Lowinger v. Broderick

• Court: Court of Appeals for the First Circuit
• Decided: March 22, 1995
• Docket: 94-2077
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 94-2077

                               LAZAR LOWINGER, ET AL.,

                               Plaintiffs - Appellees,

                                          v.

                                WILLIAM T. BRODERICK,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                          Selya and Boudin, Circuit Judges,
                                            ______________

                             and Carter,* District Judge.
                                          ______________

                                _____________________

               James F. Lamond, with whom Alan J. McDonald and McDonald and
               _______________            ________________     ____________
          Associates were on brief for appellant William T. Broderick.
          __________
               Thomas J.  Chirokas for appellees Lazar  Lowinger and Audrey
               ___________________
          Lowinger.

____________________

                                    March 22, 1995
                                 ____________________

____________________

          *  Of the District of Maine, sitting by designation.



CARTER, District Judge.  In this case Plaintiffs, Lazar
                    CARTER, District Judge.
                            ______________

          and Audrey  Lowinger, seek recovery  under 42 United  States Code

          Section  1983  and  state  tort law1  from  Defendants,  Sergeant

          William T.  Broderick ("Broderick")  and Commissioner  Francis M.

          Roache, both of the Boston Police Department; former Boston Mayor

          Raymond  Flynn;  and the  City of  Boston  for damages  caused by

          Defendants' allegedly false arrest  of Lazar Lowinger.  Defendant

          Broderick,  who   was  sued   in  his  individual   and  official

          capacities, moved for summary  judgment asserting his entitlement

          to  qualified immunity for any of the acts alleged by Plaintiffs.

          The district  court concluded  that the record  contained genuine

          issues of material fact  regarding whether Broderick was entitled

          to summary  judgment  and  denied Broderick's  motion.    We  now

          reverse.  The essential facts, as presented to the district court

          by the parties, follow.

I.  FACTS AND PROCEDURAL HISTORY
                           I.  FACTS AND PROCEDURAL HISTORY
                           ________________________________

                    On  September 9, 1987,  Defendant Broderick, a sergeant

          with  the  Boston Police  Department,  was assigned  to  a police

          district located  in Brighton  as a  patrol supervisor.   Shortly

          after  midnight, Broderick  responded  to a  complaint of  a loud

          party and arrested  one person, Stephen Quinn, for disturbing the

          peace and  possession of  a false liquor  purchase identification

                              
          ____________________

          1     The  state  law  counts  in  the  Complaint  include  false
          imprisonment,    malicious    prosecution,   interference    with
          contractual  relations,  intentional   infliction  of   emotional
          distress, negligence, and loss of consortium.

                                         -2-



card.  Quinn was taken back to the district station  where he was

          booked and detained.

                    At  approximately  the  same  time as  Quinn's  arrest,

          Plaintiff Lazar Lowinger ("Lowinger"), an attorney, was contacted

          at his home by an  individual requesting that Lowinger  undertake

          to represent  Quinn.  Lowinger contacted the district station and

          spoke  to  Broderick,  who  refused to  provide  any  information

          regarding  Quinn's arrest over the  phone.  Lowinger  went to the

          police station  and entered with two young  men, both of whom had

          been in the station earlier that night in connection with Quinn's

          arrest  and had been told to leave because they were intoxicated,

          and one of whom had contacted Lowinger to represent Quinn.

                    Lowinger  presented  himself  at  the  counter  in  the

          station  as Quinn's attorney and showed the officer a small hand-

          held  tape  recorder, stating  that he  wanted  to see  Quinn and

          intended to record  the "proceedings."   At that time,  Broderick

          instructed the two men accompanying Lowinger to leave the station

          and  expressly  told  Lowinger  that he  did  not  authorize  the

          recording of the conversation and to  turn the recorder off.  The

          two men  left and Lowinger turned off  the recorder, placed it on

          the counter,  and proceeded to  have a  "heated discussion"  with

          Broderick  regarding  the  use   of  the  recorder  during  which

          Broderick informed Lowinger that  the recording of a conversation

          without the  knowledge or authorization of the participants was a

-3-



felony.2   The  upshot of  the discussion  was that  Lowinger was

          unsuccessful in convincing Broderick to permit him to see Quinn.

                    At some point thereafter, Broderick saw the recorder in

          Lowinger's  possession once again with  its red light  on and the

          tape  moving  inside.    It  is  disputed whether  Broderick  was

          speaking  at  the  time the  machine  was  recording.   Broderick

          instructed the other officers  to take Lowinger into  custody for

          violation   of  Massachusetts  state   law  against  unauthorized

          interception of communications.  In the criminal prosecution that

          followed, Lowinger successfully moved  to suppress the small tape

          recorder after the state court concluded that, because there were

          only a "few  words" on the tape from  that incident, Lowinger was

          merely  dictating a  memo  to  himself  when  he  turned  on  the

          recorder.

                    Lowinger  and his  wife, Audrey,  commenced this  civil

          action  for Defendants'  alleged infringement  on the  Lowingers'

          civil rights and  for violations  of state tort  law.   Broderick

          moved for summary judgment on the basis of qualified immunity and

          submitted an affidavit to support his position.  Plaintiffs filed

          an untimely response  to the motion  and submitted a copy  of the

                              
          ____________________

          2   Broderick was  making reference  to a Massachusetts  criminal
          statute which  imposes penalties upon any  person who: "willfully
          commits an  interception [or] attempts to  commit an interception
          . . . of  any wire or oral communication."  Mass. Gen. Laws. Ann.
          ch.  272,   99(C)(1).  As provided in that section's definitions,
          "'interception' means to secretly hear [or] secretly record . . .
          the contents of any wire or oral communication through the use of
          any interception device by  any person other than a  person given
          prior authority  by  all parties  to  such communication."    Id.
                                                                        ___
            99(B)(4).

                                         -4-



"Findings Regarding Allowance of  Defendant's Motion to Suppress"

          ("Findings") issued  by the  Massachusetts District  Court during

          the  unsuccessful criminal  prosecution of  Lowinger.3   When the

          summary  judgment  motion  was  decided  in recorded  proceedings

          before the district court,  the court considered both Broderick's

          affidavit  and  the state  court's  Findings,  concluding that  a

          genuine  issue  of  material   fact  existed  regarding   whether

          Broderick was entitled to qualified immunity.  This interlocutory

          appeal by Broderick followed.

II.  ANALYSIS
                                    II.  ANALYSIS
                                    _____________

                                   A.  Jurisdiction
                                   A.  Jurisdiction
                                   ________________

                    As a preliminary matter, Lowinger disputes whether this

          Court has proper jurisdiction over the appeal  since the district

          court's denial of summary  judgment was not a "final  order" from

          which an appeal may follow.

                    It  is  well-settled  that   a  court  of  appeals  has

          jurisdiction over an interlocutory appeal from a district court's

          denial  of qualified immunity.  Mitchell v. Forsyth, 472 U.S. 511
                                          ________    _______

          (1985).  The  Supreme Court in Mitchell  explained that immunity,
                                         ________

          whether absolute  or qualified, has the  "essential attribute" of

          entitling  its  possessor to  avoid  standing trial.    Thus, the

          doctrine provides "immunity from suit rather than  a mere defense
                             __________________

          to  liability; and  . .  . it is  effectively lost  if a  case is
                              
          ____________________

          3    The  Commonwealth  of  Massachusetts  sought  review of  the
          District  Court's  Order  suppressing  the  recorder  but   later
          withdrew its appeal.  Appendix at 63-65.

                                         -5-



erroneously permitted to  go to trial."   Id. at  526.  See  also
                                                    ___           _________

          Anderson v. Creighton, 483 U.S. 635 (1987).
          ________    _________

                    This  Court, time  and  again, has  heeded the  Supreme

          Court's instructions in this area and exercised jurisdiction over

          such  appeals, including  appeals from  district courts  that had

          concluded that there were  genuine issues of material fact,  and,

          on  several  occasions, this  Court  has reversed  the  denial of

          summary  judgment.   See,  e.g.,  Febus-Rodr guez v.  Betancourt-
                               ___   ____   _______________     ___________

          Lebr n, 14 F.3d 87, 90 (1st Cir. 1994);  Rogers v. Fair, 902 F.2d
          ______                                   ______    ____

          140, 142  (1st Cir. 1990);   Fonte v. Collins, 898  F.2d 284, 285
                                       _____    _______

          (1st Cir. 1990);   Newman v. Massachusetts, 884 F.2d 19,  22 (1st
                             ______    _____________

          Cir.  1989);  Mariani-Gir n v. Acevedo-Ruiz,  877 F.2d 1114, 1120
                        _____________    ____________

          (1st  Cir. 1988); Unwin v. Campbell, 863  F.2d 124, 132 (1st Cir.
                            _____    ________

          1989).   If the  district court was  in error  in denying summary

          judgment, permitting the immediate  appeal of such denials avoids

          subjecting   officials  unnecessarily  to  discovery  and  trial.

          Accordingly, our review  of the district court's actions  here is

          proper and,  since those  actions address  questions of  law, the

          district  court's  conclusions  are  subject  to  plenary review.

          Febus-Rodr guez, 14 F.3d at 90.
          _______________

B.  Summary Judgment and Qualified Immunity
                     B.  Summary Judgment and Qualified Immunity
                     ___________________________________________

                    The  central  question  presented  by  this  appeal  is

          whether  the district  court properly  concluded that  the record

          demonstrated   genuine  issues   of   material   fact   regarding

          Broderick's   entitlement  to   immunity  and,   therefore,  that

-6-



Broderick was not  entitled to  summary judgment as  a matter  of

          law.  Broderick  argues on  appeal that the  record in this  case

          substantiates his entitlement to  qualified immunity and that the

          district court  erred when  it concluded  that genuine issues  of

          material fact were generated  through the parties' submissions on

          the motion.  Although  Broderick has raised other issues  in this

          appeal, our resolution of this primary matter eliminates our need

          to reach these other issues.4

                    The  inquiry for  a  district court's  resolution on  a

          motion  for  summary  judgment  brought by  an  official  seeking

          qualified immunity  is "whether a reasonable  official could have

          believed his actions were lawful in light of  clearly established

          law and the information the official possessed at the time of his

          allegedly unlawful  conduct."   Id.  at  91 (quoting  McBride  v.
                                          ___                   _______

          Taylor,  924 F.2d 386, 389  (1st Cir. 1991)).   Although, as with
          ______

          any  summary judgment  determination,  all  facts and  reasonable

          inferences are  construed in  favor of the  nonmoving party,  the

          analysis employed to determine whether an official is entitled to
                              
          ____________________

          4   Broderick raises  certain procedural  issues  in his  appeal,
          which we do not reach today.  Specifically, Broderick argues that
          since  the  Lowingers'  opposition  to  his  Motion  for  Summary
          Judgment  was untimely  under  local rules,  it should  have been
          disregarded  by the  district court.   Further,  Broderick argues
          that the district  court erred  by relying on  the state  court's
          Findings  in lieu  of affidavits  or other  submissions from  the
          Lowingers.    This  Court's  primary analysis  of  the  denial of
          summary  judgment  here  has  assumed  that  the  District  Court
          properly  considered  Plaintiffs' response  and  the  Findings in
          opposition  to the motion for summary judgment.  Since, even with
          those  assumptions, we  conclude that  Broderick was  entitled to
          summary  judgment, we need not decide  whether the district court
          should  have  disregarded  either  Plaintiffs'  response  or  the
          Findings of the state court.

                                         -7-



summary  judgment is  quite  generous.   A "reasonable,  although

          mistaken, conclusion  about the lawfulness of  one's conduct does

          not  subject  a  government  official   to  personal  liability."

          Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991).  This Court
          _______    ______

          has observed  that the "qualified immunity  standard 'gives ample

          room for mistaken judgments'  by protecting 'all but the  plainly

          incompetent  or those who knowingly violate the law.'"  Rivera v.
                                                                  ______

          Murphy,  979 F.2d  259, 263  (1st Cir.  1992) (quoting  Hunter v.
          ______                                                  ______

          Bryant, 116  L.Ed.2d 589, 596 (1991) (per  curiam)).   Under this
          ______

          analysis,   "A  court   must   look  to   the  'objective   legal

          reasonableness'   of  an  official's   conduct,  as  measured  by

          reference to  clearly established law."   Mariani-Gir n, 877 F.2d
                                                    _____________

          at 1116.   Therefore, since even erroneous decisions by officials

          may be entitled to qualified  immunity, the analysis employed  to

          determine entitlement to qualified  immunity warrants an entirely

          different approach from that  employed to evaluate the  merits of

          Plaintiffs' underlying claims.  Id.; Morales v. Ram rez, 906 F.2d
                                          ___  _______    _______

          784, 787 (1st Cir. 1990).

                    Although the district court here correctly observed  at

          the  outset that Broderick was entitled to summary judgment "if a

          reasonable  police officer  could have  believed he  had probable

          cause  to arrest  the plaintiff,"  it is  clear from  the court's

          subsequent  remarks  that  its  true  focus  was  the  merits  of

          Plaintiffs' underlying case when  it determined whether a genuine

          issue of material fact existed on this record.   Appendix at 776.

          Without  reaching the issue  of whether the  state court Findings

-8-



constituted  a  proper  form   of  supporting  documentation  for

          consideration  on   a  summary   judgment  motion,5   this  Court

          concludes that the  district court  was in error  when it  relied

          upon  certain conclusions  of the  state court  to  determine the

          existence  of   a  genuine  issue  of   material  fact  regarding

          Broderick's entitlement to summary judgment.

                    The portion  of Broderick's affidavit pertinent to this

          motion states:

                      I  then  attempted  to   answer  Attorney
                      Lowinger's questions regarding the person
                      he identified as  his client.   Within  a
                      short time  after I  started doing so,  I
                      observed that Attorney  Lowinger had  the
                      tape  recorder  cupped within  his hands.
                      Despite  this,  I  observed a  red  light
                      illuminated on the recorder, and that the
                      tape was turning in the recorder.

          App.  at  40.    It is  beyond  dispute  that  this  statement by

          Broderick, standing alone, establishes a reasonable belief on his

          part that he was  being secretly recorded without  his permission

          in  violation  of a  state criminal  statute.6   The  state court

          Findings considered by  the district court to  generate a factual

          dispute on  this motion were: "Lowinger then  stepped back turned

          on  the recorder  to  dictate a  memo  to himself  regarding  the

                              
          ____________________

          5  See supra note 4.
                 _____

          6  Upon its  review of Broderick's affidavit, the  district court
          observed,  "If  these  facts  were  undisputed,  it  appears  the
          defendant would  be entitled to summary judgment because on those
          facts, a police  officer could reasonably believe  that there was
          probable cause  that the plaintiff was  secretly tape-recording a
          conversation  with the  defendant."   App. at  78.   Although our
          review of such conclusions of law is plenary, we see no reason to
          reach a different result, nor have Plaintiffs provided any.

                                         -9-



refusal to allow him to see Quinn," and "By stipulation the  tape

          recorder contained,  relative to this  whole incident, on  tape a

          very  few words indicating that  the two young  men with Lowinger

          leave the building."  App. at 61, Findings Nos. 9 and 12.

                    These  Findings,  however,  do  nothing  to  refute the

          observations  by Broderick  in  the above-quoted  portion of  his
          ____________

          affidavit.     Instead,  the  Findings  address   the  merits  of

          Lowinger's criminal case and, thus, do not create a genuine issue

          of material  fact germane  to the  summary judgment  analysis for

          qualified  immunity  here.   While  subsequent  investigation and

          adversarial  fact-finding hearings may  have established that, in
                                                                         __

          fact,  Lowinger was  not  secretly taping  his conversation  with
          ____                 ___

          Broderick, such a conclusion does not contradict the assertion by

          Broderick that,  based  upon his  observations  at the  time,  he

          thought that Lowinger was  making such a recording.7   Similarly,
          _______

          the discovery that  the tape did not contain a  recording of that

          conversation  does  not  negate  what  Broderick  had  previously

          reasonably  concluded based  upon all  of the  circumstances, but

          merely  supports Lowinger's  position  before  the  Massachusetts
                              
          ____________________

          7  Thus,  this case does  not present the  scenario of the  "rare
          case" described in Prokey v. Watkins,  942 F.2d 67, 73 (1st  Cir.
                             ______    _______
          1991), in which a determination of qualified immunity as a matter
          of  law,  after assuming  all facts  in  a plaintiff's  favor, is
          "impossible" due  to conflicting  evidence as to  the "underlying
          historical  facts."    Such  facts  could  include "if  what  the
          policeman knew prior to  the arrest is genuinely in  dispute, and
          if  a reasonable  officer's  perception of  probable cause  would
          differ  depending on  the correct  version, that  factual dispute
          must be  resolved by a  fact finder."   Id.   Here,  there is  no
                                                  ___
          dispute  about what Broderick knew  at the time  but, rather, the
          dispute  is over whether his  perception was accurate.   Only the
          former is relevant to the qualified immunity analysis.

                                         -10-



District   Court  that   he  was   not  guilty   of  intercepting

          communications.

                    The district court  attached great significance to  its

          conclusion that a  genuine dispute exists as to whether Broderick

          was speaking at the time of the recording.  Broderick's affidavit

          suggests  that he was speaking,  but the district  court drew the

          inference  that he was not,  based upon the  Finding submitted by

          Plaintiffs  that only a "very  few words" were  on the recording.

          The basis  for such an inference is  not plainly apparent to this

          Court.8    More  importantly,  however,   whether  Broderick  was

          speaking  at  the  precise  moment he  noticed  the  recorder  in
                                                 _______

          operation  is not determinative of whether  he had the reasonable

          belief that  Lowinger was taping their  conversation.  Plaintiffs

          did  not  produce any  evidence  to  directly refute  Broderick's

          affidavit  on this point.   There is no  indication, for example,

          that Broderick knew how long the recorder was on or  that he knew

          at that time that none of his words had been or would be recorded
          ____________                                 ___________

          -- he only perceived that the recorder was in close proximity and

          that it  was recording.  That perception,  which was unchallenged

          in  the proceedings  below,  establishes a  reasonable belief  on

          Broderick's part  that Lowinger  was attempting to  secretly tape

          their conversation without Broderick's authorization in violation

          of Massachusetts law.

                    Lowinger also  argues that the contents of the tape are
                              
          ____________________

          8  One  can make a  similar negative inference from  that Finding
          that Lowinger was not dictating a memo since there is no evidence
          to that effect.

                                         -11-



relevant to  this motion  since  they "present[]  a challenge  to

          Broderick's credibility."   Brief of  Appellee at 23.   As  noted

          already, the tape's contents  do nothing to challenge Broderick's

          current  position regarding  his perceptions  and beliefs  at the

          time   the  recording  was   made.9    At   most,  such  evidence

          demonstrates  that  Broderick  may  have been  mistaken  in  such
                                                         ________

          perceptions and beliefs but, as explained  above, such errors are

          irrelevant  to the  preliminary determination  of entitlement  to

          qualified immunity.  In short, while the parties' submissions are

          conflicting with respect to  certain facts, they do not  create a

          dispute  regarding Broderick's reasonable  beliefs.  Accordingly,

          since there is no genuine issue as to any material fact, judgment
                                                    ________

          should be entered in  favor of Defendant William T.  Broderick on

          the basis of his qualified immunity from judgment.

                    Reversed and remanded with  directions to enter summary
                    _______________________________________________________

          judgment  for  Defendant Broderick  on  the claim  made  under 42
          _________________________________________________________________

          United  States Code Section 1983 and to dismiss without prejudice
          _________________________________________________________________

          the claims based on state law.
          _____________________________

____________________

          9   The issue  facing the district  court would  have been  quite
          different if,  for example, Plaintiffs could  provide evidence of
          actions  or statements by Broderick  at the time  of the incident
          which  would tend to negate his statements of his observations as
          provided in his  affidavit.  If  such truly conflicting  evidence
          were presented, then  the court  would have been  faced with  the
          scenario  described in Prokey, note 7 supra, and entry of summary
                                 ______         _____
          judgment for Broderick would be inappropriate.

                                         -12-