Shibley v . Begin CV-096-267-SD 03/26/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mark P. Shibley
v. Civil N o . 96-267-SD
J.P. Begin, et a l .
O R D E R
In this civil rights action brought pursuant to 42 U.S.C. § 1983 plaintiff Mark Shibley requests damages from the defendants, Officer J.P. Begin and the City of Manchester. Shibley’s complaint relates to an incident that began with emergency personnel responding to a 911 call reporting a suspected overdose by Shibley’s roommate, and ended with Shibley being sprayed with pepper spray and arrested for disorderly conduct. Shibley’s original complaint included claims for constitutional violations under § 1983 and a compendium of tort claims against three police officers, ambulance personnel, and the City of Manchester. Shibley has voluntarily dismissed some of the defendants and some of the complaints. The remaining claims are § 1983 claims against Officer Begin alleging unreasonable search and seizure and the use of excessive force in violation of the Fourth and Fourteenth Amendments, and tort claims against Officer Begin and the city of Manchester for wrongful arrest, malicious prosecution, intentional infliction of emotional distress, wrongful detention, assault, and battery. Well after the
deadline for dispositive motions, defendants filed a motion for
summary judgment. Because defendants’ motion raised the issue of
qualified immunity, which should be resolved before trial
whenever possible, the court allowed the motion to be filed over
plaintiff’s objection. Presently before the court is Defendants’ Motion for Summary Judgment to which Shibley objects.
Background
On June 6, 1993, Marina Oliszczak, who was living with Shibley at the time, called a drug counseling center. During her conversation with the counselor, M s . Oliszczak sounded despondent and indicated that she had taken valium in excess of the prescribed dose. Believing she was suicidal, the counselor put M s . Oliszczak on hold and called 911.
The Manchester Fire Department was first to respond to the call. According to Shibley, M s . Oliszczak went down the stairs from their second story apartment and met the fire fighters in the lobby of the building. After M s . Oliszczak told the fire fighters that she did not need assistance, they left. As they were leaving, two paramedics and Officer Begin arrived. Shibley met them at the first floor doorway that lead to his apartment. According to Shibley, when Officer Begin attempted to enter the
2 apartment Shibley asked him if he could enter without a warrant. Officer Begin tried to push the door open, but Shibley attempted to push it shut from the other side. Officer Begin then asked Shibley if he was refusing entry, and Shibley again asked whether he needed a search warrant. According to Shibley, Officer Begin did not respond verbally, but without warning twice sprayed him in the face with pepper spray.
After being sprayed, Shibley climbed the stairs to his apartment and began to rinse his face in the kitchen sink. Officer Begin and the paramedics entered behind him. Officer Begin handcuffed Shibley from behind while he was rinsing his face and pushed his head into the sink. Officer Begin then escorted Shibley outside and allegedly slammed Shibley against the trunk of the police car. Although she maintained that she did not take an overdose, the paramedics took M s . Oliszscak to Eliot Hospital on the advise of the drug counselor who believed Oliszscak was a danger to herself.
Shibley was charged with disorderly conduct, but the Manchester District Court dismissed the case.
3 Discussion
1 . Standard for Summary Judgment
“Summary judgment exists to ‘pierce the boilerplate of the
pleadings and assay the parties' proof in order to determine
whether trial is actually required.’” Nereida-Gonzalez v .
Delgado, 990 F.2d 7 0 1 , 703 (1st Cir. 1993) (quoting Wynne v . Tufts Univ. Sch. of Medicine, 976 F.2d 7 9 1 , 794 (1st Cir. 1992),
cert. denied, 507 U.S. 1030 (1993)). The entry of summary
judgment is appropriate when the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). To resolve a motion
for summary judgment, the court must scrutinize the entire record
in the light most favorable to the non-movant, with all reasonable inferences resolved in that party’s favor. See Smith
v . Stratus Computer, Inc., 40 F.3d 1 1 , 12 (1st Cir. 1994), cert.
denied, 514 U.S. 1108 (1995). “In general, . . . a party seeking
summary judgment [must] make a preliminary showing that no issue
of material fact exists. Once the movant has made this showing,
the non-movant must contradict the showing by pointing to
specific facts demonstrating that there i s , indeed, a trialworthy
issue.” National Amusements, Inc. v . Town of Dedham, 43 F.3d
4 731, 735 (1st Cir.) (citing Celotex Corp. v . Catrett, 477 U.S.
317, 324 (1986)), cert. denied, 515 U.S. 1103 (1995). “This
framework remains intact when qualified immunity issues are
presented despite the potential of such defenses, in other ways,
to ‘create strange procedural configurations.’" Nereida-
Gonzalez, supra, 990 F.2d at 703 (quoting Amsden v . Moran, 904 F.2d 7 4 8 , 752 (1st Cir. 1990)).
2 . Qualified Immunity
Although § 1983 on its face provides for no defenses or
immunities, the United States Supreme Court has held that
government officials, including law enforcement officers, who
perform discretionary functions are entitled to qualified
immunity from suit in civil rights actions under § 1983. See
Hegarty v . Somerset County, 53 F.3d 1367, 1372 (1st Cir.)
(quoting Harlow v . Fitzgerald, 457 U.S. 8 0 0 , 818 (1982)), cert.
denied, 116 S . C t . 675 (1995). Qualified immunity represents “an
attempt to balance competing values: not only the importance of
a damages remedy to protect the rights of citizens, but also ‘the
need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority.’” Harlow, supra, 457
U.S. at 807 (quoting Butz v . Economou, 438 U.S. 4 7 8 , 506 (1978)).
5 Before Harlow v . Fitzgerald, the qualified immunity test involved
both an objective and a subjective component. See 2 SHELDON
NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983
§ 8:1 (4th ed. 1997). In Harlow, however, the Court declared
that “bare allegations of malice should not suffice to subject
government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold 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.” Harlow, supra, 457 U . S . at 817-18.
Thus the first step in the qualified immunity test is for
the court to determine whether the right violated was clearly
established. Although most rights when cast in sufficiently general terms can be declared clearly established, the Supreme
Court has stated clearly that the qualified immunity question
must be addressed on a more fact-specific level. See Anderson v .
Creighton, 483 U . S . 635, 639-40 (1987). “The contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is
not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
6 held unlawful, but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.” Id. at 640 (citations
omitted). After determining the contours of the right, the court
must determine whether a reasonable officer should have under-
stood that his or her conduct violated that right.
The issue of qualified immunity is a question of law to be decided by the court at the earliest possible stage of the
litigation. See Hunter v . Bryant, 502 U . S . 2 2 4 , 227 (1991);
Hegarty, supra, 53 F.3d at 1373-74. However, “[i]f . . . the
trial court on summary judgment motion finds that there are
genuine issues of material fact in dispute and that these issues
preclude a decision on the qualified immunity question, then it
denies summary judgment at that time. Thereafter, when the
parties have submitted all of their evidence at trial, the
defendant can move for directed verdict on qualified immunity grounds.” 2 NAHMOD, supra, § 8:22. If there are still disputed
issue of fact, the court may submit the fact questions to the
jury, reserving the issue of qualified immunity for the court.
The court, however, “may . . . bypass the qualified immunity
analysis if it would be futile because current law forecloses the
claim on the merits.” Aversa v . United States, 99 F.3d 1200,
1215 (1 st Cir. 1996). In this case, as discussed below, the
court need not reach the qualified immunity defense to
7 plaintiff’s counts I and II because these claims are foreclosed
on the merits.
a . Count I
Shibley’s Count I alleges that Officer Begin’s entry into
his apartment was an illegal search in violation of the Fourth
Amendment.1 See U.S. Const. amend. IV. It is well established
that “[t]he Fourth Amendment proscribes all unreasonable searches
and seizures, and it is a cardinal principle that ‘searches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth
Amendment–subject only to a few specifically established and
well-delineated exceptions.’” Mincey v . Arizona, 437 U.S. 385,
390 (1977) (quoting Katz v . United States, 389 U.S. 3 4 7 , 357
(1967)). One such exception allows officers to enter a residence
in exigent circumstances such as “an imminent threat to the life
or safety of members of the public, the police officers, or a
person located within the residence.” McCabe v . Life-Line
Ambulance Service, 77 F.3d 5 4 0 , 545 (1st C i r . ) , cert. denied, 117
1 The Fourth Amendment provides: “The 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.”
8 S . C t . 275 (1996); see also Mincey, supra, 437 U.S. at 392
(“Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe
that a person within is in need of immediate aid.”).
Generally, the test to determine whether exigent circum-
stances justify a warrantless entry looks at “‘whether there is such a compelling necessity for immediate action as will not
brook the delay of obtaining a warrant.’” United States v .
Wihbey, 75 F.3d 7 6 1 , 766 (1st Cir. 1996) (quoting United States
v . Wilson, 36 F.3d 205, 209 (1st Cir. 1994)). The determination
of exigent circumstances turns “upon the objective reasonableness
of ad hoc fact specific assessments.” McCabe, supra, 77 F.3d at
545. The court must keep in mind that “[t]hese cases do not
arise in the calm which pervades a courtroom or library.” Wayne
v . United States, 318 F.2d 205, 211 (D.C. C i r . ) , cert. denied, 375 U.S. 860 (1963). “As Chief Justice (then Judge) Burger
stated in his oft-quoted opinion in Wayne v . United States: ‘[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. . . . [T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die
9 in emergencies if police tried to act with the calm deliberation associated with the judicial process.’ 3 WAYNE L A F A V E , SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §
6.6(a), at 391 (3d ed. 1996) (quoting Wayne, supra, 318 F.2d at
212).
The plaintiff asserts that to justify Begin’s entry under
exigent circumstances, the defendant “must establish that there
was no other way to address this emergency short of the
warrantless entry.” Memorandum of Law in Support of Plaintiffs
[sic] Objection to Motion for Summary Judgment at 5 . The court,
however, is not persuaded that this is an accurate statement of
the law. Nowhere in the case law on the emergency exception to
the warrant requirement has the Supreme Court or the First
Circuit declared that there must have been no other alternative.
Indeed, in the very case cited by the plaintiff in support of
this proposition, the court found the officers’ warrantless entry
reasonable despite the plaintiff’s evidence of alternatives. See
Hegarty, supra, 53 F.3d at 1377 (“[W]e do not determine which of
these strategies represented the more prudent course or posed the
least serious risk to the suspect. . . . Rather, we consider
only whether a competent police officer in these circumstances
reasonably could have opted for an unannounced approach. . . . ” ) .
Requiring officers to determine that there were no other means of
handling an emergency would be overly burdensome. The law does 10 not require police officers to identify and assay every possible
course of action before responding to an emergency. “People
could well die in emergencies if police tried to act with the
calm deliberation associated with the judicial process.” Wayne,
supra, 318 F.2d at 212. Of course, the existence of alternative
means for handling a situation may aid evaluation of the reasonableness of the entry. As long as the officer’s actions
were reasonable, however, the court will not invalidate a search
because it was not the best or only alternative.
In this case, the court must grant summary judgment if Begin
reasonably could have concluded, based on the facts known to him
at the time, that “a person within [was] in need of immediate
aid.” Mincey, supra, 437 U.S. at 392. An emergency call to 911
certainly supports a reasonable belief that an emergency exists.2
See Wilson v . San Francisco, N o . C-95-2165MMC, 1996 WL 134919, at *2 (N.D. Cal. March 1 8 , 1996) (holding that as a matter of
policy, responding officers must not be deterred from treating
911 calls as emergencies); United States v . Warden, 886 F. Supp.
2 The court suspects plaintiff’s argument that Officer Begin was obliged to investigate the source of the 911 call and seek independent verification before responding to be disingenuous. See Michigan v . Tyler, 436 U.S. 499, 509 (1978) (“[I]t would defy reason to suppose that firemen must secure a warrant . . . before entering a burning structure to put out the blaze.”). When an emergency call reports a threat to someone’s safety, it would be absurd to suggest emergency personnel should begin investigating the source of the call rather than responding to the emergency.
11 813, 817 (D. Kan. 1995). Based on the dispatch he received,
Begin had reason to believe someone’s life was in imminent
danger. The question here, however, is whether subsequent
information undermined the reasonableness of this belief. The
parties’ versions of what occurred once the emergency personnel
arrived at the plaintiff’s apartment diverge somewhat. Both sides, however, agree that the fire department was the first to
arrive on the scene, and that the fire fighters were leaving as
Officer Begin and the paramedics arrived. Even assuming the
firefighters had spoken with M s . Oliszczak, she had assured them
she did not need assistance, and Officer Begin was aware of this,
he still could have believed that a potentially suicidal
individual’s assurances were not particularly trust-worthy. In
an analogous situation, the United States Court of Appeals for
the Second Circuit held that a police officer responding to a 911 call reporting a domestic dispute was reasonable in entering the
house and searching for victims or perpetrators despite the fact
that one of the putative victims told the officer that no one
needed assistance and asked him to leave. See id. at 198; see
also United States v . Brown, 64 F.3d 1083, 1086 (7th Cir. 1995)
(“We do not think that the police must stand outside an
apartment, despite legitimate concerns about the welfare of the
occupant, unless they can hear screams.”). Thus, mindful of
12 “‘the need for a prompt assessment of sometimes ambiguous
information concerning potentially serious con-sequences,’” the
court finds that Begin could have reasonably believed someone
inside the apartment was in need of immediate assistance.
Tierney v . Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (quoting 3
L A F A V E , supra, § 6.6(a), at 3 9 1 ) . Furthermore, Officer Begin did not conduct a broad reaching
search of the apartment. When a search is warranted by exigent
circumstances, it must be strictly circumscribed. See Mincey,
supra, 437 U . S . at 393. Thus, courts have disapproved searches
purportedly made pursuant to the emergency exception when the
search overreaches what is necessary. See 3 WAYNE L A F A V E , supra,
§ 6.6(a), at 401. In this case, the fact that Officer Begin did
not conduct an extensive search of the apartment supports the
conclusion that the warrantless search was reasonable.
b . Count I I
Once an officer has lawfully entered a home, he or she may
effect an otherwise lawful arrest. See Sheik-Abdi v . McClellan,
37 F.3d 1240, 1245 (7th Cir. 1994). Count I I of Shibley’s
complaint, however, alleges that his arrest violated the Fourth
Amendment, which requires probable cause before an officer may
make a warrantless arrest. See Logue v . Dore, 103 F.3d 1040,
13 1044 (1st Cir. 1997). “[P]robable cause to make an arrest exists
if–and only if–the facts and circumstances of which the arresting
officer has knowledge are sufficient to lead an ordinarily
prudent officer to conclude that an offense has been, is being,
or is about to be committed, and that the putative arrestee is
involved in the crime’s commission.” Logue, supra, 103 F.3d at 1044. According to Shibley, his arrest was illegal because no
reasonable officer could have believed probable cause existed to
arrest him for disorderly conduct, an offense that only applies
to conduct performed in a public place. See New Hampshire Rev.
Stat. Ann. § (“RSA”) 644:2. The defendants, however, argue that
Officer Begin arrested Shibley intending to charge him with
obstructing government administration. See RSA 642:1. Thus,
before considering probable cause, the court must determine for
which offense probable cause was required. The question, therefore, is whether the Fourth Amendment requires the court to
decipher the officer’s intent when he made the arrest to
determine for which offense Shibley was really arrested, or
whether probable cause to arrest for any offense will make the arrest legal.3
3 New Hampshire law provides that “[i]f a lawful cause of arrest exists, the arrest will be lawful even though the officer charges the wrong offense or gave a reason that did not justify the arrest.” RSA 594:13. Thus, this question requires the court indirectly to examine the constitutionality of this provision.
14 In general, the United States Supreme Court has emphasized
the objective nature of the Fourth Amendment inquiry. In Terry
v . Ohio, the Supreme Court held that a test based on good faith
could not provide adequate protection from unreasonable searches
and seizures. See 392 U.S. 1 , 22 (1968). In assessing
reasonableness, the Court declared, “it is imperative that the facts be judged against an objective standard . . . .” Id. at
21. While, Terry, stands for the proposition that good faith
cannot immunize objectively unreasonable conduct, it did not
address the repercussions of bad intent. In Scott v . United
States, however, the Court considered whether a lack of good
faith could invalidate otherwise reasonable conduct. See 436
U.S. 1 2 8 , 136-37 (1978). The Scott Court concluded that
“subjective intent alone . . . does not make otherwise lawful
conduct illegal or unconstitutional.” Id. at 136. Scott, however, did not completely preclude application of a subjective
component to the Fourth Amendment analysis. The Court explained
that “in evaluating alleged violation of the Fourth Amendment the
Court has first undertaken an objective assessment of an
officer’s actions . . . .” Id. at 137 (emphasis added). Thus,
Scott did not foreclose the possibility that in some cases, after
applying an objective test, courts might properly impose a
further subjective analysis.
15 In subsequent Fourth Amendment cases, however, the Supreme
Court seemed to eschew subjective inquiries, emphasizing the
importance of employing an objective standard. For instance, in
Maryland v . Macon, the Court considered a claim that an
unreasonable seizure took place when an officer, without a
warrant, purchased some magazines with a marked bill he later
confiscated. See 472 U.S. 463, 465-66 (1985). The Court
rejected the contention that the officer’s intent to retrieve the
money transformed the sale into a seizure, stating “whether a
Fourth Amendment violation has occurred ‘turns on an objective
assessment of the officer’s action in light of the facts and
circumstances confronting him at the time,’ and not on the
officer’s actual state of mind at the time the challenged action
was taken.” Macon, supra, 472 U.S. at 470-71 (quoting Scott,
supra, 436 U.S. at 1 3 6 ) . Similarly, when examining a claim of
excessive force under the Fourth Amendment, the Court stated, “An officer’s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will
an officer’s good intentions make an objectively unreasonable use
of force constitutional.” Graham v . Connor, 490 U.S. 386, 397
(1989). The Court’s use of a strictly objective standard is
based both on the evidentiary problems associated with proving
state of mind and fairness concerns. See Massachusetts v .
16 Painten, 389 U.S. 5 6 0 , 565 (1968) (White, J. dissenting from
dismissal of cert. as improvidently granted) (“sending state and
federal courts on an expedition into the minds of police officers
would produce grave and fruitless misallocation of judicial
resources.”); Horton v . California, 496 U.S. 1 2 8 , 138 (1990)
(“Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that
depend upon the subjective state of mind of the officer.”).
The Court directly considered the role of intent in the case
of warrantless seizures in Whren v . United States, 116 S . C t .
1769 (1996). In Whren, the Court considered whether a stop for a
traffic violation could violate the Constitution if the purported
purpose of the stop was really a pretext. See Id. at 1773.
Before Whren, the circuits had been split over whether courts
should apply the “would test” or the “could test” to such cases. The petitioner in Whren advocated the “would test,” arguing “the
Fourth Amendment test for traffic stops should b e , not the normal
one . . . of whether probable cause existed to justify the stop;
but rather, whether a police officer, acting reasonably, would
have made the stop for the reason given.” Id. The Court,
however, rejected this argument adopting instead the “could
test.” Thus, the Court held that the stop was proper provided a
reasonable officer could have deduced probable cause. In
17 rejecting Whren’s argument, the Court emphasized the importance
of a strictly objective test. See id. at 1775. According to the
Court, “Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.” Id. at 1774. The Court also
rejected the petitioner’s attempt to frame the “would test” as an
objective test. Unlike the objective test favored by the Court, this test could create inconsistent results. Thus, the Court
emphasized, “the Fourth Amendment’s concern with ‘reasonableness’
allows certain actions to be taken in certain circumstances,
whatever the subjective intent.” Id. at 1775 (emphasis in
original).
Despite this emphasis on a completely objective standard,
the Supreme Court’s Fourth Amendment jurisprudence is not without
references to subjective considerations, especially in cases
allowing searches with less than probable cause. For instance, although the Court has allowed officers routinely to search
belongings in police possession to inventory them, cases
upholding such searches have suggested that the absence of
pretext is a relevant consideration. See e.g., Florida v . Wells,
495 U.S. 1 , 4 (1990) (“an inventory search must not be used as a
ruse for a general rummaging in order to discover incriminating
evidence”); Colorado v . Bertine, 479 U.S. 3 6 7 , 372 (1987) (“In
the present case, . . . there was no showing that the police
18 . . . acted in bad faith or for the sole purpose of investi-
gation.”); South Dakota v . Opperman, 428 U.S. 3 6 4 , 376 (1976)
(“there is no suggestion whatever that this standard procedure
. . . was a pretext concealing an investigatory police motive”).
Similarly, when evaluating an administrative search, the Court
considered whether the search appeared to be “a ‘pretext for obtaining evidence of . . . violation of . . . penal laws.” New
York v . Burger, 482 U.S. 6 9 1 , 716-17 n.27 (1987); see also Abel
v . United States, 362 U.S. 217 (1960) (“The deliberate use by the
Government of an administrative warrant for the purpose of
gathering evidence in a criminal case must meet stern resistance
by the courts.”). Thus, in these cases, the Court has required
officers conducting searches on less than probable cause to
adhere in good faith to standard operating procedures. The Whren
Court, however, dismissed these cases as inapposite to cases involving searches based upon probable cause. See Whren, supra,
116 S . C t . at 1773.
Although the Supreme Court has now squarely addressed the
issue of pretext in Fourth Amendment seizures, it has not dealt
with the issue presented in this case. Other courts, however,
have held that as long as probable cause exists for any offense
based upon the facts known to the officer at the time, an arrest
is reasonable. See e.g., United States v . Cervantes, 19 F.3d
19 1151, 1153 (7th Cir. 1994), cert. denied, 513 U.S. 1086 (1995);
United State v . Kalter, 5 F.3d 1166, 1168 (8th Cir. 1993); United
States v . Hawkins, 811 F.2d 2 1 0 , 215 (3d C i r . ) , cert. denied, 484
U.S. 833 (1987). For instance in Kalter, the officers stopped
Kalter for a traffic violation. See 5 F.3d at 1167. Upon
approaching the vehicle, they observed a rifle on the rear seat. Id. The officers then arrested Kalter for “‘unlawful use of a
weapon.’” Id. at 1168. Because, unbeknownst to the officers,
Kalter was a felon, he was later convicted of being a felon in
possession of a firearm. Id. Kalter, however, argued that the
officers did not have probable cause to arrest him because the
statute they arrested him for violating prohibited an individual
from “‘[c]arr[ying] concealed upon or about his person . . . a
firearm.” Id. Although the court found that Kalter’s weapon was
not in fact concealed and it did “not determine how these officers concluded that they had probable cause to arrest
Kalter,” it nonetheless held that there was probable cause to
arrest on the basis of a city ordinance that provided “a person
shall not carry a firearm ‘beyond the property limits of his
residence or business premises in the city unless the firearm
. . . is unloaded and secured in a locked container or in a case,
or is sealed in its original delivery carton.’” Id. The court
stated that the proper inquiry was “whether a prudent person
20 . . . who observed what these officers saw, could have believed
that Kalter had committed or was committing a crime at the time
of his arrest.” Id. The court held that because “it is obvious
that a reasonable person could have believed Kalter had violated
the . . . ordinance,” the officers had probable cause to arrest
him. Id. In an opinion that predated Whren the United States Court of
Appeals for the First Circuit decided a case in which the
officers arrested the suspect for an offense for which probable
cause was absent although there was probable cause to arrest the
suspect for a different offense. See Santiago v . Fenton, 891
F.2d 373, 386-87 (1st Cir. 1989). The Santiago court held that
the officers could not “be granted qualified immunity based on
action that they could have, but did not take.” Id. at 387.
Santiago, however, is distinguishable from this case. In Santiago, the offense for which the officers arrested the
plaintiff and the offense for which they argued there was
probable cause were based upon different underlying acts. See
id. Thus, the court was able to classify the arrest for one
offense and an arrest for the other offense as different acts.
In this case there was only one underlying act. The question,
thus, is whether attaching the wrong label to Shibley’s conduct
can invalidate the arrest.
21 This court believes that the approach adopted in cases such as Kalter is proper given the Supreme Court’s holding in Whren. “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren, supra, 116 S . C t . at 1775. Furthermore, considering for which offense Officer Begin “really” arrested Shibley would require a determination of the officer’s subjective intent, which would engender the evidentiary difficulties obviated by a purely objective standard. Such a test could also create inconsistent results. Thus, the arrest was legal if there was any offense for which an officer could have reasonably believed there was probable cause.
Shibley argues that Officer Begin did not have probable cause to arrest him for disorderly conduct because Shibley’s conduct was not performed in a public place. The statutory definition of “public place” includes “the lobbies or hallways of apartment buildings . . . .” RSA 644:2. However, the court need not decided whether Officer Begin could have reasonably, albeit mistakenly, concluded that Shibley was in a public place when he was standing in the doorway to his apartment because the court concludes that there was probable cause to arrest Shibley for obstructing government administration.
“A person is guilty of a misdemeanor if he uses force,
22 violence, intimidation or engages in any other unlawful act with
a purpose to interfere with a public servant . . . performing or
purporting to perform an official function. . . .” RSA 642:1.
In this case, the uncontested facts support a reasonable belief
that Shibley violated this statute. According to Shibley’s own
account of events, when Officer Begin attempted to enter the apartment Shibley resisted the officer’s efforts to open the door
by attempting to push the door shut. Thus, Shibley applied force
in an attempt to prevent Officer Begin from achieving his
objective. It is of no legal moment that Shibley believed
Officer Begin was not legally entitled to enter the apartment.
The statute clearly applies to officials merely “purporting to
perform an official function.” Id. Like New Hampshire’s law
against resisting arrest, which applies “regardless of whether
there is a legal basis for the arrest,” RSA 642:2, this provision reflects the legislature’s judgment that citizens should not
employ self help when they feel they are wronged by government
officials. See State v . Haas, 134 N.H. 4 8 0 , 484-85, 596 A.2d
127, 130 (1991). Thus, citizens are forbidden from interfering
even with officials acting illegally because the legislature has
decided it preferable “to have apparent differences between those
who wield the authority of government, and those who do not,
resolved in the courts or by some other orderly process, rather
23 than by physical confrontation on the street or in the gutter.”
Id. at 484.
c. Count III
Count III alleges that Begin violated Shibley’s constitu-
tional rights by spraying him with the pepper spray, pushing his
head into the sink as he was placing the handcuffs on him, and
slamming him against the police car. As an initial matter, the
court notes that although both parties address the use of force
as a violation of the Fourth Amendment’s prohibition of
unreasonable seizures, it is not clear that this is the
appropriate standard for analyzing Officer Begin’s use of pepper
spray. The Fourth Amendment plainly governs Shibley’s claims
that Officer Begin pushed his face into the sink and threw him
against the police cruiser since this standard clearly applies to
claims of excessive force that arise in the context of an arrest.
See Graham, supra, 490 U.S. at 394. The Supreme Court, however,
has “reject[ed] the notion that all excessive force claims
brought under § 1983 are governed by a single generic standard.”
Id. at 393. While the reasonableness standard of the Fourth
Amendment applies to force in the course of an arrest, stop, or
other seizure of the person, the Eighth Amendment applies to
prisoners’ claims of excessive force, and the Due Process Clause
24 of the Fourteenth Amendment prohibits the use of excessive force
against pre-trial detainees. In Landon-Rivera v . Cruz Cosme, for
instance, the First Circuit held that a hostage who had been shot
accidently by a police officer could not bring a claim under the
Fourth Amendment because he had not been seized. See Landon-
Rivera v . Cruz Cosme, 906 F.2d 7 9 1 , 795-96 (1st Cir. 1990). Rather, the court analyzed Landol’s claim under the Due Process
Clause of the Fourteenth Amendment. Id. Thus, to determine
whether the Fourth Amendment standard is applicable the court
must ascertain whether the force was used in the context of some
type of seizure of the person.
There are two broad categories of actions that amount to
seizures of the person under the Fourth Amendment. First, a
person is seized when he or she submits to a show of authority
that would lead a reasonable person to believe he or she was not free to leave. See California v . Hodari D., 499 U.S. 6 2 1 , 628-29
(1991). Second, a seizure may be effected through the use of
force when the authorities intentionally apply force for the
purpose of restraining the individual’s freedom of movement. See
Brower v . Inyo County, 489 U.S. 593, 596 (1989); Landol-Rivera,
supra, 906 F.2d at 795. If Officer Begin’s use of pepper spray
is to be analyzed under the Fourth Amendment at all it would have
to be because it constituted the second type of seizure.
25 “[A] Fourth Amendment seizure does not occur whenever there
is a governmentally caused termination of an individual’s freedom
of movement. . . .” Brower, supra, 489 U.S. at 596-97. The
Fourth Amendment is only implicated when force is intentionally
applied. See id.; Landol-Rivera, supra, 906 F.2d at 795. Thus,
in Landol-Rivera the First Circuit held that when a police officer accidently shot a hostage, the hostage was not seized
within the meaning of the Fourth Amendment. See supra, 906 F.2d
at 796. Furthermore, the force must be used in an attempt to
terminate the individual’s freedom of movement. Thus, in Brower,
the Supreme Court concluded that a seizure occurred because
“Brower was meant to be stopped by the physical obstacle of the
roadblock–and . . . he was so stopped.” Supra, 489 U.S. at 599.
Although the precedent could be read to mean that a seizure takes
place whenever force is intentionally applied, this court feels that that conclusion is not in accord with the applicable Supreme
Court precedents. The Supreme Court’s discussion of seizure of
the person through the use of force in both Hodari D. and Brower
started from the proposition that the force was used for the
purpose of arresting or stopping the subject. “‘An officer
effects an arrest of a person . . . by laying his hand on him for
the purpose of arresting him . . . .” Hodari D., supra, 499 U.S.
at 624 (quoting Whitehead v . Keyes, 85 Mass. 495, 501 (1862)).
26 Furthermore, if the intentional application of force in and of
itself amounted to a Fourth Amendment seizure, the Court’s
announcement that prisoners’ excessive force claims are governed
by the Eight Amendment, rather than the Fourth, would be
undermined. If all intentional uses of force were seizures, they
would all be governed by the Fourth Amendment. In this case, it is clear that Begin’s use of the pepper
spray amounted to intentionally applied force. The question,
however, is whether Officer Begin’s use of force was in the
context of the arrest. From the record currently before the
court it appears that Begin may have used the pepper spray to
gain immediate access to the second floor apartment. Thus,
whether Begin used the pepper spray in an attempt to arrest
Shibley or for some other purpose is a question of fact.
Normally such questions of fact, especially when they involve issues of intent, are issues for the jury. See Broderick v .
Roache, 996 F.2d 1294, 1299 (1st Cir. 1993). Because, however,
the defendants have raised the defense of qualified immunity,
this claim only need reach a jury if Officer Begin is not
entitled to qualified immunity under one or both of the
potentially applicable standards.
Under the Fourth Amendment standard, the court inquires
whether the officer’s use of force was objectively reasonable in
27 light of the facts confronting him or her at the time, without
reference to his or her underlying intention or motivation. See
Dean v . City of Worcester, 924 F.2d 3 6 4 , 367 (1st Cir. 1991).
The amount of force that is reasonable to make an arrest depends
on factors such as “‘the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of other officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.’” Id. at 368 (quoting
Graham, supra, 490 U.S. at 3 9 6 ) . Although “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment,” Graham, supra,
490 U.S. at 396, defendants’ suggestion that the absence of
physical injuries precludes a claim of excessive force is
incorrect. See Defendants’ Memorandum of Law in Support of
Defendants’ Motion for Summary Judgment at 7-8; Alexis v . McDonald’s Restaurants of Mass., 67 F.3d 3 4 1 , 353 n.11 (1st Cir.
1995) (“trialworthy ‘excessive force’ claim is not precluded
merely because only minor injuries were inflicted”).
In this case, Shibley was arrested for a misdemeanor. There
is no evidence that Shibley posed a threat to anyone’s safety as
he was washing his face when Officer Begin allegedly pushed his
face into the sink, and was already in handcuffs when Officer
Begin allegedly pushed him against the car. Furthermore, there
28 is no indication that Shibley was actively attempting to resist
arrest or escape. Given these circumstances, a reasonable
officer would have to conclude that in this situation more than a
modicum of force would violate the Fourth Amendment.
Under the Fourteenth Amendment, in contrast to the Fourth
Amendment focus on objective reasonableness, “government officials may be held liable . . . only if their conduct
‘reflect[ed] a reckless or callous indifference to an
individual’s rights.’” Landol-Rivera, supra, 906 F.2d at 796
(quoting Gutierrez-Rodriguez v . Cartagena, 882 F.2d 553, 559 (1st
Cir. 1989) (quoting Germany v . Vance, 868 F.2d 9, 18 (1st Cir.
1989))). To determine whether a use of force violates the Due
Process Clause of the Fourteenth Amendment courts consider “‘the
need for force and the amount of force used, the extent of injury
inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.’” Jones v . City of Dothan,
121 F.3d 1456, 1461 (11th Cir. 1997) (quoting Wilson v .
Northcutt, 987 F.2d 719, 722 (11th Cir. 1993)). Based upon
Shibley’s version of the facts, it appears that Officer Begin’s
use of force may have violated this standard. First, according
to Shibley, Begin sprayed him with pepper spray without warning
after Shibley responded to his request to enter the apartment by
29 asking him whether he needed a warrant.4 Based on this brief
encounter in which Officer Begin allegedly made no attempt
verbally to persuade Shibley to open the door and did not explain
why he needed to gain access to the apartment, there does not
reasonably appear to be any need for force, and thus the force
used appears grossly disproportionate. Furthermore, if the jury
believes Shibley’s version of events and concludes that force was
unnecessary, it could also reasonably conclude that Officer Begin
lacked good faith and that his use of force was malicious.5
Thus, because there are disputed issues of material fact,
which call into question whether Officer Begin is entitled to
qualified immunity, the defendants’ request for summary judgment
on Shibley’s excessive force claim must be denied. Of course,
after the factual issues are settled by trial, the court may
again examine the issue of qualified immunity.
4 Officer Begin’s version of the encounter differs considerably from Shibley’s account. 5 The court notes that the issue of how to apply the objective qualified immunity test to alleged constitutional violations with subjective components is unsettled. Although some circuits have applied a modified qualified immunity test to make it easier for officials to receive qualified immunity when the unconstitutionality of their conduct depends on motive, the First Circuit has not adopted such an approach. See Feliciano- Angulo v . Rivera-Cruz, 858 F.2d 4 0 , 46 (1st Cir. 1988). The Supreme Court recently heard a case that will resolve this issue. See Crawford-el v . Britton, 93 F.3d 813 (D.C. Cir. 1996), cert. granted, 117 S . C t . 2451 (1997).
30 3 . State Law Claims a. Wrongful Arrest and Wrongful Detention
The defendants move for summary judgment on Shibley’s common
law claim of wrongful arrest based on the assertion that Officer Begin’s conduct was lawful, and therefore justified. New Hampshire’s criminal code provides that “any conduct . . . is justifiable when it is authorized by law,” RSA 627:2, and another section of the code provides that conduct that is justified under the criminal code cannot serve as the basis for civil liability. See RSA 507:8-d. An arrest is lawful provided that any “lawful cause of arrest exists.” RSA 594:13. As discussed above, there was probable cause to arrest Shibley for obstruction of government administration. Thus, the court must grant summary judgment on Shibley’s wrongful arrest claim. Furthermore, since the arrest was made pursuant to law, Shibley’s detention was also lawful.
b . Malicious Prosecution
The defendants argue that the defendants enjoy absolute
immunity from Shibley’s malicious prosecution claim. The
absolute immunity that protects prosecutors traces its roots to
judicial immunity, which is absolute. Prosecutors, however, do
not receive absolute immunity solely based on their title. See
31 Kalina v . Fletcher, 118 S . C t . 5 0 2 , 510 (1997). The test for
absolute immunity is functional, focusing on the act and not the
actor. See Belcher v . Paine, 136 N.H. 1 3 7 , 1 4 4 , 612 A.2d 1318,
1323 (1992). Both the United States Supreme Court and the
Supreme Court of New Hampshire have relied on this functional
test, which focuses on the nexus between the conduct complained of and the judicial phase of the prosecution. Thus, police
officers have been granted absolute immunity when serving as a
witness at trial, and prosecutors have been held to be immune
from suits arising from their initiation of judicial proceedings
and presentation the state’s case. See Kalina, supra, 118 S . C t .
at 508; Briscoe v . LaHue, 460 U.S. 325, 345-46 (1983). On the
other hand, police officers are not absolutely immune from suits
alleging the officer illegally procured a warrant. See Malley v .
Briggs, 475 U.S. 335, 343 (1986). Similarly, prosecutors are not immune from suits arising from investigatory conduct.
In this case, the plaintiff’s claim seems to be based upon
Officer Begin’s decision to charge Shibley with disorderly
conduct. This act bears a closer relationship to the judicial
process than does the decision to get a warrant. Since a
prosecutor is absolutely immune from suits based on his or her
“initiation of the criminal process,” the court is persuaded that
Officer Begin should be similarly immune. Belcher, supra, 136
32 N.H. at 146, 612 A.2d at 1327; see also Albright v . Oliver, 510
U.S. 266, 279 n.5 (Ginsburg, J. concurring) (“focusing on the
police officer’s role in initiating and pursuing a criminal
prosecution . . . raises serious questions about whether the
police officer would be entitled to share the prosecutor’s
absolute immunity.”).
c. Intentional Infliction of Emotional Distress
The defendants ask for summary judgment on the plaintiff’s claims of intentional emotional distress. First, defendants argue the justification defense provided by RSA 627:2 precludes the plaintiff’s claim. Because Shibley’s arrest and detention were lawful, Officer Begin cannot be liable based upon these acts. As discussed above, however, Shibley has presented a triable issue as to whether the force Officer Begin employed was lawful. Officer Begin’s use of force may not be justified, and, thus, could form the basis for a claim of intentional infliction of emotional distress. Nevertheless, the defendants argue they are entitled to summary judgment on Shibley’s claim for intentional infliction of emotional distress because the
plaintiff has failed to present a colorable argument that Officer Begin’s conduct was extreme enough to support his claim.
New Hampshire’s Supreme Court explicitly recognized the tort
33 of intentional infliction of emotional distress, and has quoted
the Restatement (Second) of Torts approvingly. See Morancy v .
Morancy, 134 N.H. 493, 495-96, 593 A.2d 1158, 1159-60 (1991).
The Morancy court quoted the Restatement’s definition of
emotional distress, which provides: One who by extreme and outrageous conduct intention- ally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from i t , for such bodily harm.
Id. at 496, 593 A.2d at 1160. The Restatement provides that
conduct is outrageous when “the recitation of the facts to an
average member of the community would arouse his resentment
against the actor, and lead him to exclaim, ‘outrageous!’”
Restatement, supra, § 4 6 , comment d. Despite the defendants
representations to the contrary, there is a factual dispute
regarding the exchange between Officer Begin and Shibley. The
court believes that if Shibley’s version of the facts proves
true, a jury could find that spraying him in the face with pepper
spray without warning amounts to outrageous conduct. Thus, the
court will deny the defendants’ request for summary judgment on
this claim.
d. Assault and Battery
Defendants request summary judgment on Shibley’s assault and
34 battery claims based on justification. Under New Hampshire law,
“[a] law enforcement officer is justified in using non-deadly
force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest. . . .” RSA 627:5. This section creates an objective and subjective test. For his conduct to be justified, Officer Begin must have believed the force he used was necessary, and his belief must have been objectively reasonable. As discussed above, there are factual disputes about the circumstances surrounding Officer Begin’s use of force. Based upon Shibley’s version of events, a reasonable jury could find that Officer Begin’s use of force was objectively unreasonable. Thus, the court must deny the defendants request for summary judgment on this count.
Conclusion
For the abovementioned reasons, Defendants’ Motion for
Summary Judgment (document 37) is granted in part and denied in
part. The court orders judgment be entered for the defendants on
counts I , I I , V I , and IX. Summary judgment is denied as to
35 plaintiff’s counts I I I , V I I , and X .
SO ORDERED.
Shane Devine Senior Judge
March 2 6 , 1998
cc: H . Jonathan Meyer, Esquire Robert J. Meagher, Esquire