Lallemand v. Univ. of RI

• Court: Court of Appeals for the First Circuit
• Decided: November 22, 1993
• Docket: 92-2481
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2481

                                   DAVID LALLEMAND,

                                Plaintiff, Appellant,

                                          v.

                         UNIVERSITY OF RHODE ISLAND, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                           Boudin and Stahl, Circuit Judges,
                                             ______________

                             and Fuste,* District Judge.
                                         ______________

                                 ____________________

            Vincent A.  Indeglia with whom  Indeglia & McGovern  was on  brief
            ____________________            ___________________
        for appellant.
            Thomas M.  Elcock with whom David E. Maglio, Stephen P. Harten and
            _________________           _______________  _________________
        Morrison, Mahoney & Miller were on brief for appellees.
        __________________________

____________________

                                  November 22, 1993
                                 ____________________

____________________

        *Of the District of Puerto Rico, sitting by designation.

BOUDIN, Circuit Judge.   On Friday evening,  October 27,
                         _____________

            1990, Michelle Eckman,  a student at the  University of Rhode

            Island,  attended a fraternity  party at the  TKE fraternity.

            Very  early on  Saturday  morning,  Eckman  appeared  at  the

            university health  clinic.  She  reported that  she had  been

            raped at  the TKE  fraternity around  midnight by a  "pledge"

            named  "Dan" who was  about 6  feet tall  with feathered-back

            blond hair.  She said that other men had attempted to assault

            her.  She  repeated her charge, in interviews  or in writing,

            during the next several hours.  

                 At around 8 a.m. on  Saturday morning, October 28, 1990,

            Lieutenant   James   McDonald   of   the  university   police

            interviewed Eckman, obtained another description of the rape,

            and was told by Eckman  that her assailant wore a TKE  pledge

            pin.   Other officers  then obtained separate  photographs of

            all 21 TKE pledges and  McDonald brought Eckman to the police

            station to view the numbered photographs.  In the presence of

            McDonald and  another officer, Eckman  positively and without

            hesitation  identified David  Lallemand as  the  man who  had

            raped  her.1   Based  on  this  photographic  identification,

____________________

                 1Lallemand is about  6 feet 7 inches  tall, considerably
            above the 6 foot figure first mentioned by Eckman, and he did
            not  have feathered  back blond  hair.   On  the other  hand,
            Eckman told McDonald that her assailant was much  taller than
            another  police  officer,  who stood  slightly  over  6 feet.
            Eckman  also initially said that  Dan lived in her dormitory,
            which is not true of  Lallemand, but later indicated that she
            had merely seen him there.

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McDonald  secured a warrant from a state district court judge

            and arrested Lallemand on October 30, 1990.  

                 On November 3,  1990, Eckman was interviewed  once again

            by McDonald and an officer  of the Rhode Island state police.

            During   this  interview  Eckman  said  that  she  remembered

            Lallemand fondling her  when she entered  the room where  the

            rape took place; but she said that she no longer could recall

            the  rape itself  and  could not  identify  Lallemand as  the

            rapist.  Her explanation was that  her memory was suppressing

            the rape.   At  Lallemand's bail hearing on November 7, 1990,

            Eckman was unable to identify  Lallemand as the man who raped

            her, and  charges against him  were dismissed.  A  grand jury

            investigated but returned no indictment.

                  Lallemand then filed  a civil complaint in  the present

            case  charging McDonald, the university and its president and

            others with  violations of 42  U.S.C.   1983.   The complaint

            also  made claims  under state  law  but they  have not  been

            pursued on this  appeal.   Although the  section 1983  claims

            went  beyond  false arrest,  that  is  the  only charge  that

            Lallemand has argued in his brief.  The essence of the charge

            is  that  McDonald  conducted  an  inadequate  investigation,

            ignored  exculpatory information, and did not disclose all of

            the evidence to the state judge who issued the warrant.

                 Following discovery in this case, McDonald and the other

            defendants  moved for  summary judgment  on  the ground  that

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McDonald's  conduct was protected by qualified immunity.  The

            magistrate  judge  recommended that  the  motion  be granted,

            concluding  that  at the  time  of the  arrest,  McDonald had

            probable  cause to believe  that Lallemand had  committed the

            offense.  The possibility that McDonald might have  done more

            investigating,  said  the  magistrate judge,  did  not create

            liability under section 1983.  The district court adopted the

            report of the magistrate judge  and dismissed the case.  This

            appeal followed.

                 On this  appeal,  our review  on  the grant  of  summary

            judgment is plenary, Hoffman v. Reali, 973 F.2d 980, 984 (1st
                                 _______    _____

            Cir. 1992),  and we assume that genuinely  disputed facts and

            credibility issues  would be  resolved in appellant's  favor.

            Prokey  v.  Watkins,  942  F.2d  67,  72  (1st   Cir.  1990).
            ______      _______

            Qualified immunity is  available if the officer's  action was

            objectively  reasonable even if  later found to  be mistaken.

            Pierson  v.  Ray,  386 U.S.  547,  555-57  (1967);  Harlow v.
            _______      ___                                    ______

            Fitzgerald,  457 U.S.  800, 818  (1982).   In a  false arrest
            __________

            case,  the question normally is whether the arresting officer

            could  reasonably  believe  that the  information  he  or she

            possessed  constituted probable cause.  Hunter v. Bryant, 112
                                                    ______    ______

            S. Ct. 534, 537 (1991).

                 We begin with the objective reasonableness of McDonald's

            conduct,  reserving  for the  moment  Lallemand's alternative

            argument that McDonald's  subjective good faith was  an issue

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for the jury.  McDonald's  broadest defense on appeal is that

            he  is insulated by the decision of  the state judge to issue

            an arrest  warrant.  We agree with  Lallemand that McDonald's

            reliance on United States v.  Leon, 468 U.S. 897, 928 (1984),
                        _____________     ____

            is misplaced.   Leon  does not  provide automatic  protection
                            ____

            when  the  warrant itself  was  issued  on  the basis  of  an

            affidavit claimed to  be recklessly false.  468  U.S. at 914.

            See  generally Rodriques  v. Furtado,  950 F.2d 805,  812 n.8
            ______________ _________     _______

            (1st  Cir.  1991).    Lallemand  claims  here  that  McDonald

            possessed information, undisclosed to the state  judge, which

            negated probable cause.

                 We think it plain that the information disclosed to  the

            state judge, if taken alone,  established probable cause.  In

            substance the  affidavit set  forth Eckman's  version of  the

            incident,  and followed  it  with  McDonald's description  of

            Eckman  selecting  Lallemand's  photograph from  the  picture

            array and  positively identifying  Lallemand as  the man  who

            raped her.   Although Eckman said  that the perpetrator  gave

            his  name as Dan, despite a few discrepancies in description,

            the  affidavit presented facts giving rise to probable cause;

            everything turns on  what McDonald knew at the  time but left

            out of the affidavit.

                 The  single  most important  "fact"  allegedly  known to

            McDonald but  not disclosed  in the  affidavit is that  other

            eyewitnesses had identified a different man, Michael Lindell,

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as the  person who--in  the words  of Lallemand's  brief--was

            "Eckman's attacker" and "the perpetrator."  We need not weigh

            the legal significance of such an omission in the  affidavit,

            because the supposed  "fact" is not supported  by the record.

            Rather, Lallemand's brief has misstated the record. 

                   What the record  indicates is that Michael  Brady, the

            head of the fraternity, told McDonald and other officers that

            Lindell should  be "checked  out," in  the  words of  Brady's

            later handwritten statement.  Although the statement does not

            explain  what Brady  told the  campus  police about  Lindell,

            Lallemand's brief offers  no record citation to  any evidence

            that anyone identified  Lindell as having raped  or attempted

            to rape Eckman.   Instead, there are  fragments of evidence--

            summaries  of  witness  interviews  apparently  conducted  by

            various police  officers--that suggest that Lindell  may have

            pulled off Eckman's clothes and attempted to  urinate on her.

Taking  the interviews at face value, one might conclude

            that Lindell, Lallemand  and possibly others had  been taking

            various liberties with Eckman, who by her own account had had

            a  good deal  to drink.   It  is very hard  to tell  from the

            record  when each  witness interview  occurred  and how  much

            McDonald  knew of these interviews when  he filed his arrest-

            warrant  affidavit.   But  even  if he  knew  everything just

            recited,  nothing  Lallemand  has pointed  to  in  the record

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suggests that Lindell  was identified by anyone as  a rapist.

            Further Eckman had specifically stated that the rapist wore a

            TKE pledge  pin; Lallemand was  a TKE pledge and  Lindell was

            not.  

                 Depending on what McDonald knew about Brady's suggestion

            that the  police "check out"  Lindell, it might or  might not

            have been good police practice to investigate Lindell further

            before  arresting Lallemand.    But  given Eckman's  positive

            identification  of  Lallemand, there  was  probable  cause to

            arrest him, and there would  have been probable cause even if

            the affidavit  had disclosed everything  just recounted about

            Lindell's possible  involvement.    See  generally  Krohn  v.
                                                ______________  _____

            United States, 742  F.2d 24,  31 (1st Cir.  1984).  What  the
            _____________

            witness  said about  Lindell  could  easily  have  been  true

            without  casting  any  doubt on  Eckman's  identification  of

            Lallemand.

                 It  may well be that McDonald  ought to have said in the

            affidavit submitted to the state  judge that Eckman had had a

            lot to  drink and  was probably drunk  that evening  (several

            witnesses,  including one  friendly to  Eckman,  so claimed).

            That a  rape victim was  drunk does not, of  course, remotely

            excuse the offense; still, the only direct witness was Eckman

            and her condition bore upon her credibility.  Once again full

            disclosure would not in any way have undercut probable cause.

            Eckman's  identification  was  positive,  and  there  is   no

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suggestion that she was incoherent or vague when she gave her

            statements to police or made the photographic identification.

            See Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987).
            ___ ____    ______

                 Two further  claims in Lallemand's  briefs require  less

            discussion.   First, contrary to  the brief,  nothing in  the

            record citations  shows that  McDonald knew  that Eckman  was

            unconscious  "during"  the   rape  and  so  could   not  have

            identified anyone; rather, there is some evidence that Eckman

            might have passed  out "sometime" during  the assault.   With

            this correction, the  passing out admission has  virtually no

            bearing  on  probable  cause.    There  is  nothing  remotely

            implausible about  seeing one's  attacker  and then  becoming

            unconscious.

                 Second, Lallemand's brief makes  a considerable point of

            the fact  that  McDonald  has admitted  that  he  now  doubts

            whether   a  rape  occurred,  a  doubt  based  on  McDonald's

            statement that  a "rape  kit" procedure  performed on  Eckman

            came back  "negative."   "Not withstanding  [sic] this  known

            fact," says Lallemand's brief, McDonald "still" filed charges

            against  Lallemand.   Lallemand's  point  is  without  merit.

            McDonald's  concession came long  after the arrest,  during a

            deposition in this  case, and there is no  indication that he

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knew  of  the negative  rape  kit  report  when he  made  the

            arrest.2

                 Even  less  need  be  said  about Lallemand's  remaining

            reasons for his claim that  McDonald lacked probable cause or

            filed  an  inadequate  arrest  warrant.    The  discrepancies

            concerning the  assailant's first name, hair style, dormitory

            and height are trivial, given  their nature and the  positive

            identification of Lallemand by  Eckman.  Lallemand's argument

            that  McDonald  tampered  with  evidence   is  not  seriously

            supported.   The undisputed facts show not only that McDonald

            had  an  objectively  reasonable  basis  for  believing  that

            probable  cause  existed--which   is  enough  for   qualified

            immunity, Hunter, 112  S. Ct. at 536--but  also that probable
                      ______

            cause actually existed.

                 Lallemand also claims that  McDonald acted in subjective

            bad faith  and that  this presented a  factual issue  for the

            jury.  The Supreme Court in Harlow v. Fitzgerald, 457 U.S. at
                                        ______    __________

            818,  cast great  doubt on whether  such a claim  has a legal

            basis.  See Floyd v. Farrell, 765 F.2d 1, 6 (1st  Cir. 1985).
                    ___ _____    _______

            In any  event, there is here no  factual basis for the claim.

            The main "evidence"  of such bad faith is  the admission made

____________________

                 2On the contrary, it  appears that the rape  kit samples
            were submitted for analysis at  about the time the arrest was
            made.  This may, or may not, have been poor police procedure;
            but  a rape kit analysis is not a predicate to probable cause
            where the accuser says that she has been raped and identifies
            the victim.  

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by McDonald in his deposition  that the rape kit results made

            him question  whether anyone  had raped  Eckman.   Since this

            admission and  the knowledge it reflects both  came after the

            arrest, they  provide no  evidence of bad  faith at  the only

            time that matters.

                 This  brings us  to  Lallemand's  final  argument.    It

            appears that his counsel sought to subpoena  police files and

            grand jury  testimony bearing on this case in connection with

            this civil action.  The district  judge quashed the subpoenas

            and  entered a protective  order.  On  this appeal, Lallemand

            asserts that the files and  grand jury testimony were crucial

            to his case--the  assertions of need are  fairly general--and

            that the district court erred in not enforcing the subpoenas.

We  need not pursue the question whether these materials

            were  discoverable under Rhode Island law, a question raising

            legal  issues  that  Lallemand  does  not  adequately  brief.

            McDonald's  brief says  that practically  all  of the  police

            files were turned over during a deposition; that the district

            court's action  limiting discovery  was expressly subject  to

            reconsideration based on a more specific showing of need; and

            that in opposing  summary judgment Lallemand did  not ask for

            further  discovery  or  claim that  he  could  not adequately

            respond because of  the quashed subpoenas.  Lallemand has not

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troubled to file  a reply brief contesting  these assertions.

            Taking them as conceded, they resolve the matter.

                 The last  issue on  appeal  is the  claim of  McDonald's

            counsel  that  double  costs and  attorneys'  fees  should be

            awarded because the appeal was frivolous, was brought  in bad

            faith and was  premised upon a  deliberate distortion of  the

            factual record.  See 28 U.S.C.    1912, 1927; Fed. R. App. P.

            38.  In  our view, there were  just enough loose ends  in the

            investigation to make  the appeal  legitimate, although  very

            likely to  fail.   But an appeal  can be weak,  indeed almost

            hopeless, without being  frivolous, and we think  an award of

            double costs or attorneys' fees is not warranted.

                 In this case, the proper objection is not to the pursuit

            of the appeal; it is to the various distortions of the record

            wrought  by  Lallemand's  brief.   The  worst  examples, some

            repeated  twice  or  more  in the  brief,  have  already been

            mentioned.  As is  usually the case, these tactics  undermine

            rather than bolster  the client's position.   The distortions

            are  easily rebutted, and they distract attention from better

            arguments.   And once it is lost,  a court's trust in counsel

            is not readily restored.

                 The  judgment is affirmed  with ordinary costs  taxed to
                                  ________

            appellant.    Appellees'   request  for   double  costs   and

            attorneys' fees is denied.
                               ______

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