Johnson et a l . v . Collins et a l . CV-02-531-B 01/23/04
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Johnson, et. a l .
v. Civil No. 02-531-B Opinion No. 2004 DNH 024 Rodney C . Collins, et. a l .
MEMORANDUM AND ORDER
Richard and Maria Johnson and their son, Andrew, have sued
Newmarket Police Chief Rodney C . Collins and the Town of
Newmarket under 42 U.S.C. § 1983 and various state laws. The
Johnsons claim that Collins improperly obtained and executed a
warrant to seize Andrew Johnson’s computers, arrested Johnson
without probable cause for allegedly making a bomb threat and
defamed him and his parents by conducting a “public campaign” of
false accusations that led to Johnson’s expulsion from school.
The defendants seek summary judgment.
I. BACKGROUND A. The Search
On September 2 4 , 2001, Collins received a tip from Fremont
Police Chief, Neal Janvrin, that Johnson and another student, Dan
Gray, had bragged about using Johnson’s computer to “hack” into
classified files maintained by the Federal Bureau of
Investigation (“FBI”). Collins used Janvrin’s information to
obtain a warrant to seize Johnson’s computer.
The affidavit that Collins submitted with his warrant
application states that Janvrin obtained his information from an
unnamed informant. The informant told Janvrin that Johnson had
bragged about viewing confidential “FBI profiles” and that he and
a friend, Dan Gray, had gained access to the profiles by using
Johnson’s computer to “hack” into FBI files. The informant
claimed that Johnson had used a MacIntosh computer and had
drilled a hole in the floor of his bedroom so that he could gain
access to a telephone line. The informant also gave street
addresses for Johnson and Gray and claimed that Johnson’s father
was a member of the Newmarket School Board. Janvrin told Collins
-2- that the informant was “a very ‘reliable and credible person’ who
he is personally familiar with.” (Defs.’ Mem. Supp. Summ. J. Ex.
D). He also claimed that the informant had “no ax to grind.”
(Id.)
Collins determined that the informant had provided correct
street addresses for Johnson and Gray and had correctly claimed
that Johnson’s father was a member of the Newmarket school board.
Collins also verified through a Newmarket school official that
Johnson was “extremely intelligent and computer literate.” (Id.)
Collins executed the search warrant on September 2 5 , 2001.
Three computers and several computer-related items were seized.
The seized items were examined by the FBI but no charges were
brought against Johnson for hacking into FBI files.
B. The Bomb Threat
On February 7 , 2002, a bomb threat was found by a teacher at
the Newmarket Junior-Senior High School where Andrew was then a
student. Although the police received an anonymous letter
suggesting that Johnson was somehow involved, he was not
interviewed by the police.
-3- School officials discovered a second bomb threat on the
morning of March 8 , 2003. The threat, written on a science room
chalkboard, read, “This one’s for real. There is a bomb that
will explode between 9:00 a.m. and 1:00 p.m. Have a nice life.”
(Defs.’ Mem. Supp. Summ. J. Ex. K ) . The room where the threat
was found had been vandalized. Several computer and television
wires had been cut, the fire alarm had been destroyed, and the
teacher call-box had been pulled off the wall.
Joe Flaherty, a teacher, told a Newmarket police officer
that he had seen Johnson wandering the hallways twice in the late
afternoon of March 7 , 2002. The school principal, Deborah
Brooks, also stated that she had seen Johnson leave the school
that day around 4:30 p.m. Sean Alperin, a student, stated that
he had observed Johnson and Gray near the science room after
school on March 7 , 2002. Alperin told police that when he asked
them what they were doing, Gray stated, “we did something pretty
funny but we won’t say because we could get into trouble.” (Id.)
Gray told police that Johnson had gone into the science room
around 3:15 p.m. and told him to make sure no one came i n . Gray
stated that he had observed Johnson cut some computer wires with
-4- scissors and then write something on the chalkboard. Gray
further stated that he could not see what Johnson had written but
he did observe Johnson walk away from the chalkboard wiping chalk
dust off his hands. During a subsequent interview, Gray added
that Johnson had admitted writing the threat.
On March 1 4 , 2002, the Newmarket police received an
anonymous tip that Johnson was involved in the March 7th bomb
threat. That same day Collins obtained Johnson’s fingerprints by
warrant. Five of six latent fingerprints taken from the
chalkboard failed to match Johnson’s prints; the sixth impression
was inconclusive. Collins did not seek fingerprint impressions
from anyone else.
On April 2 8 , 2002, Collins submitted a sworn affidavit
seeking an arrest warrant for Johnson. The affidavit summarized
the facts surrounding both bomb threats and the police interviews
of Johnson, Gray, and Alperin, but did not include the results of
the fingerprint analysis. The judge issued the warrant and
Johnson was arrested at school on April 2 9 , 2002, for criminal
mischief and for falsely reporting a bomb threat. Johnson was
later convicted of vandalizing school equipment. The court
-5- dismissed the charge involving the bomb threat.
C. The Expulsion
Johnson was suspended for 20 days following his arrest and
on June 4 , 2002, the Newmarket School Board voted to expel
Johnson for the balance of the school year for “gross
misconduct.” (Pls.’ Compl. ¶ 9 0 ) . After the charge involving
the bomb threat was dismissed, Superintendent Denis Joy allowed
Johnson to conditionally return to school on August 2 8 , 2002.
One condition was that Johnson would be expelled if he committed
any offense calling for suspension from school. On October 4 ,
2002, Johnson violated a computer-use policy which called for a
one-day suspension, and Joy summarily expelled Johnson from
school.
On August 1 7 , 2002, Johnson’s parents asked the school board
to reverse the June 4 , 2002 expulsion order. Collins sent a
rebuttal letter to Joy, in which he referred to Johnson as “a
safety threat”, “their lying son, Andrew” and “a calculating
liar.” (Defs.’ Mem. Supp. Summ. J. Ex. F ) . In August and
September 2002, Collins also gave interviews and wrote guest
columns for local news publications. In these publications,
-6- Collins referred to Johnson (although not by name) as a safety
threat to the school, and publicly advocated against Johnson’s
reinstatement. The Johnsons allege that Joy expelled Johnson
based on a public campaign by Collins to defame them and to keep
Johnson out of Newmarket Junior-Senior High School.
I I . STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A trial is only necessary if there is a genuine factual
issue “that properly can be resolved only by a finder of fact
because [it] may reasonably be resolved in favor of either
party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250
(1986). A material fact is one that affects the outcome of the
suit. See id. at 248.
In ruling on a motion for summary judgment, I must construe
the evidence in the light most favorable to the non-movant. See
-7- Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The
party moving for summary judgment, however, “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323
(1986). Once the moving party has properly supported its motion,
the burden shifts to the non-moving party to “produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for i t ; if that party cannot produce
such evidence, the motion must be granted.” Ayala-Gerena v .
Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996)
(citation omitted). Neither conclusory allegations, improbable
inferences, or unsupported speculation are sufficient to defeat
summary judgment. See Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-
37 (1st Cir. 2002).
III. DISCUSSION
A. Federal Claims - Collins
1. The qualified immunity standard
Collins claims that he is entitled to qualified immunity
-8- with respect to plaintiffs’ federal claims.
“The doctrine of qualified immunity protects ‘government
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mutter v . Town of Salem,
945 F. Supp. 4 0 2 , 405 (D.N.H. 1996) (quoting Harlow v .
Fitzgerald, 457 U.S. 8 0 0 , 818 (1982)). A two-part inquiry is
used to determine whether an officer is entitled to qualified
immunity. First, I consider whether the facts alleged, taken in
the light most favorable to the party asserting the injury,
demonstrate that the officer’s conduct violated a constitutional
right. Santana v . Calderon, 342 F.3d 1 8 , 23 (1st Cir. 2003)
(quoting Saucier v . Katz, 533 U.S. 1 9 4 , 201 (2001)). If a
constitutional violation is established, I then determine whether
“the contours of this right are ‘clearly established’ under then-
existing law so that a reasonable officer would have known that
his conduct was unlawful.” Id. (quoting Dwan v . City of Boston,
329 F.3d 275, 279 (1st Cir. 2003). If the law would not have put
a reasonable officer on notice that his or her conduct was
-9- unlawful, summary judgment based upon qualified immunity is
appropriate. See Kelley v . Laforce, 288 F.3d 1 , 6 (1st Cir.
2002); See also Malley v . Briggs, 475 U.S. 335, 341 (1986)
(qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law”).
2. Search Warrant Claim
The Johnsons contend that the warrant Collins obtained to
seize Johnson’s computer was not supported by probable cause.
They further argue that Collins is not entitled to qualified
immunity with respect to this claim because a reasonable police
officer in Collins’s position would have understood that the
warrant had been improperly issued.
When ruling on the sufficiency of a search warrant
application, the court must consider the “totality of the
circumstances” described in the supporting affidavit. United
States v . Beckett, 321 F.3d 2 6 , 31 (1st Cir. 2003). Deference
should be given to reasonable inferences that the issuing judge
could have drawn from the affidavit. See id. Among the factors
that a reviewing court will consider in determining whether
information supplied by an unnamed informant is sufficient to
-10- support a probable cause determination are:
[w]hether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self- authenticating; whether some or all of the informant’s factual statements were corroborated wherever reasonable and practicable . . . ; and whether a law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant based on experience or expertise.
United States v . Barnard, 299 F.3d 9 0 , 93 (1st Cir. 2002)
(quoting United States v . Khounsavanh, 113 F.3d 279, 284 (1st
Cir. 1997)).
Collins relied primarily on information supplied by
Janvrin’s informant to support the issuance of the warrant. This
reliance was misplaced, however, because the judge who issued the
warrant could not determine from the application whether the
informant’s information was based on first-hand knowledge or mere
rumor. This deficiency is fundamental and cannot be overcome by
the other information on which Collins relied.
Although Collins cited Janvrin’s opinion that the informant
was highly reliable, his affidavit fails to identify any evidence
of past reliability against which the opinion could be tested.
As the First Circuit recently remarked in this regard, “[a] mere
-11- assertion of reliability without any information regarding the
basis for the officer’s belief, such as past tips leading to
arrests, is entitled to only ‘slight weight.’” Barnard, 299 F.3d
at 93 (citing to Khounsavanh, 113 F.3d at 2 8 6 ) . Such
unsubstantiated assertions of reliability are even less useful in
a case like this where the application does not explain how the
informant acquired her information.
Collins’s attempt to corroborate the informant’s claims also
fails to bolster the informant’s reliability because he was only
able to corroborate innocent details. See Khounsavanh, 113 F.3d
at 284 (corroboration of innocent details “do not demonstrate
that the informant has a legitimate basis for knowing about the
defendant’s allegedly criminal activity”). Since the application
fails to point to any other evidence to support Collins’s claim
that Johnson’s computers contained evidence of illegal activity,
it failed to establish probable cause to justify the issuance of
the warrant.
The Johnsons cannot prevail, however, merely by establishing
that the warrant was not supported by probable cause. Under
well-established precedent, Collins will be entitled to immunity
-12- unless “the warrant application is so lacking in indicia of
probable cause as to render official belief in its existence
unreasonable.” Rodrigues v . Furtado, 950 F.2d 805, 812 (1st Cir.
1991) (citing Malley v . Briggs, 475 U.S. 335, 341 (1986)).
The Johnsons cannot meet this difficult standard because the
affidavit contains enough incriminating information to permit a
reasonable police officer to mistakenly conclude that the issuing
judge acted properly in issuing the warrant. While I have
determined that Janvrin’s opinions concerning the informant’s
reliability and Collins’s successful corroboration of several of
the informant’s assertions were not sufficient to establish the
informant’s reliability, I cannot say that a reasonable officer
necessarily would have identified these deficiencies. When an
impartial judge decides that a warrant application is supported
by probable cause, and the affidavit submitted with the
application alleges facts that provide a plausible basis for the
issuance of the warrant, an officer who mistakenly relies on the
issuing judge’s probable cause determination cannot be held
personally liable for executing a defective warrant. This is the
case here.
-13- 3. Unlawful Arrest Claim
The Johnsons argue that Collins is liable for Johnson’s
illegal arrest on the bomb threat charge because he failed to
inform the judge who issued the arrest warrant that fingerprint
impressions taken from the chalkboard on which the bomb threat
had been written did not match Johnson’s fingerprints. When a
police officer leaves relevant material out of an affidavit in
support of an arrest warrant, the court must determine whether
there remains “‘sufficient content in the warrant affidavit to
support a finding of probable cause.’” Mutter v . Town of Salem,
945 F. Supp. 4 0 2 , 407 (D.N.H. 1996) (quoting Franks v . Delaware,
438 U.S. 1 5 4 , 171-72 (1978)).
Although Collins should have referenced the fingerprint
report in his application for the arrest warrant, his omission
does not undermine the other evidence contained in the affidavit
which was more than sufficient to support a finding of probable
cause. See Mutter, 945 F. Supp. at 407. In seeking an arrest
warrant, Collins relied on (1) the anonymous letter indicating
that Johnson had been involved in the February 7th bomb threat;
(2) statements of a teacher, the principal, and two students that
-14- Johnson had been near the room where the March 7th threat was
found; (3) an anonymous tip indicating that Johnson had been
involved in the second bomb threat; and (4) Gray’s statements
that he had observed Johnson in the science room on March 7 , 2002
cutting several computer and televison wires with scissors, that
he had observed Johnson pick up a piece of chalk and write
something on the board and then walk away from the board, wiping
chalk dust off his hands, and that Johnson had admitted writing
the bomb threat.
Even if Collins had provided the results of the fingerprint
analysis to the issuing judge, the facts stated above would have
created sufficient probable cause to support the arrest warrant.
Because the arrest warrant was supported by probable cause,
Collins did not violate Johnson’s constitutional rights by
arresting him on the bomb threat charge. Collins is therefore
entitled to qualified immunity on the unlawful arrest claim. See
Santana v . Calderon, 342 F.3d 1 8 , 23 (1st Cir. 2003).
4. Constitutional Defamation Claim
The Johnsons claim that Collins violated their rights under
the Fifth and Fourteenth Amendments by embarking on a public
-15- campaign to malign the Johnson family and prevent Johnson from
attending school. I understand them to be asserting a
constitutional claim for defamation.
The United States Supreme Court has held that a government
official’s defamatory statements are not sufficient, standing
alone, to support a constitutional claim. See Paul v . Davis, 424
U.S. 693, 701-02 (1976). In response, the lower federal courts
have developed a “stigma plus” test to evaluate such claims.
See, e.g., Hawkins v . R.I. Lottery Comm’n, 238 F.3d 1 1 2 , 115 (1st
Cir. 2001). Under this test, the defamation must be coupled with
the loss of an important benefit such as government employment.
See id. Moreover, to be liable on a stigma plus claim, the
defendant must be responsible for both the defamation and loss of
the government benefit. See id. at 116 (rejecting claim against
governor because he did not participate in employment termination
decision). Johnson cannot satisfy this requirement because
Collins did not participate in the school board’s decision to
expel Johnson. Accordingly, Collins is entitled to qualified
immunity with respect to the constitutional defamation claim.
-16- B. Federal Claims - Newmarket
The Johnsons seek to hold Newmarket liable for Johnson’s
allegedly unconstitutional conduct.
In order to state a § 1983 claim against a municipality or a
municipal subdivision, a plaintiff must allege that: (1) a
municipal policymaker intentionally adopted a policy, implemented
a training protocol, or allowed a custom to develop; (2) the
challenged policy, training protocol or custom caused a violation
of the plaintiff’s constitutional rights; and (3) the policymaker
acted either with deliberate indifference or willful blindness to
the strong likelihood that unconstitutional conduct will result
from the implementation of the policy, training protocol or
custom. City of Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989);
Maldonado-Denis v . Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.
1994); Manarite v . Springfield, 957 F.2d 953, 958 (1st Cir.
1992).
I have determined that Collins did not violate Johnson’s
constitutional rights when he arrested him on the bomb threat
charge and when he allegedly defamed him. Accordingly,
plaintiffs’ attempts to hold Newmarket liable for the same
-17- alleged misconduct necessarily fail. See Evans v . Avery, 100
F.3d 1033, 1040 (1st Cir. 1996). This leaves only plaintiffs’
claim that Newmarket is liable for Collins’ illegal seizure of
Johnson’s computers.
In certain circumstances, a municipality may be subject to
liability for a single unconstitutional act by a municipal
policymaker. See Kelley, 288 F.3d at 9. The municipality will
be liable, however, only when the “decisionmaker possesses final
authority to establish municipal policy with respect to the
action . . . .” Id. (quoting Pembaur v . City of Cincinnati, 475
U.S. 469, 481 (1986) (plurality opinion). Collins has admitted
that he is a municipal policymaker with respect to all law
enforcement issues, including decisions to apply for and execute
search warrants, and it does not appear that Newmarket can
credibly dispute this point. Thus, it is not entitled to summary
judgment with respect to plaintiffs’ claim challenging the
seizure of Johnson’s computers because I have determined that the
seizure was unlawful.
C. State Law Claims
The Johnsons assert a variety of state law claims that are
-18- unrelated to the only federal claim that remains viable. Because
the parties are not diverse, I have jurisdiction over the state
law claims only to the extent that they are supplemental to the
remaining federal claim. See 28 U.S.C. § 1367. Because it
appears that the state law claims “substantially predominate[]
over the claim or claims over which the district court has
original jurisdiction,” 28 U.S.C. § 1367(c)(2), I propose to
sever the state law claims and dismiss them without prejudice so
that the Johnsons can litigate them in state court.
IV. CONCLUSION
I grant defendants’ motion for summary judgment with respect
t o : (1) plaintiffs’ federal claims against Collins in his
individual capacity; and (2) plaintiffs’ federal claims against
Newmarket for Johnson’s arrest and Collins’s alleged campaign of
defamation. I deny the motion with respect to plaintiffs’ claim
against Newmarket based on the illegal seizure of Johnson’s
computers. I propose to deny defendants’ motion for summary
judgment with respect to plaintiffs’ state law claims and dismiss
those claims without prejudice to both plaintiffs’ right to
-19- litigate them and defendants’ right to challenge them in state
court. Any party objecting to the proposed disposition of
plaintiffs’ state law claims shall file an objection and a
supporting memorandum on or before February 6, 2004.
SO ORDERED.
Paul Barbadoro Chief Judge
January 2 3 , 2004
cc: Paul McEachern, Esq. William G. Scott, Esq.
-20-