judge.  Plaintiffs Julio Diaz, Ruben Diaz,

Jeffrey Duenes, Guillermo Plaza, Amilcar Rodriguez, and Andre

Rosado brought civil rights and common law claims for damages and

equitable relief against the City of Fitchburg, Massachusetts, and

several officers of the Fitchburg Police Department.  They alleged,

inter alia, that their custodial arrest for offending a city

ordinance punishable only by a fine was unconstitutional and/or

contrary to Massachusetts public policy.  Plaintiffs appeal from

the district court's sua sponte award of summary judgment to

defendants.  We affirm.

                               I.

          Because this is an appeal from a grant of summary

judgment to defendants, we recite the facts in the light most

favorable to plaintiffs.  See Aponte Matos v. Toledo Davila, 135

F.3d 182, 185 (1st Cir. 1998).

          Since 1993, the City of Fitchburg has had in effect an

ordinance that prohibits obstruction of public passages within the

city ("Ordinance").  See Fitchburg, Mass., Code art. III,  132-34

(1994).  A violation of the Ordinance is punishable only by a $300

fine.  See id.

          On the evening of October 14, 1993, the Fitchburg Police

Department and its Special Response Team ("SRT") executed a search

warrant at a private residence.  The SRT is a special unit of the

police department comprised of officers trained to respond to high-

risk situations.  SRT officers dress in black uniforms and hooded

masks which do not bear any identifying insignia.  Perhaps because

of the SRT's garb, plaintiffs refer to the team as a "paramilitary"

unit.

          After observing the raid and as they were leaving the

scene following the search, Captain Mark Louney and Sergeant John

O'Leary noticed plaintiffs congregated outside a nearby residence. 

The two officers stopped and ordered the group to move.  Plaintiffs

did not comply with this directive.  Several minutes later,

apparently with the understanding that plaintiffs were violating

the Ordinance, Captain Louney summoned the SRT, which had returned

to a nearby police station, to arrest plaintiffs.  Within minutes

and without a warrant, approximately ten members of the team

arrived in an unmarked van and exited with guns drawn.   Plaintiffs

claim that they then were forced to the ground, frisked,

handcuffed, and thrown face down in the van on top of one another. 

Plaintiffs further allege that, en route to the police station,

they were threatened, punched, stepped and spit on, and subjected

to racial insults.

          Plaintiffs were charged with violating the Ordinance,

processed, and jailed until released on bail.  Criminal complaints

were filed against them.  Complaints against two plaintiffs were

continued without a finding to August 19, 1994, although these two

plaintiffs were ordered to pay $50 in court costs.  Complaints

against the remaining plaintiffs were dismissed after the City

failed to comply with a court order to disclose the names of the

SRT members who participated in the arrest.

          On September 9, 1994, plaintiffs filed a complaint in

Massachusetts Superior Court.  They asserted claims under 42 U.S.C.

 1983 and a number of pendent state law theories.  Defendants

removed the case to federal court on the basis of federal question

jurisdiction.  Plaintiffs then filed an amended complaint stating

eight causes of action.  Count II of the amended complaint, the

basis of this appeal, sought a declaratory judgment that custodial

arrest for a fine-only ordinance in the absence of exigent

circumstances violates the United States Constitution, the

Massachusetts Constitution, and Massachusetts public policy. 

          Plaintiffs moved for summary judgment with respect to

Count II.  The district court referred the motion to Magistrate

Judge Swartwood for a report and recommendation.  On September 26,

1997, the magistrate judge recommended that, inter alia,

plaintiffs' motion for summary judgment on Count II be denied. 

Acting sua sponte, he also recommended that summary judgment be

entered for defendants on Count II.  On October 24, 1997, the

district court adopted the report and recommendation.

          In December 1997, the parties consented to having

Magistrate Judge Swartwood try the case and enter final judgment. 

See 28 U.S.C.  636(c).  Plaintiffs then filed a second amended

complaint, which alleged that the use of a paramilitary unit to

effect a custodial arrest for a fine-only ordinance in the absence

of exigent circumstances is unlawful.  Following the amendment to

their complaint, plaintiffs never sought summary judgment or

judgment as a matter of law on this new allegation.

          In April 1998, a jury returned a verdict for defendants

on all counts including, inter alia, excessive force, false arrest,

false imprisonment, and assault and battery.  Plaintiffs

subsequently filed a motion for a new trial, which the district

court denied.  On June 30, 1998, Magistrate Judge Swartwood entered

final judgment for defendants on all counts.

                              II.

          On appeal, plaintiffs advance one preserved argument:  in

the absence of exigent circumstances, a custodial arrest for an

offense punishable only by a fine is, as a matter of law, violative

of the Fourth Amendment, Article Fourteen of the Massachusetts

Constitution, and Massachusetts public policy.

A. Fourth Amendment

          Plaintiffs have framed their Fourth Amendment argument in

very broad terms.  As we have indicated, plaintiffs ask us to

declare that a custodial arrest made in the absence of "exigent

circumstances" for violation of an ordinance punishable only by a

fine always violates the Fourth Amendment's reasonableness

requirement.  Yet plaintiffs have provided us with little basis for

issuing so sweeping a ruling.

          We start with fundamental principles.  Where warrantless

arrests for criminal offenses are concerned, the Fourth Amendment

is satisfied if the arresting officer had probable cause and the

arrest was "reasonable" under the totality of the circumstances. 

See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).  In determining

reasonableness, the United States Supreme Court has "consistently

eschewed bright-line rules," and insisted instead on an evaluation

of all of the circumstances of a particular case.  Ohio v.

Robinette, 519 U.S. 33, 39 (1996) (holding that the Fourth

Amendment does not inevitably require that a lawfully-seized

defendant be advised of his freedom to leave before his consent to

search will be recognized as voluntary) (citations omitted). 

          This litigation demonstrates why the Supreme Court has

favored the case-by-case approach over bright-line rules.  The

Ordinance (the constitutionality of which is not here challenged)

is violated only after the offender has refused a police officer's

order to move along.  See supra note 1.  In other words, the

Ordinance only comes into play when a person unlawfully obstructing

a highway or other public passage persists in his or her violation. 

Thus, a Fitchburg police officer confronting a person in violation

of the Ordinance has limited options: the officer may either allow

the criminal obstruction to continue (perhaps issuing the offender

a citation, as plaintiff's counsel suggested at oral argument) or

end it by seizing the offender and removing him or her from the

scene of the offense.  If the officer always were obligated to

allow the criminal obstruction to continue, he or she would be

unable to satisfy the Ordinance's apparent purpose of assuring

public convenience and safety except in exigent circumstances. 

Plaintiffs, however, have not even attempted to establish the

contours of their proposed "exigent circumstances" exception.  If

the concept were understood to encompass only emergency situations,

as it is understood in other contexts, an officer seemingly could

not clear the obstructed passage merely to ensure public

convenience.  This strikes us as sufficient reason to reject a per

se rule.

          Of course, there may be circumstances when it would be

unreasonable to subject an offender of a fine-only ordinance to

custodial arrest and interrogation.  Indeed, an arrest for

violation of this ordinance may, in some circumstances, be

unreasonable.  But as we have just explained, a custodial arrest

for violation of a fine-only ordinance is not inevitably

unreasonable.  We therefore reject plaintiffs' Fourth Amendment

claim.

B. State Claims

          Plaintiffs additionally argue that Article Fourteen of

the Massachusetts Constitution and Massachusetts public policy

prohibit custodial arrests for fine-only offenses absent exigent

circumstances.  In support of their Article Fourteen claim,

plaintiffs point to Massachusetts cases affording a more expansive

sweep to Article Fourteen than the United States Supreme Court has

given to the Fourth Amendment.  They do not, however, direct us to

any on-point Massachusetts authority.

          In any event, we think it sufficient to observe that both

federal courts and Massachusetts courts train their focus on

whether the government has acted in a reasonable manner.  See Mass.

Const. part I, art. XIV ("[e]very subject has a right to be secure

from all unreasonable searches, and seizures, of his person, his

houses, his papers, and all his possessions").  And for the very

same reasons that lead us to reject a per se rule under the Fourth

Amendment, see supra at 6-9, we believe that the Massachusetts

Supreme Judicial Court would reject a per se rule under Article

Fourteen.  In so ruling, we recognize that, in marginal cases,

there are differences between the manner in which the federal

courts and the Massachusetts courts have assessed constitutional

reasonableness.  We simply do not believe that this is a marginal

case.

          With respect to plaintiffs' somewhat cryptic public

policy argument, which appears to be presented as an alternative

basis for plaintiffs' proposed per se rule (in the event we find

plaintiffs' Fourth Amendment and Article Fourteen arguments

unconvincing), we think it sufficient to predict that, for reasons

already stated, the Massachusetts courts would not impose such a

rule absent binding constitutional or statutory authority directing

them to do so.  We therefore summarily reject this argument.

                                        III.

          For the reasons set forth above, we affirm the district

court's judgment in all respects.  

          Affirmed.  Costs to appellees.