Sheehy v. Town of Plymouth

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2080



       RICHARD N. SHEEHY, SHIRLEY SHEEHY, and LEAH SHEEHY,



                     Plaintiffs, Appellants,



                                v.



                 TOWN OF PLYMOUTH and RITA QUINN,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Robert B. Collings, U.S. Magistrate Judge]


Before



                      Stahl, Circuit Judge,

                 Magill, Senior Circuit Judge,*

                    and Lipez, Circuit Judge


Robert S. Wolfe for appellants.

     Robert L. Kirby, Jr., with whom Robert P. Sherman and David B.

Mack were on brief for appellees.


September 8, 1999


*Of the Eighth Circuit, sitting by designation.  LIPEZ, Circuit Judge. This case requires us to decide

whether a police officer sued for making an allegedly illegal

arrest can invoke the "related crimes" defense in asserting

qualified immunity.  The defense, adopted by a number of other

circuits, provides "that even where there is no probable cause to

arrest the plaintiff for the crime charged, proof of probable cause

to arrest the plaintiff for a related offense is also a defense

which may entitle the arresting officer to qualified immunity."

Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997).  The district court

adopted the related crimes defense and granted summary judgment for

the defendant police officer.  Although we conclude that a police

officer is entitled to invoke the related crimes defense, we must

vacate the district court's entry of summary judgment.  There

exists a genuine issue of material fact as to whether the 

defendant police officer, Rita Quinn, clearly did not have probable

cause to arrest plaintiff Richard Sheehy for disorderly conduct,

the crime cited by the officer as the basis for the arrest at the

scene.  We further conclude that the related crimes defense should

not apply to assault and battery with a dangerous weapon, the crime

charged at the police station after the arrest.                               I.

  This case stems from an altercation between two neighbors

in the town of Plymouth, Massachusetts.  Following a long and

contentious relationship with Warren Baker, Richard Sheehy got into

an argument with Baker on Baker's property. Baker punched Sheehy in

the eye and, in an effort to stop Baker from hitting him again,

Sheehy grabbed Baker's shoulder.  Sheehy lost his balance and fell

on top of Baker. Baker started yelling for someone to call the

police.

   A number of officers arrived at the scene.  They were

familiar with Baker, having been called to Baker's residence on a

number of prior occasions, and they did not take the situation very

seriously.  A sergeant at the scene questioned Sheehy about the

disturbance and asked him if he was going to file a complaint. 

Sheehy informed the sergeant that he would not be filing a

complaint.

  Officer Quinn then arrived at the scene.  She first went

to Baker's house where Baker told her that Sheehy had assaulted and

kicked him.  Officer Quinn had been to Baker's house before to

investigate disturbances, and had always found him to be truthful.

Although she could smell alcohol on his breath, she did not think

he was drunk.  Officer Quinn then went across the street to

Sheehy's driveway where Sheehy was washing his boat.  There were 

four bystanders in the driveway, and one of them was shouting and

visibly upset.  Officer Quinn attempted to question Sheehy, but he

refused to respond, telling Officer Quinn that he had already given

his name and address to the sergeant.  She told him that "I'm the

investigating officer now, and I am not going to put up with this

. . . you know, either you give me identification or I arrest you." 

Sheehy put his hands out and said, "Then just arrest me."  Officer

Quinn said, "You're under arrest."  Sheehy asked what he was being

arrested for and Officer Quinn responded: "For not giving me your

name." Sheehy, a retired state trooper, told her she did not have

the authority to arrest him for failure to provide his name. 

Officer Quinn's partner then told Sheehy that he was being arrested

for being a disorderly person.  Sheehy asked how he could be a

disorderly person in his own yard and added, "What constitutes

being disorderly, I haven't opened my mouth."  Officer Quinn's

partner responded, "Failure to give your name."  

  Sheehy was handcuffed and taken to the police station

where he was charged with assault and battery with a dangerous

weapon and being a disorderly person.  Sheehy pled not guilty at

his arraignment.  At a pretrial conference, the district attorney

refused to prosecute and the charges were dismissed.

  Sheehy then filed suit in Massachusetts state court

against Officer Quinn and the town of Plymouth, pursuant inter alia

to 42 U.S.C.  1983, alleging that his arrest was in violation of

the Fourth Amendment because Officer Quinn did not have probable

cause to arrest him for disorderly conduct or assault and battery

with a dangerous weapon.  The case was subsequently removed to the

federal district court for the District of Massachusetts.  After

removal, Officer Quinn filed a motion for summary judgment,

claiming that she was entitled to qualified immunity.  The district

court agreed, adopting the related crimes defense.  The district

court concluded that Officer Quinn had probable cause to arrest

Sheehy for simple assault and battery, and further concluded that

assault and battery and the crime charged at the police station

(i.e., assault and battery with a dangerous weapon) were clearly

related.   The district court entered a summary judgment against

Sheehy on his one federal claim under 42 U.S.C.  1983 and remanded

the remaining state law claims for disposition in the state court.

Sheehy now appeals.   

                              II.

  The district court's entry of summary judgment is

reviewed de novo.  See Vargas-Badillo v. Diaz-Torres, 114 F.3d 3,

5 (1st Cir. 1997).  We consider whether "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to a

judgment as a matter of law."  Fed. R. Civ. P. 56(c).  We review

the record in a light most favorable to the party opposing the

summary judgment and we will indulge in all reasonable inferences

in that party's favor.  See Rivera v. Murphy, 979 F.2d 259, 261

(1st Cir. 1992).  Where there is no 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." Id.

  Generally, government officials performing discretionary

functions (such as arrests) are shielded from civil damages so long

as their conduct "does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."  Vargas-Badillo, 114 F.3d at 5 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).  In evaluating the officer's

conduct in question, we do not focus on the "official's subjective

state of mind, such as bad faith or malicious intention . . . ." 

Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985).  "The Harlow

standard requires that we make an objective analysis of the

reasonableness of conduct in light of the facts actually known to

the officer and not consider the individual officer's subjective

assessment of those facts.  Nor are actual motives for conduct to

be considered in evaluating a qualified immunity defense."  Id. at

6.   

  Where an arrest is "challenged as unsupported by 

probable cause [it] is deemed 'objectively reasonable' unless

'there clearly was no probable cause at the time the arrest was

made.'" Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (quoting

Floyd, 765 F.2d at 5).  Probable cause to arrest exists where "the

facts and circumstances within [the police officer's] knowledge and

of which [she] had reasonably trustworthy information were

sufficient to warrant a prudent [person] in believing that the

[arrestee] had committed or was committing an offense."  Rivera,

979 F.2d at 263 (quoting United States v. Figueroa, 818 F.2d 1020,

1023 (1st Cir. 1987)). "Probable cause is to be determined based on

'the collective knowledge and information of all the officers

involved.'" See United States v. Bizier, 111 F.3d 214, 217 (1st

Cir. 1997) (quoting United States v. Paradis, 802 F.2d 553, 557

(1st Cir. 1986)).  

  Several circuits have held that "even where there is no

probable cause to arrest the plaintiff for the crime charged, proof

of probable cause to arrest the plaintiff for a related offense is

also a defense which may entitle the arresting officer to qualified

immunity."  Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997); see

Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1998) ("[E]ven if

probable cause does not exist for the crime charged, proof of

probable cause to arrest the plaintiff on a closely related charge

is also a defense."); United States v. Rambo, 789 F.2d 1289, 1294

(8th Cir. 1986) ("Where a defendant is arrested for the wrong

offense, the arrest is still valid if probable cause existed to

arrest the defendant for a closely related offense.").  The related

crimes defense asks "whether the conduct that served as the basis

for the charge for which there was no probable cause could, in the

eyes of a similarly situated reasonable officer, also have served

as the basis for a charge for which there was probable cause."

Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982).  In Trejo,

although the court agreed that the police officer did not have

probable cause to arrest the plaintiff for disorderly conduct for

the plaintiff's refusal to identify himself to the police officer,

that same conduct could have supported an arrest for violating a

statute that required a person to respond to a request for

identification.  Therefore, a jury should have been able to decide

whether a reasonable officer would have believed he had probable

cause to arrest the plaintiff for a crime related to the crime

offered as the justification for the arrest.  See id.

  Our reading of the cases suggests that "relatedness" has

two requirements.  First, the crime with which the arrestee is

charged and the crime offered to the court as a justification for

the arrest must relate to the same conduct.  Second, as a corollary

of this first requirement, the two crimes must share similar

elements or be directed generally at prohibiting the same type of

conduct.  See generally Avery, 110 F.3d at 14-15; Trejo, 693 F.2d

at 485-86. These requirements prevent the "ex post facto

extrapolations of all crimes that might have been charged on a

given set of facts at the moment of the arrest . . . ." Richardson

v. Bonds, 860 F.2d 1427, 1431 (7th Cir. 1988). The related crimes

defense, thus understood, "allows the arresting officer to choose

which crime she will charge without having to charge every single

offense sustainable on the facts, and yet does not open the door to

the extrapolation of offenses in an effort to justify a sham

arrest." Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993)

(internal quotation marks omitted).

  The related crimes defense is consistent with the

teachings of Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982),

which rejected an inquiry into a government official's subjective

motivations and intentions and defined the limits of qualified

immunity in objective terms.  An officer's erroneous legal

description of the basis for an arrest should not expose the

officer to liability if another officer would have concluded that

there was probable cause to arrest for a related offense on the

basis of the same conduct.  We agree that courts should not "make

constitutional questions turn on the term chosen by police officers

to describe their activity - officers who are accustomed to the

vernacular of the police station and unschooled in the accepted

constitutional vocabulary . . . ."  Ralph v. Pepersack, 335 F.2d

128, 134 (4th Cir. 1964).  Instead, we should consider whether the

conduct in question would allow a reasonable officer to conclude

that probable cause existed to arrest for the related crime offered

as justification.  See Biddle, 992 F.2d at 676-77 (collecting

cases).  We therefore adopt the related crimes defense in this

circuit.

  In the usual case involving the related crimes defense,

the crime or crimes formally charged are identical to those cited

by the officer at the time of the arrest.  Thus, there is usually

no need to ask whether the related crimes analysis should focus on

the conduct underlying the crime cited by the officer at the time

of the arrest or, instead, the conduct underlying the crime cited

a short time later at the police station.  The crimes are the same. 

Here that question must be asked because Officer Quinn said at the

scene that she was arresting Sheehy for being a disorderly person

in his interaction with her, but later at the police station he was

also charged with assault and battery with a dangerous weapon

because of his altercation with Baker.  The district court

concluded that it was appropriate to analyze the conduct underlying

the assault and battery with a dangerous weapon charge lodged at

the police station in applying the related crimes defense.  We

disagree.

  When Officer Quinn arrived at the scene, she first

interviewed Baker.  He informed Officer Quinn that Sheehy had

assaulted him.  Officer Quinn then went across the street to

continue her investigation in Sheehy's driveway.  When Sheehy

refused to cooperate, Officer Quinn arrested him for disorderly

conduct on the basis of his conduct in the driveway.  The record

makes clear that Sheehy's interaction with Officer Quinn was the

sole basis for the arrest.  It was only later, at the police

station, that Officer Quinn also charged Sheehy with both

disorderly conduct and assault and battery with a dangerous weapon. 

In other words, the additional charge at the police station had

nothing to do with the conduct for which Sheehy was actually

arrested -- his conduct in the driveway.  The arrest charge and the

charge lodged at the police station pertained to distinct events

involving Sheehy's conduct with different people.

  Although we are mindful that qualified immunity "gives

ample room for mistaken judgments," Rivera, 979 F.2d at 263,

Officer Quinn did not merely give an erroneous legal description of

the conduct she was witnessing or overlook an offense applicable to

that conduct.  Instead, following the arrest, Officer Quinn relied

at the police station on prior conduct of Sheehy that unmistakably

did not serve as the basis for the challenged arrest.  Allowing

such reliance would "open the door to the extrapolation of offenses

in an effort to justify a sham arrest."  Biddle, 992 F.2d at 677

(internal quotation marks omitted).  We will not permit it.  

  Our decision in Santiago v. Fenton, 891 F.2d 373 (1st

Cir. 1989), supports our conclusion that Officer Quinn may not

offer the later charge at the police station to support her

qualified immunity defense.  In Santiago, the plaintiff was engaged

in a snowball fight with his friends when he hit an unmarked police

car.  The plaintiff and his friends ran off.  The officer followed

the boys briefly, but then gave up.  See id. at 377.  Later, the

police officer was in a nearby apartment complex and overheard the

boys discussing the incident.  See id.  At that point, the officer

grabbed the plaintiff and an altercation ensued between the

plaintiff and several officers. The plaintiff pushed the officers

and made loud and obscene noises.  The officers placed the

plaintiff under arrest and he was transported to the police

station, where he was charged with a misdemeanor offense of being

a disorderly person for allegedly shouting at the officers.  See

id. at 377, 383.

  Santiago sued the officers pursuant to 42 U.S.C.  1983. 

The officers argued that they were entitled to qualified immunity

because, even in the absence of probable cause for the disorderly

conduct charge relating to the incident in the apartment complex,

they had probable cause to arrest for the earlier snowball

incident.  See id. at 383.  Although we did not discuss the related

crimes defense in Santiago, we rejected the officers' claim, noting

that the officers had unambiguously testified that the snowball

incident had nothing to do with the arrest, and that the plaintiff

was arrested for striking and pushing the officers in the apartment

building. See id. at 383.  We would not permit the officers to

validate the arrest retroactively based on earlier conduct that

unmistakably did not serve as the basis for the challenged arrest. 

We have made the same judgment in this case.

  In its grant of summary judgment for Officer Quinn, the

district court questioned whether our analysis of qualified

immunity in Santiago v. Fenton could be reconciled with the related

crimes defense.  We see no conflict.  Contrary to the suggestion of

the district court, our reliance on the testimony of the officers

about the basis for the arrest in Santiago does not implicate the

officers' subjective motivations for arresting the plaintiff, nor

does it condition the availability of the immunity defense on the

legal correctness of the criminal charge articulated by the

officers in describing the conduct that prompted their arrest

decision.  We used the statements of the officers in Santiago about

the basis for the arrest as objective indicators of the conduct

underlying the arrest in order to understand which of two discrete

incidents prompted the arrest.  Without such an inquiry, we could

not have known which facts to consider in determining whether the

arrest was made pursuant to probable cause. We have used the

statements of Officer Quinn and her partner about the basis for the

arrest of Sheehy in the same fashion. 

                               III.

  The district court used the assault and battery with a

dangerous weapon charge, lodged at the police station, as the basis

for its conclusion that Officer Quinn had probable cause to arrest

Sheehy for the related offense of assault and battery.  Thus the

court did not consider whether Officer Quinn clearly did not have

probable cause to arrest Sheehy for disorderly conduct, the stated

basis for the arrest.  Given our rejection of the court's

application of the related crimes defense to the charge lodged at

the police station, we must consider whether Officer Quinn had

probable cause to arrest Sheehy for the crime of disorderly

conduct.

  Sheehy was charged with a violation of Mass. Gen. Laws

ch. 272,  53, which makes it a crime to be an "idle and disorderly

person[]." A person is disorderly under the statute "if, with

purpose to cause public inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, he: (a) engages in fighting or

threatening, or in violent or tumultuous behavior . . . or (c)

creates a hazardous or physically offensive condition by any act

which serves no legitimate purpose of the actor."  Commonwealth v.

Feigenbaum, 536 N.E.2d 325, 327 (Mass. 1989) (quoting Alegata v.

Commonwealth, 231 N.E.2d 201, 211 (Mass. 1967)).  The conduct to

which the statute applies has been described with some specificity:

    [T]he type of conduct which the disorderly

  person provision of  53 reaches is that

  conduct which by its very nature involves the

  use of physical force or violence or any

  threat to use such force or violence if that

  threat is objectively possible of immediate

  execution.  Also covered is "tumultuous

  behavior," which while perhaps not physically

  violent, may nevertheless be characterized as

  involving riotous commotion and excessively

  unreasonable noise so as to constitute a

  public nuisance.  Conduct which creates a

  condition of physical menace to others is also

  reached . . . .



Commonwealth v. A Juvenile, 334 N.E.2d 617, 628 (Mass. 1975)

(citations omitted).  That description permits no argument that a 

refusal to give one's name to a police officer is disorderly

conduct.

  When a defendant moves for summary judgment on qualified

immunity grounds, "we must credit the plaintiff's version of

defendants' actions to the extent that plaintiff has appropriately

supported his version."  Amsden v. Moran, 904 F.2d 748, 752-53 (1st

Cir. 1990).  In Sheehy's deposition he explained that Officer Quinn

asked him his name, but he refused to tell her since he had already

given another officer the information.  He testified that she once

again demanded that Sheehy provide her with his name or she would

place him under arrest.  Sheehy refused and put out his hands.

Officer Quinn arrested him.  On Sheehy's version of the facts, he

demonstrated no conduct that could be considered "disorderly"   he

did not act with or threaten force or violence, his behavior was

not "tumultuous," and he did not create a physical menace to

others.

  Therefore, on the basis of this record, Officer Quinn

should not have been granted summary judgment.  If a jury were to

believe Sheehy's version of events, it reasonably could find that

Officer Quinn clearly did not have probable cause to arrest him for

disorderly conduct.  According to Officer Quinn, however, Sheehy

not only refused to give his name, but also paced around in an

agitated fashion when she tried to talk to him, displayed

aggressive body language, and advanced toward her "in a very

threatening manner." A jury believing that version of the facts

could reasonably conclude that it was not clear that Officer Quinn

lacked probable cause to arrest Sheehy for disorderly conduct.  We

must therefore vacate the judgment of the district court and

remand.

  Judgment vacated.  Remanded for further proceedings.