MEMORANDUM & ORDER
GORTON, District Judge.
The plaintiff alleges that she was arrested and prosecuted without probable cause in violation of her state and federal civil rights. The defendants move for summary judgment.
I.
Background
The plaintiff, Pamela Hilchey (“Hil-chey”) was arrested on September 7, 2002, on charges of assault with a deadly weapon after an incident in which she allegedly drove her car “at” three children, all under the age of ten years, who lived in her neighborhood. She was subsequently acquitted of all charges. She alleges that there was not probable cause to believe that she had committed the alleged assault and, more broadly, that the entire episode resulted from a personal vendetta against her and her husband carried out by the Haverhill Police Department. She filed suit in this Court on January 26, 2005. Her Second Amended Complaint alleges that her arrest and prosecution without probable cause constitute violations of 42 U.S.C. § 1983 and M.G.L. c. 12 §§ 11H and I (“the Massachusetts Civil Rights Act” or “the MCRA”).
The defendants are the City of Haverhill (“the City”), the Mayor of the City, John J. Guerin, Jr. (“Guerin” or “the Mayor”), the Chief of Police, Steven Brighi (“Brighi”), the Acting Chief of Police, Kim J. Parolisi, (“Parolisi”), a police captain, Alan Ratte (“Ratte”), two police detectives, Lance Dawkins (“Dawkins”) and George DeKeon, Jr. (“DeKeon”), two police sergeants, John P. Arahovites (“Arahovites”) and Victor M. Pellot (“Pellot”), a police lieutenant, William Leeman (“Leeman”) and the investigating police officer, Gary J. Melanson (“Melanson”). Each of the eleven defendants is alleged to have violated § 1983 and the MCRA. This Court dismissed the MCRA claim against the City on July 26, 2006, because municipalities cannot be sued under that statute as a matter of state law. Before the Court is the defendants’ motion for summary judgment on all remaining counts.
On the morning of September 7, 2002, Katelyn Monigle, Matthew Monigle and Amanda Bastarache (collectively “the children”) were riding their bicycles in the streets of the neighborhood they shared with Hilchey. Hilchey drove by, allegedly passing at high speed within one foot of the children and causing them to fear that she intended to hit them. The children went into the Monigles’ house, told Mrs. Monigle what had happened and she called the police. Officer Melanson responded to the call and, after interviewing Mrs. Moni-gle and the children and taking written statements from the children at the police station that afternoon, applied for a warrant for Hilchey’s arrest. Hilchey was arrested that evening without being interviewed.
In addition to the incident of September 7, 2002, the parties agree that the police had been called to Hilchey’s neighborhood in connection with several prior incidents. Hilchey alleges first that, with that history in mind, the police had decided to take action against her on September 7th irrespective of the facts of the matter. She also alleges that her interactions with the police reveal an institutional policy of harassment against her and her husband.
II.
Analysis
A. Legal Standard
The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”
Mesnick v. General Elec. Co.,
950 F.2d 816, 822 (1st Cir.1991)(quoting
Garside v. Oseo Drug, Inc.,
895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, based upon the pleadings, discovery and affidavits, “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
A fact is material if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.”
Id.
A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue.
Celotex Corp. v. Catrett,
477 U.S. 317, 324,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party’s favor.
O’Connor v. Steeves,
994 F.2d 905, 907 (1st Cir.1998). If, after viewing the record in the non-moving party’s favor, the Court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.
B. Section 1983 and the MCRA
The MCRA is analogous to § 1983 in nearly every respect.
Duarte v. Healy,
405 Mass. 43, 537 N.E.2d 1230 (1989). It provides a cause of action to any person deprived of constitutional, federal, or state civil rights “by threats, intimidation, or coercion”. M.G.L. c. 12 § 11H. There are, however, two notable differences between the federal and state statutes: 1) the plaintiff in an MCRA suit need not prove state action and 2) municipalities are not “persons” for MCRA purposes and so may not be sued under it.
Kelley v. LaForce,
288 F.3d 1, 11 (1st Cir.2002). These differences are of no moment here: the first does not apply because the defendants are state actors and the second was addressed when this Court allowed the City’s motion to dismiss the state-law count against it.
C. Probable Cause
The defendants’ first contention is that there was probable cause to believe that Hilchey had committed the crime for which she was arrested. If probable cause existed, there was no deprivation of any constitutional right.
Roche v. John Hancock Mut. Life Ins. Co.,
81 F.3d 249, 254 (1st Cir.1996). The children’s statements to Officer Melanson when he interviewed them described conduct that constituted the offense charged and he applied his long experience as a police officer in determining that they were credible witnesses. Furthermore, the fact that the same statements were presented to a neutral magistrate who, in turn, concluded that they justified the issuance of an arrest warrant, strengthens their position.
The plaintiff responds that, at the time the decision to seek a warrant was made, the facts supporting the arrest had not yet been developed. She points to the fact that the investigation into the incident continued after the decision was made to arrest her and concludes that the decision was made without regard to the facts of the incident in question. She implicitly denies the defendants’ argument that the existence of the warrant disposes of the inquiry into probable cause.
Each party makes valid points. If probable cause existed at the time of the arrest, Hilchey’s constitutional rights were not violated,
see Roche,
and her entire case must be dismissed. However, the inquiry into whether probable cause existed does not turn primarily upon the issuance of the warrant, nor does such an issuance by a neutral magistrate conclusively demonstrate that probable cause existed to support it.
Malley v. Briggs,
475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Furthermore, provided that Hilchey has alleged a violation of a constitutional right (as she clearly has in charging that she was arrested without probable cause,
Beck v. Ohio,
379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)) the officers are entitled at most to qualified immunity for their actions. The qualified immunity test is designed to strike the proper balance between protecting plaintiffs’ rights and “avoid[ing] excessive disruption of government”.
Malley,
475 U.S. at 341, 106 S.Ct. 1092. Finally, qualified immunity protects only individual defendants and not the City as a municipal defendant.
Owen v. City of Independence,
445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).
The question of whether probable cause existed, if it is to be answered directly, is a question of fact for the jury.
Woodley v. Town of Nantucket,
645 F.Supp. 1365, 1370 (D.Mass.1986). That is, if (1) qualified immunity does not shield all defendants from suit and (2) genuine issues of fact remain that call into question whether probable cause was present, those facts must be resolved at trial. Before asking the second question, however, the issue of qualified immunity must be addressed.
D. Qualified Immunity
1. The Standard
The Supreme Court and the First Circuit Court of Appeals have set forth a preferred procedure for the analysis of qualified immunity in § 1983 claims. First, the Court must decide whether the plaintiff has “alleged the deprivation of an actual constitutional right.”
Abreu-Guzman v. Ford,
241 F.3d 69, 73 (1st Cir.2001)
(citing Wilson v. Layne,
526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). Second, the Court must determine whether the right was “clearly established at the time of the alleged violation”.
Abrew-Guzman,
241 F.3d at 73. Finally, if those two questions are answered in the affirmative, the Court turns its attention to the specific conduct alleged and decides
whether an objectively reasonable officer, performing discretionary functions, would have understood that his or her conduct violated that clearly established constitutional right.
Id. (citing Harlow v. Fitzgerald,
457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
In this case, as in
Abreu-Guzman,
the first two questions may be disposed of quickly. The central allegation of Hil-chey’s complaint is that she was arrested without probable cause. If proven, that would constitute a perfectly clear violation of the Fourth Amendment, established at least since the Supreme Court’s holding over 40 years ago in
Beck v. Ohio,
379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The Complaint also alleges violations of the First and Fourteenth Amendments in the same incident but the Fourth Amendment claim is the central allegation and the sole focus of the parties’ submissions with regard to summary judgment.
2. The Specific Conduct
Turning to the specific conduct at issue, the first point to emphasize is that our inquiry is an objective one. The subjective beliefs of the individual defendants, from Officer Melanson to Mayor Guerin, are “simply irrelevant”.
Crawfordr-El v. Britton,
523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). Provided that “the presence of probable cause is at least arguable”, it is objectively reasonable for officers to seek an arrest warrant.
Abreu-Guzman,
241 F.3d at 73.
The burden of proof for this inquiry is somewhat confusing. Because the Court is evaluating a motion for summary judgment the underlying facts must be viewed in the light most favorable to the non-moving party. When the undisputed facts are identified, however, the question becomes whether probable cause is “at least arguable”, a standard much more congenial to the defendants.
Hilchey does not contest the following brief summary of the facts. Shortly after the alleged incident on the morning of September 7, 2002, the police were called to Pear Tree Lane in Haverhill, Massachusetts. Officer Melanson responded to that call and interviewed the three children who alleged that Hilchey had driven her car “at” them. That afternoon, after the children had given written statements at the police station, the police applied to the Haverhill District Court for a warrant for
Hilchey’s arrest and the warrant was issued.
3. Hilchey’s Allegations
In her opposition to the defendants’ motion for summary judgment Hilchey asserts several facts that she alleges preclude summary judgment. Each will be discussed in turn.
i.Timing of the Charge
Hilchey alleges first that the decision to file charges was made before the supporting facts were developed. Officer Melan-son first spoke with the children during the morning of September 7, 2002, and then took written statements from them in the afternoon. Hilchey alleges that the decision to file charges was made in the morning by Melanson’s superiors. Because the written statements were taken only after the decision to charge Hilchey, she alleges that the record was incomplete and therefore that probable cause did not exist. She alleges further that the continued investigation was “an attempt to spin, fabricate, or select information” for the warrant application.
The attribution of motives is irrelevant to the defense of qualified immunity.
Crawford-El, 523
U.S. at 588, 118 S.Ct. 1584. This Court need not concern itself with what mental processes underlay the decision to seek a warrant for Hilchey’s arrest. The question before us is simply whether there was probable cause to believe that Hilchey had committed a crime at the time the police sought a warrant for her arrest. Even granting that the decision to apply for the warrant was made before the written witness statements were taken, it is “at least arguable” that Melanson’s credence in the children’s oral statements (made in the morning), and his superiors’ trust in his judgment, was reasonable and supplied the necessary probable cause.
ii. Who Made the Decision
Hilchey alleges that the decision to seek the warrant was made not by Melanson but by his superiors and not based on any objective analysis of the facts of the incident but as a pattern of harassment against her and her husband. Those allegations, even if substantiated, are irrelevant to the objective determination, for qualified immunity purposes of whether probable cause existed to support the application for a warrant for Hilchey’s arrest. As noted above,
a defense of qualified immunity may not be rebutted by evidence that the defendant’s conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant’s subjective intent is simply irrelevant to the defense.
Crawford-El, 523
U.S. at 588, 118 S.Ct. 1584. Therefore, even if all of Hilchey’s allegations of improper motive and personal vendetta of multiple members of the Haverhill Police Department are true, they do not rebut the defense of qualified immunity. The qualified immunity inquiry is limited to the objective facts determinative of probable cause.
iii. Inadequate Investigation
It is instructive to review the final paragraph of the section in the plaintiffs opposition discussing facts left in dispute by the summary judgment record. She asserts that a jury could conclude that
(i) the decision to charge Ms. Hilchey was not made on the basis of the “investigation”; (ii) Officer Melanson was under orders to do what he did; (iii) the investigation into the incident of September 7, 2002 was of secondary importance to the decision to arrest Ms. Hil-chey; (iv) the
presence of an objectively-determined basis for probable cause
had little or nothing to do with that; so (v) inconsistencies in the information pre
sented in the course of the investigation were irrelevant, (emphasis added).
Even if a reasonable jury were to reach all of those conclusions, none but the underlined clause is relevant to the determination of qualified immunity. Whatever shortcomings Hilchey perceives in the investigation carried out by Melanson (principally his failure to interview the only adult witness to the alleged incident or to attend to inconsistencies among the children’s statements) they have nothing to do with the objective presence or absence of probable cause arising out of the evidence in his possession. Contrary to Hilchey’s allegation that the existence of probable cause was irrelevant to the defendants’ decision to charge her, it is the only question before this Court at this time.
4. Intent
Hilchey’s opposition, in addition to asserting that the defendants charged her for improper reasons, argues that there was no probable cause to believe that she intended to cause bodily harm or apprehension in the children, an essential element of the crime of assault. The children stated that her conduct did, in fact, cause them apprehension and described her conduct as driving within one foot of them at high speed. A reasonable police officer could conclude, based on that evidence, that there was probable cause to believe that the requisite intent existed.
The plaintiff emphasizes the youth of the alleged victims and the history of chronic disputes in the neighborhood which she characterizes as evidence that the children were lying. A reasonable officer could view the history of rancor in particular as lending credibility to the allegation of an assault, however. Because the test for qualified immunity is so forgiving (whether probable cause was “at least arguable”,
Abreu-Guzman,
241 F.3d at 73), the plaintiffs legal argument fails.
5. Conclusion
The plaintiffs opposition to the defendants’ assertion of qualified immunity rests almost entirely upon allegations of malice. As noted above, such allegations, although they may be relevant to a plaintiffs case in chief, and notwithstanding the fact that in ruling on the defendants’ motion for summary judgment the Court resolves all factual disputes in Hilchey’s favor, do not serve to rebut an affirmative defense of qualified immunity.
Crawford-El,
523 U.S at 588, 118 S.Ct. 1584. Regardless of Hil-chey’s theory of what truly motivated the decision to arrest her, this Court, in evaluating a defense of qualified immunity, must confine its attention to the objective facts of the incident.
Id.
Even viewed in the light most favorable to the plaintiff, those facts would lead a reasonable officer to believe that probable cause existed. Hilchey’s legal argument, that there was no evidence of intent, is unpersuasive. Therefore, the individual defendants are entitled to qualified immunity and their motion for summary judgment on those grounds will be allowed.
E. Municipal Liability
1. Legal Standard
A municipality may be held liable in a § 1983 suit for the actions of its employees only if those actions were carried out pursuant to “official policy” or “custom”.
Monell v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A single decision made by an official wielding sufficient authority may, under certain circumstances, constitute such a policy and subject the city to liability.
Pembaur v. City of Cincinnati,
475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).
The plaintiff has, in support of her motion to compel discovery of other legal actions brought against the City, referred
to a recent decision of the First Circuit Court of Appeals indicating that a single incident may not prove municipal policy,
Whitfield v. Melendez-Rivera,
431 F.3d 1, 12 (1st Cir.2005) (citing
Fabiano v. Hopkins,
352 F.3d 447, 452). In her effort to obtain further discovery, the plaintiff has, however, ironically, raised the bar of her burden of proof higher than need be because the cases she cites hold only that
absent any other evidence of policy,
a single incident
of misconduct by a subordinate employee
cannot provide the basis for municipal liability. Because Hilchey alleges that the policy was made by authoritative officials in the City and Police Department that holding does not apply to the facts of this case.
Where the policy itself does not violate federal law but gives rise to subsequent conduct of subordinate employees which violates the plaintiffs rights, the analysis becomes somewhat more difficult.
Board of County Comm’rs of Bryan County v. Brown,
520 U.S. 397, 406, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997);
City of Canton v. Harris, 489
U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In such instances the municipality may be liable only if the policy maker was at least deliberately indifferent to the possibility that the policy in question would lead to a deprivation of federally-protected rights.
Before proceeding to apply these standards to the present case, this Court observes that the burden of proof at this stage is different from that applied above in determining qualified immunity for individual defendants. In the preceding section the individual defendants were found to be entitled to qualified immunity because the existence of probable cause to arrest Hilchey was “at least arguable”. The municipal defendant enjoys no such forgiving standard and the ordinary summary judgment standard of construing all evidence in the light most favorable to the non-moving party compels a different review.
Owen v. City of Independence,
445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).
As a matter of general practice (i.e. outside of the realm of qualified immunity), the question of whether probable cause existed is a matter for a factfinder to determine.
Woodley v. Town of Nantucket,
645 F.Supp. 1365, 1370 (D.Mass.1986). On the merits of the probable cause question Hilchey’s evidence, although equivocal, is sufficient to survive a motion for summary judgment. Therefore, for purposes of municipal liability, Hilchey has alleged a deprivation of her constitutional rights and the only remaining question is whether such a violation may be attributed to the municipality.
2. Application
a. The Alleged Policy
Hilchey characterizes the official policy of the Haverhill Police Department as “to credit the statements of the neighbors and to minimize the significance of Ms. Hilchey’s statements”. She substantiates this characterization by reciting her history of interactions with city officials, including 1) her letter of complaint to May- or Guerin which was apparently received the day before the incident alleged in this case and 2) her husband’s suspension from the Police Department by Police Chief Bright.
Policy-making authority is a question of state law. Because both parties have assumed that at least Mayor Guerin and probably Police Chief Brighi have exercised such authority, this Court will not second guess that assumption.
See Bryan County,
520 U.S. at 408, 117 S.Ct. 1382. That means that any decision made by them, however different in character it may appear from ordinary matters
of municipal policy, may, for § 1983 purposes, be attributed to the municipality and give rise to municipal liability.
The policy that they are alleged to have adopted, however, i.e. ignoring Hilchey’s point of view in every neighborhood dispute, does not in itself rise to the level of a violation of state or federal civil rights. The only specific violation that plaintiff has alleged is her arrest which she contends was executed in the absence of probable cause.
See Beck v. Ohio,
379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
In order to establish municipal liability, Hilchey must demonstrate that the policy that may be attributed to the City (the practice of taking her neighbors’ side in every dispute) was the cause of her constitutional violation. The language used by the Supreme Court to give more detailed guidance in making that determination is, unfortunately, case-specific. In
Canton v. Hams
the issue was a failure to train and the Court spoke of “deliberate indifference to the rights of persons with whom the police come into contact”. 489 U.S. at 388, 109 S.Ct. 1197. In
Bryan County,
in the context of failure to screen applicants, the Court further limited liability to instances in which
“this
officer was highly likely to inflict the
particular
injury suffered by the plaintiff’. 520 U.S. at 412, 117 S.Ct. 1382.
Neither of the cited opinions fits precisely into a municipal policy of condoning animus towards a particular individual or family, as Hilchey has alleged.
Bryan County
is instructive, however, for its emphasis on the risk of a specific, foreseeable injury. Applying that principle to this ease, if Hilchey can demonstrate that the police pursued the described policy (reflexively crediting the reports of neighbors with whom she is known to have longstanding conflict), there was a specific, foreseeable risk that she might be arrested without probable cause. Therefore, Hil-chey’s allegations are legally sufficient to support a claim of municipal liability under § 1983 and the City’s motion for summary judgment depends upon the sufficiency of her evidence.
b. The Evidence of Official Policy
The plaintiff offers three items of evidence that an official policy existed with respect to her and her husband:
1) She refers first to the deposition of Officer Melanson, the principal officer involved in her case. When asked what led to the decision to seek an arrest warrant, he gestured to the long list of prior incidents involving Hilchey and her neighbors and said
by the time I got [the call from Mrs. Monigle] all this stuff [indicating the prior record] had happened. I’m sure everything was — It was time to do something.
That testimony, combined with the long history of disputes between Hilchey and her neighbors to which Melanson refers, supports the allegation that Hilchey had acquired a reputation within the police department as a troublemaker and that the department, as a unit, was generally receptive to claims brought against her.
2) With respect to how far up the chain of command that official reaction extended and to whether it could be fairly attributed to the municipality
(see Pembaur,
475 U.S. at 480, 106 S.Ct. 1292) Hilchey relies on a) Melanson’s deposition testimony that he was directed to seek the complaint by his superiors, b) a supplemental police report of the incident describing a meeting among several superiors and c) her prior history with the police department and the Mayor.
3) Hilchey points out that her neighbors had complained to the police about her conduct (her driving habits in particular) on several prior occasions. In September, 2001, over 20 neighbors, including the parents of the children involved in this case, submitted a letter to Police Chief Brighi, in response to which he met with them (but apparently not Hilchey) to discuss their issues. That meeting resulted in the posting of new signs in their neighborhood, including one saying “SLOW — CHILDREN” and another equipped with a radar device that displays the speed of oncoming vehicles. Following that meeting, Hilchey reported several instances of vandalism on her property and was allegedly treated rudely by the police officers who responded. Hilchey made a written complaint to Mayor Guerin and the return-receipt on her letter indicates that it was received by City officials the day before the incident alleged in this case.
Of course, the incidents described above include no direct evidence of a policy targeting the Hilcheys. They do, however, offer enough context and circumstantial evidence to support the conclusion that an alleged anti-Hilchey policy extended up to a senior official (whether Mayor Guerin or Police Chief Brighi) who had authority sufficient to attribute his actions to the City.
III.
Matters Remaining for Trial
At the pretrial conference on January 30, 2008, the parties requested clarification with respect to what issues have been decided and what remain for trial in light of the disposition of this motion. At trial the plaintiff retains the burden of proving a violation of her constitutional rights in order to be entitled to any recovery, i.e., she must prove that she was arrested without probable cause. The dismissal of the individual defendants from this case on qualified immunity grounds does
not
determine that there was (or was not) such probable cause; this Court holds only that probable cause was “at least arguable”. If the plaintiff fails to prove that there was no probable cause to arrest her, her entire action must fail.
Furthermore, Hilchey must prove that the City had adopted an official policy or custom (whether it was a specific vendetta against her and her husband or a more general practice of condoning such vendettas) that was likely to produce a civil rights violation of the kind alleged and that the City was, at least, deliberately indifferent to such likelihood. Only if plaintiff proves an actual violation of her constitutional rights and that the violation arose from a policy that may fairly be attributed to the City can she prevail. ORDER
Because 1) the individual defendants are entitled to qualified immunity but 2) there remain genuine issues of material fact with respect to municipal liability, the defendants’ motion for summary judgment (Docket No. 41) is, with respect to the § 1983 claim against the City of Haverhill, DENIED, but is otherwise ALLOWED.
So ordered.