Rivera v. Murphy

• Court: Court of Appeals for the First Circuit
• Decided: November 10, 1992
• Docket: 92-1688
• Status: Published

Opinion

USCA1 Opinion

November 10, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1688

                                     EMMA RIVERA,

                                Plaintiff, Appellant,

                                          v.

                                     PAUL MURPHY,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Jennifer  Petersen,  with whom  Andrew  Stockwell-Alpert,  was  on
            __________________              ________________________
        brief, for appellant.
            William J. Walsh, Assistant Corporation Counsel, with whom  Albert
            ________________                                            ______
        W. Wallis, Corporation Counsel, City of Boston, and Gerard A. Pugsley,
        _________                                           _________________
        Assistant  Corporation Counsel,  City of  Boston,  were on  brief, for
        appellee.

____________________

____________________

BOWNES, Senior Circuit  Judge.  This appeal  arises
                              _____________________

            out  of an action brought by Emma Rivera against Paul Murphy,

            a  Boston Police officer, for violations of 42 U.S.C.   1983,

            Mass. Gen. L. ch. 12,   11I, and  for state law  tort claims,

            including:    assault  and   battery;  false  arrest;   false

            imprisonment;  malicious prosecution;  intentional infliction

            of emotional  distress; and, negligence.   Rivera alleged she

            suffered   physical  and   emotional  injuries   when  Murphy

            subjected  her  to a  warrantless  arrest  for possession  of

            cocaine in violation of Mass. Gen. L. ch. 94C,    34.  Murphy

            moved for summary judgment on the ground that he was entitled

            to qualified immunity  because he had probable  cause to make

            the arrest from which the alleged violations and torts arose.

            Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs,
            ________    _________                       ______    ______

            475  U.S. 335  (1986);  Harlow v.  Fitzgerald,  457 U.S.  800
                                    ______     __________

            (1982).  The  district court granted  the motion for  summary

            judgment as  to the   1983 claim and six of the seven pendent

            state law claims.

                      Rivera appeals this ruling and has asked us to find

            that Murphy was not entitled to qualified immunity because he

            lacked  probable cause to arrest her, and that, in any event,

            the district court  should have dismissed without  prejudice,

            rather than  granted summary  judgment on, the  pendent state

            law claims.  We agree with Rivera.  We reverse and remand the

            case to the district court.

I
                                          I

                                  Standard of Review
                                  Standard of Review
                                  __________________

                      Summary judgment  is appropriate when  "there is no

            genuine issue  as to any material  fact and . .  . the moving

            party is entitled to a judgment as a matter of law."  Fed. R.

            Civ. P. 56(c); see, e.g., Prokey v.  Watkins, 942 F.2d 67, 72
                           ___  ____  ______     _______

            (1st Cir.  1991).  This court's  review of a district court's

            grant of  summary  judgment is  plenary.   Hoffman v.  Reali,
                                                       _______     _____

            No. 91-1703,  slip  op.  at 9  (1st  Cir.  August  27, 1992);

            Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.
            _______________    _____________

            1992);  Griggs-Ryan v.  Smith, 904  F.2d  112, 115  (1st Cir.
                    ___________     _____

            1990).  On appeal, as below, we must "view  the entire record

            in the light  most hospitable to  the party opposing  summary

            judgment, indulging all reasonable inferences in that party's

            favor."  Griggs-Ryan,  904 F.2d at 115.  In  the absence of a
                     ___________

            dispute over  the  underlying material  facts, a  defendant's

            entitlement to qualified immunity is a question of law and is

            reserved for plenary review by this court.  Hoffman, slip op.
                                                        _______

            at 9 (citations omitted).   We begin by setting out the facts

            of this case in the light most favorable to Rivera.

II
                                          II

                                        Facts
                                        Facts
                                        _____

                      On  the evening  of  October 25,  1988, Rivera  was

            double-parked  in downtown  Boston.   A man  known to  her as

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Torres  said  "hi" as  he walked  past  her on  the sidewalk,

            approximately ten feet from the car in which she was sitting.

            Rivera responded  in kind, at which  point their conversation

            terminated.   Torres  never came within  ten feet  of Rivera.

            Moments later, an unmarked police car stopped behind Rivera's

            vehicle.  Paul Murphy,  a plainclothes Boston police officer,

            stopped Torres,  searched him,  and placed him  under arrest.

            Officer Murphy subsequently approached Rivera  and asked that

            she get out of the car.  Rivera complied without objection or

            resistance.   Murphy then  instructed Rivera to  turn around.

            Again,  Rivera complied.  She was handcuffed and placed under

            arrest.  In handcuffing  Rivera, Officer Murphy tightened the

            handcuffs to a degree that  caused her pain.  After  a police

            cruiser  arrived at the scene, Rivera was taken to the police

            station and placed in a holding cell.

                      On October 26, 1988, Rivera was arraigned in Boston

            Municipal Court  and was charged with  possession of cocaine.

            She  was  tried on  March  7,  1989.   At  the  close of  the

            Commonwealth's evidence, Rivera was found not guilty.  Torres

            was  convicted  for  unlawful  possession  of  cocaine  at  a

            separate trial.

                      On  April  1, 1991,  Rivera  filed  a complaint  in

            Suffolk County Superior Court against both the City of Boston

            and  Paul Murphy,  individually,  and in  his  capacity as  a

            police officer of the City of Boston.  The complaint included

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eight  counts:   (I)  violations of  42  U.S.C.    1983; (II)

            violations of  Mass. Gen. L. ch. 12,   11I; (III) assault and

            battery;  (IV) false  arrest;  (V) false  imprisonment;  (VI)

            malicious  prosecution;  (VII)   intentional  infliction   of

            emotional  distress;  and   (VIII) negligence.     Defendants

            removed  the case to the United States District Court for the

            Eastern District  of Massachusetts,  pursuant to 42  U.S.C.  

            1441.   The  City of  Boston filed  a motion  to  dismiss the

            complaint as to itself, which uncontested motion was allowed.

                      Pursuant  to  Fed. R.  Civ.  P.  56, the  remaining

            defendant,   Officer  Murphy,  filed  a  motion  for  summary

            judgment. Murphy  attached an affidavit to  the memorandum in

            support of this motion, stating in pertinent part:

                 2.   I have been a Boston Police Officer since
                      May 15, 1985;

                 3.   I   have   received   training  in   Drug
                      Investigations through  the Boston Police
                      Academy and various on the job training;

                 4.   I  have received the following awards for
                      meritorious police work;  the William  J.
                      Taylor  Award  and   the  Boston   Police
                      Department Medal of Honor;

                 5.   I  have a bachelor's  degree in Marketing
                      from Boston College (Class of 1982);

                 6.   On  October 25,  1988 I responded  to 680
                      Tremont  Street  at the  direction  of my
                      superiors    Lieutenant   Cellucci    and
                      Sergeant Famolare, as there was  a report
                      of  drug trafficking taking place at that
                      location;

                 7.   I  observed  the  Plaintiff  Emma  Rivera
                      involved in what I  believed to be a drug

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                                          5

transaction  based  on  my  observations,
                      training and experience;

                 8.   I  arrested Emma Rivera, Roberto Cruz and
                      Jesus  Torres  on   probable  cause   and
                      without a  warrant  for possession  of  a
                      Class "B" substance to wit Cocaine;

                 9.   I  formed   my   probable  cause   on   a
                      reasonable  good  faith belief  under the
                      attendant circumstances.

                      On May 5, 1992, the district court allowed Murphy's

            motion  for summary  judgment  with respect  to counts  I-VII

            after finding that Murphy was entitled to qualified immunity.

            The  court   dismissed  count   VIII  for  lack   of  pendent

            jurisdiction.  Rivera filed a timely appeal.

                      There is no genuine dispute over the material facts

            of this  case.  The two affidavits that were before the court

            below, and which  are before  this court on  appeal, are  not

            inconsistent.  Rivera contends  that Torres never came within

            ten feet of her on the night when she was  arrested.  Officer

            Murphy contends that he saw Rivera engaged in what he thought

            was a  drug transaction based on  his "observations, training

            and experience."   Officer  Murphy's affidavit does  not deny

            any  of the factual allegations  of Rivera.   He says nothing

            whatsoever about  what facts led  him to believe  that Rivera

            was involved in a drug transaction.   As far as his affidavit

            is concerned,  he arrested Rivera  simply because, for  a few

            seconds,  she  was at  a distance  of  ten feet  from Torres.

            Officer Murphy's statement  is not at  variance with that  of

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                                          6

Rivera.    Rivera does  not,  because she  cannot,  rebut the

            subjective and conclusory assertion of Murphy.

                      At issue on appeal is the legal conclusion asserted

            by Officer Murphy  in his  affidavit and relied  upon by  the

            court  below.   That  is, taking  the  facts as  asserted  in

            Rivera's affidavit as true, summary judgment should have been

            granted  in  favor of  Officer  Murphy only  if  a reasonable

            police officer could have believed  he had probable cause  to

            arrest  Rivera which  would have  cloaked him  with qualified

            immunity.    We  must  therefore  determine  whether  Officer

            Murphy's stated  cause for  arresting Rivera entitles  him to

            the protection of qualified immunity.

III
                                         III

                                  Qualified Immunity
                                  Qualified Immunity
                                  __________________

                      The Supreme  Court  announced the  general rule  of

            qualified immunity in Harlow, when it stated that "government
                                  ______

            officials performing discretionary  functions, generally  are

            shielded 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."   457  U.S.  at  818.   See  also  Hunter v.  Bryant,
                                            ___  ____  ______     ______

            112 S. Ct. 534,  536 (1991) (per curiam);  Anderson, 483 U.S.
                                                       ________

            at  641.   Officer  Murphy  is  entitled  to  immunity  if  a

            reasonable  officer could  have believed that  probable cause

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                                          7

existed  to arrest Rivera.  Hunter, 112  S. Ct. at 537.  This
                                        ______

            is not a  stringent test.  Indeed, "[t]he  qualified immunity

            standard  `gives  ample  room  for  mistaken  judgments'   by

            protecting  `all but  the  plainly incompetent  or those  who

            knowingly  violate  the law.'"   Hunter,  112  S. Ct.  at 537
                                             ______

            (quoting  Malley, 475 U.S. at  343, 341).1   The officers are
                      ______

            therefore  entitled to  qualified  immunity "so  long as  the

            presence of probable cause  is at least arguable."   Ricci v.
                                                                 _____

            Urso, No. 91-2067, slip  op. at 5 (1st Cir. August 31, 1992);
            ____

            Prokey,  942 F.2d 67, 72  (1st Cir. 1991);  Floyd v. Farrell,
            ______                                      _____    _______

            765 F.2d 1, 5 (1st Cir. 1985).

                      Under the  Fourth Amendment,2 the right  to be free

            from unreasonable  seizures of  the  person gives  rise to  a

            requirement  that arrests  be  supported  by probable  cause.

            See, e.g.,  Beck v.  Ohio, 379  U.S. 89, 91  (1964).   As the
            ___  ____   ____     ____

            Court  explained in Wong Sun  v. United States,  371 U.S. 471
                                ________     _____________

            (1963):

____________________

1  The  law  provides  immunity for  such  reasonable  errors
            because  "officials  should not  err  always on  the  side of
            caution" out of a fear of  civil suit.  Davis v. Scherer, 468
                                                    _____    _______
            U.S. 183, 196 (1984).

            2 The Fourth Amendment provides that:
                 [t]he  right of the  people to  be secure  in their
                 persons,  houses,  papers,  and   effects,  against
                 unreasonable  searches and  seizures, shall  not be
                 violated,  and no  Warrants shall  issue,  but upon
                 probable cause, supported  by Oath or  affirmation,
                 and  particularly   describing  the  place   to  be
                 searched, and the persons or things to be seized.
            U.S. Const. amend. IV.

                                         -8-
                                          8

It  is  basic  that an  arrest  with  or without  a
                 warrant  must stand  upon firmer  ground  than mere
                 suspicion . . . , though the arresting officer need
                 not have  in hand  evidence which would  suffice to
                 convict.     The   quantum  of   information  which
                 constitutes  probable cause    evidence which would
                 "warrant a man of reasonable caution in the belief"
                 that a  felony has  been committed . . .    must be
                 measured by the facts of the particular case.

            Id. at 479 (citations  omitted).  The probable cause  test is
            ___

            an  objective one, for, as  the Supreme Court  noted in Beck,
                                                                    ____

            "[i]f  subjective  good  faith   alone  were  the  test,  the

            protections of the Fourth  Amendment would evaporate, and the

            people would be `secure in their  persons, houses, papers and

            effects,' only in the  discretion of the police."   Beck, 379
                                                                ____

            U.S.  at 97.  Therefore,  we have stated  that probable cause

            exists when "`the facts  and circumstances within [the police

            officers']  knowledge  and  of   which  they  had  reasonably

            trustworthy information were sufficient to  warrant a prudent

            [person] in  believing that the [defendant]  had committed or

            was committing an offense.'"  United States  v. Figueroa, 818
                                          _____________     ________

            F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck, 379 U.S. at 91
                                                     ____

            (1964)).  Finally, in  reviewing any determination  regarding

            the  sufficiency  of  cause  to  effect  an  arrest  we  must

            "consider  the  totality  of circumstances  to  evaluate  the

            government's demonstration of sufficient `[p]robability . . .

            of criminal activity.'"   United States v.  Maguire, 918 F.2d
                                      _____________     _______

            254, 258 (1st Cir. 1990) (quoting Illinois v. Gates, 462 U.S.
                                              ________    _____

            213, 235 (1983)).        Officer   Murphy's   affidavit  sets

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                                          9

forth  no facts to support  his legal conclusion  that he had

            probable cause to effect  the arrest of Rivera.   Stripped to

            its bare  essentials, Murphy's  affidavit states that  he saw

            what  he saw,  so he did  what he  did.   Nowhere does Murphy

            state  precisely what it was  that he saw.   His observations

            were  recorded as just that:   "observations".  The affidavit

            simply   makes  the   bald  assertion   that  based   on  his

            "observations,  training  and  experience,"  he  had probable

            cause to make the arrest.

                      In order to have probable cause for a Terry stop (a
                                                            _____

            minimal intrusion relative to  arrest), a police officer must

            have "specific  and articulable  facts which, taken  together

            with rational  inferences from  those facts," could  create a

            reasonable suspicion sufficient to  justify a brief detention

            of an individual.  Terry v.  Ohio, 392 U.S. 1, 21, 27 (1968).
                               _____     ____

            Here,   Officer  Murphy  recounts   no  such   "specific  and

            articulable  facts."  If he  could not have  met the standard

            for  such  a  brief  investigatory detention  of  Rivera,  he

            certainly  does not  meet the  requirements for  a full-blown

            arrest.  Absent any specific and articulable observations, it

            cannot be said that it was even arguable as to whether Murphy

            had probable cause to make a warrantless arrest.

                      The experience  and  training of  a police  officer

            are, of course, factors to be considered in the determination

            of probable  cause, but,  the "relevance [of  such experience

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                                          10

and  training]  in a  particular  case  must be  sufficiently

            conveyed so that . .  . it `can be understood by  the average

            reasonably prudent person.'"   Wayne R. LaFave,  1 Search and

            Seizure 575 (2d ed. 1987) (quoting United States v. Chadwick,
                                               _____________    ________

            393  F. Supp. 763, 769  (D. Mass. 1975), aff'd,  532 F.2d 773
                                                     _____

            (1st Cir. 1976), aff'd, 433 U.S. 1 (1977)).  See, e.g., Brown
                             _____                       ___  _ _   _____

            v. Texas, 443 U.S. 47, 51-52 & n. 2 (1979);  United States v.
               _____                                     _____________

            Brignoni-Ponce,  422  U.S.  873,  884-86   (1975);  see  also
            ______________                                      ___  ____

            Maguire, 918 F.2d at 258.     Were we to affirm  the district
            _______

            court's  ruling  below,  we  would  give  license  to  police

            officers  to make  unwarranted arrests, and  retain qualified

            immunity  from civil suits so long as they asserted that they

            thought they had probable  cause to make the arrest  based on

            their "observations, training and experience."  Creating such

            a  talisman  would effectively  transform the  police officer

            into a judge, and the court into a rubber stamp.

                      Officer   Murphy  should  not   have  been  granted

            qualified immunity  by the court  below because there  are no

            facts alleged  in Murphy's  affidavit showing, or  tending to

            show, that he had probable cause to arrest Rivera.

IV
                                          IV

                               Pendent State Law Claims
                               Pendent State Law Claims
                               ________________________

                      Upon granting summary judgment in favor of  Officer

            Murphy on the basis of qualified immunity, the district court

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                                          11

granted summary judgment on the state  law claims asserted in

            Counts II-VII of Rivera's complaint, and dismissed Count VIII

            (negligence).  Because  we hold that Murphy  was not entitled

            to qualified immunity  and that summary  judgment on Count  I

            should not,  therefore, have  been granted  in his  favor, we

            also  hold that the court erred  in granting summary judgment

            on Rivera's pendent state law claims.

                      Even  had the court  been correct  in its  grant of

            summary judgment on the   1983 claim, it  would not have been

            proper to grant  summary judgment  on the  pendent state  law

            claims.    Rather,  in  this  case,  the  court  should  have

            dismissed the pendent  claims over which the  court no longer

            had jurisdiction,  thereby allowing  the plaintiff  to pursue

            the action in state court where it was first brought.  As the

            Supreme Court stated in  Carnegie-Mellon Univ. v. Cohill, 484
                                     _____________________    ______

            U.S. 343 (1987):

                 Under Gibbs,  a federal court  should consider  and
                       _____
                 weigh  in  each case,  and  at every  stage  of the
                 litigation,   the   values  of   judicial  economy,
                 convenience,  fairness,  and  comity  in  order  to
                 decide whether to exercise jurisdiction over a case
                 brought in  that court involving  pendent state-law
                 claims.     When  the  balance  of   these  factors
                             _______________________________________
                 indicates  that a  case  properly belongs  in state
                 ___________________________________________________
                 court, as when the  federal-law claims have dropped
                 ___________________________________________________
                 out  of the lawsuit  in its  early stages  and only
                 ___________________________________________________
                 state-law claims remain,  the federal court  should
                 ___________________________________________________
                 decline the exercise  of jurisdiction by dismissing
                 ___________________________________________________
                 the case without prejudice.
                 __________________________

            Id. at 350 (emphasis supplied) (footnote omitted).   See also
            ___                                                  ___ ____

            Cullen v. Mattaliano, 690 F. Supp. 93 (D. Mass. 1988) ("it is
            ______    __________

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                                          12

the  settled  rule in  this Circuit  that in  a non-diversity

            case,  where pendent state  claims are joined  with a federal

            cause  of  action and  that federal  cause  of action  is the

            subject of a successful  summary judgment motion, the pendent

            state claims should be dismissed.").  Id. at 99.
                                                  ___

                      The court had federal question jurisdiction to hear

            the     1983 claim  and  therefore had  jurisdiction  to hear

            pendent  state  law claims  which  "derive[d]  from a  common

            nucleus of  operative fact" and were "such that [a plaintiff]

            would  ordinarily be expected to try them all in one judicial

            proceeding."    United  Mine  Workers of  America  v.  Gibbs,
                            _________________________________      _____

            383 U.S. 715,  725 (1966); see also  Carnegie-Mellon Univ. v.
                                       ___ ____  _____________________

            Cohill, 484 U.S. 343 (1988).
            ______

V
                                          V

                      The judgment of the  district court is reversed and

            the case is remanded.

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