Soukup v. Garvin CV-09-146-JL 8/25/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
William Soukup
v. Civil No. 09-CV-146-JL Opinion No. 2010 DNH 154 Robert Garvin and the Town of Lisbon
O R D E R
This case challenges an arrest on bail violation and
disorderly conduct charges as lacking in probable cause and
otherwise invalid because the suspect was taken into custody,
rather than charged by summons. Based on these asserted defects
in his arrest--and despite the fact that it was supported by
warrants--William Soukup has sued the arresting officer, Robert
Garvin, and the Town of Lisbon, which employed him at the time,
claiming violations of the Fourth Amendment, actionable under 42
U.S.C. § 1983, and state-law false imprisonment. This court has
subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal
guestion) and 1367 (supplemental jurisdiction).
The defendants have moved for summary judgment, arguing that
Garvin had probable cause for the arrest as a matter of law and,
because it was based on valid warrants, it was unguestionably
legal under either the Fourth Amendment or state law. The
defendants further argue that, even if the arrest was illegal. that would not have been apparent to a reasonable officer in
Garvin's position, so he is entitled to qualified immunity from
the Fourth Amendment claim and official immunity from the state-
law claim. Finally, the defendants argue that, if Garvin did in
fact violate Soukup's Fourth Amendment rights, that violation was
unconnected to any municipal policy, custom, or practice, so the
Town is entitled to summary judgment on the § 1983 claim anyway.
After oral argument, the court grants the defendants' motion
for summary judgment. As explained fully infra, Garvin had
probable cause to arrest Soukup as a matter of law, despite his
efforts here to attack the credibility of the complaining
witness. Even if probable cause were lacking, moreover, neither
Garvin nor the Town would be liable on the § 1983 claim: he
would be entitled to qualified immunity because the existence of
probable cause was at least arguable, and he was not carrying out
any municipal policy or custom in arresting Soukup despite any
lack of probable cause. The state-law false imprisonment against
Garvin fails because he had valid warrants for the arrest, and
there is no evidence that he procured them through intentional or
reckless material misstatements or omissions. Finally, because
Garvin had probable cause and a valid warrant, taking Soukup into
custody, rather than issuing him a summons, was not unreasonable
in violation of the Fourth Amendment.
2 I. Applicable legal standard
Summary judgment is appropriate where the "pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c)(2). Under this rule, "[o]nce the moving
party avers an absence of evidence to support the non-moving
party's case, the non-moving party must offer 'definite,
competent evidence to rebut the motion.'" Meuser v. Fed. Express
Corp., 564 F.3d 507, 515 (1st Cir. 2009) (guoting Mesnick v. Gen.
Elec. C o ., 950 F.2d 816, 822 (1st Cir. 1991)).
Where, however, "the party moving for summary judgment bears
the burden of proof on an issue, he cannot prevail unless the
evidence that he provides on that issue is conclusive." EEOC v.
Union Independiente de la Autoridad de Acueductos y
Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002)
(guotation marks omitted). As discussed infra, this standard
applies to Garvin's argument for summary judgment on the basis of
gualified immunity from the Fourth Amendment claim, because he
bears the burden of proof on that defense.
In ruling on a motion for summary judgment, the "court must
scrutinize the record in the light most flattering to the party
opposing the motion, indulging all reasonable inferences in that
3 party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19
(1st Cir. 2003). The following facts are set forth accordingly.
II. Background
Garvin received a telephone call one day from Robert Brooks,
Soukup's neighbor, reporting that Soukup had "just jumped out in
front of [Brooks's] car." At that time, Garvin was already
acguainted with Soukup and Brooks, who lived near each other on
the same road in town. Garvin recalled that, some nine days
earlier, the two men had been involved in an altercation and
that, as a result, Soukup had been arrested on charges of assault
and possession of a weapon (though Garvin had not personally
participated in the investigation of that incident or the
arrest). Due to the arrest, Soukup remained subject to bail
conditions, including, in relevant part, (1) to "have no contact
with Robert Brooks or his [f]amily, by mail, telephone or
otherwise," and (2) "to refrain from going within 50 yards of
where [they] may be."
In response to Brooks's call, Garvin interviewed Soukup and
his wife, Kathy, at their home, as well as Brooks, at his home.
Garvin recalls that the Soukups told him they had witnessed
Brooks "driving at a high rate of speed when [Soukup] observed
this and threw his arms in the air yelling to Brooks to slow
4 down." According to Garvin's police report, Soukup's wife said
that her husband was "in the road waving his arms" when Brooks
drove past, and Soukup said that he was on "the side of the road
with his dogs when he observed Brooks traveling" so he "waived
[sic] his arms in the air to slow down Brooks," and that "when
Brooks drove by, [Soukup] was right near [Brooks's] car." The
Soukups now state in affidavits, however, that they did not tell
Garvin that Soukup was "in the road" or "waving his arms."1
Instead, Soukup says, he reported that he "was at the edge of the
road, on his lawn." In his interview. Brooks said that he was
driving down his road when he saw Soukup "walking toward
[Brooks's] vehicle" with his "arms above his head waiving [sic]
them and swearing at Brooks." Brooks also said that Soukup "was
so close to the vehicle his arms were near [the] windshield."
Both of the Soukups and Brooks later provided Garvin with
written statements. The Soukups' statements repeated that Soukup
had yelled at Brooks to slow down as he was driving past their
house "at a high rate of speed," but did not say anything about
where Soukup had been standing at the time. Brooks's statement
1The Soukups also state in their affidavits that Soukup could not have been waving his arms because "he had one hand holding [his] dog by the collar to keep it from darting out into the road." But the Soukups do not say whether they told this to Garvin at the time.
5 related that, as he drove near Soukup's house, Soukup was "on his
front lawn in the distance playing with his dogs" but then began
"walking toward" Brooks's vehicle with a hand in the air "as if
he wanted to talk." Brooks stated that, while he attempted to
avoid eye contact as he drove past, Soukup "continued to walk
right into the road and was hollering and swearing and pointing,"
ultimately coming within "inches" of Brooks's vehicle.
Based on the information just surveyed, Garvin concluded
that Soukup had engaged in criminal contempt by breaching his
bail conditions, in violation of N.H. Rev. Stat. Ann. § 597:7-a,
II, and disorderly conduct, in violation of N.H. Rev. Stat. Ann.
§ 644:2. Though, as already mentioned, Garvin knew of the
"history of conflict" between Soukup and Brooks, Garvin believed
Brooks's account of the incident. Garvin based that conclusion
on Brooks's "general demeanor, and the fact that he had initially
called the police to report the incident," as well as that he had
"always been truthful" in "prior dealings" with Garvin.
Garvin applied for two warrants to arrest Soukup, one on the
criminal contempt charge and the other on the disorderly conduct
charge, swearing out a separate affidavit for each one. The
affidavit in support of the criminal contempt charge related
Garvin's version of what the Soukups and Brooks said in their
interviews. While Garvin recalls that he swore out a "similar"
6 affidavit in support of the disorderly conduct charge, he has not
been able to locate that affidavit and says that he is therefore
"not 100% certain that it exists." In any event, a justice of
the peace issued both warrants.
Garvin then called Soukup to tell him about the warrants
"and asked him to come down to the police station at a convenient
time to process the arrest." Soukup did so. He was held at the
station for several hours while his wife tried to raise money for
bail and, when she could not do so within that time, transferred
to the Grafton County jail. After a few hours there, he posted
bail and was released. The charges were eventually dismissed.
Soukup then brought this action, alleging that Garvin had
subjected him to an unreasonable seizure in violation of the
Fourth Amendment, actionable under 42 U.S.C. § 1983, and false
imprisonment under state law. Soukup further alleged that the
Town was liable on the § 1983 claim because it failed "to
exercise reasonable care in supervising and training its police
officers." The Town subseguently moved for judgment on the
pleadings on Soukup's § 1983 claim against it, arguing it failed
to state a claim for relief, while Garvin moved for summary
judgment on the claims against him based on gualified immunity.
In a written order, the court granted the motion for
judgment on the pleadings, ruling that the complaint "contain[ed]
7 not a single assertion of fact" to support the § 1983 claim
against the Town. 2009 DNH 120, 8. But the court denied
Garvin's motion for summary judgment, ruling that, while it
"assert[ed] a colorable, and arguably meritorious gualified
immunity defense," Soukup had "establishe[d] genuine issues of
material fact."2 Id. at 8-9. The court also observed, however,
that " [d]iscovery may eliminate these disputes, allowing for
summary judgment later in the litigation." Id. at 9.
Soukup later moved to amend his complaint to reinstate the
§ 1983 claim against the Town, pleading a number of particular
deficiencies in its policies or customs that he says were causes
of the alleged Fourth Amendment violation by Garvin. The
amendment was allowed without objection. The defendants then
filed another motion for summary judgment.
Ill. Analysis
A. The alleged Fourth Amendment violations
1. Lack of probable cause
The Fourth Amendment provides, in relevant part, that "[t]he
right of the people to be secure in their persons, houses.
2In particular, Soukup argued that Garvin's affidavit in support of one of the arrest warrants "contained several false statements." papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause." U.S. Const, amend. IV. Probable cause exists
"when, at the time of the arrest, the 'facts and circumstances
within the officer's knowledge . . . are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in
the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.'" Holder v. Town
of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (guoting Michigan
v. DeFillippo, 443 U.S. 31, 37 (1979) (ellipse by the court)).
When "the material facts--what the police knew at the moment
of the arrest, the source of their knowledge, and the leads they
pursued or eschewed--are not in dispute . . . , the existence vel
non of probable cause ordinarily is amenable to summary
judgment." Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 9 (1st
Cir. 2004). That is the case here. There is no genuine dispute
as to what Brooks told Garvin about Soukup's behavior, and those
statements alone created probable cause to arrest him, both for
criminal contempt and disorderly conduct.
Before explaining further, the court pauses to resolve two
initial matters. First, Soukup suggests in a footnote to his
brief that the disorderly conduct charge should be ignored in
assessing the legality of his arrest due to the defendants' inability to produce the affidavit submitted in support of the
warrant for that offense. But, to buttress that notion, Soukup
does not provide any authority, or even any developed argument,
and the controlling authority is to the contrary.
In Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005),
the court of appeals rejected the plaintiff's argument that his
arrest was invalid because, during the litigation of his § 1983
claim, the only supporting warrant produced by the defendants was
"unsigned and unaccompanied by an affidavit or statement of facts
in support of probable cause." Id. at 77. Thus, the plaintiff
argued, "a reasonable jury could infer that no valid warrant
existed." Id. The court of appeals disagreed, ruling that the
defendants had "produced substantial, though imperfect, evidence
that a valid arrest warrant issued upon a neutral magistrate's
review of facts allegedly establishing probable cause," e.g.,
testimony by an officer who said he had prepared the application
and notes that he identified as versions of it. Id. at 78-79.
Likewise, Garvin has attested to drafting an affidavit in
support of a warrant for the disorderly conduct charge and, while
he has not produced any drafts, he has said that its substance
was "similar" to that of the affidavit supporting the warrant for
the criminal contempt charge, which has been produced in this
case. Furthermore, the evidence here that the affidavit
10 supporting the disorderly conduct warrant existed is even
stronger than the evidence in Burke in one critical respect: the
defendants have produced a signed version of the warrant itself.
That strongly indicates that a supporting affidavit existed, both
circumstantially--because New Hampshire law, unlike the
Massachusetts law at issue in Burke, forbids the issuance of
warrants without such an oath or affirmation, N.H. Const. Pt. I,
Art. 19--and directly--because the justice of the peace recites
in the warrant that Garvin had "exhibited . . . his complaint
upon oath" against Soukup for disorderly conduct.
Beyond a strained characterization of Garvin's testimony in
this case,3 Soukup has provided no contrary evidence. So here,
as in Burke, the physical absence of a supporting affidavit from
the record does not prevent the court from relying on the
resulting warrant in gauging the legality of the arrest (though,
as discussed infra, Garvin had probable cause to arrest Soukup
for criminal contempt anyway, so his claim would fail even if the
court ignored the disorderly conduct charge as he suggests).
3Contrary to what Soukup argues, Garvin does not state that he believed the affidavit supporting the disorderly conduct warrant "existed, but cannot be sure" (emphasis added). He states a belief that he drafted the affidavit, but that because "a search of the files has not been able to locate that document,. . . I am not 100% certain that it exists" (emphasis added), i.e., at the present time.
11 Second, Soukup also claims that Garvin's application for the
criminal contempt warrant contained reckless material
misstatements or omissions.4 While the court rejects that
assertion, see Part III.B, infra, it is irrelevant to Soukup's
Fourth Amendment claim anyway. No Fourth Amendment violation
occurs, even in the case of a warrant procured by material
misstatements or omissions, where probable cause supports the
arrest, making it "independently valid without the need for a
warrant." United States v. Laurent, 607 F.3d 895, 903 (1st Cir.
2010). There, as here, "the arrest warrant was unnecessary [so]
invalidating it would not change the outcome; the arrest was
amply supported by probable cause." Id.
Under New Hampshire law, a person is guilty of disorderly
conduct if, in relevant part, he "knowingly or purposely creates
a condition which is hazardous to himself or another in a public
place by any action which serves no legitimate purpose," N.H.
Rev. Stat. Ann. § 644:2, I, "directs at another person in a
public place obscene, derisive, or offensive words which are
likely to provoke a violent reaction on the part of an ordinary
person," id. § 644:2, 11(b), or "[o]bstructs vehicular or
4Soukup conceded at oral argument that he had no evidence or reason to believe that any alleged misstatements or omissions in the warrant application were intentional.
12 pedestrian traffic on any public street," id. § 644:2, 11(c).
Garvin had probable cause to believe that Soukup had done all of
those prohibited acts, based on Brooks's statements that Soukup
"continued to walk right into the road and was hollering and
swearing and pointing" at Brooks as he drove by, coming "so close
to the vehicle his arms were near [the] windshield."
These statements also furnished probable cause to arrest
Soukup for criminal contempt under § 597:7-a, II, which provides
that a person released on bail "who has violated a condition of
release is subject to . . . a prosecution for contempt of court."
The conditions of Soukup's bail, again, reguired him to "have no
contact with" Brooks and "to refrain from going within 50 yards
of where [he] may be." Soukup did both, according to Brooks, by
swearing at him and coming close enough to his vehicle to touch
it as he drove past.5
5Soukup argues that it "should have been obvious to any reasonable officer" that he "was unable to keep the 50-yard distance between himself and Brooks." That is only true, however, if a reasonable officer would have to credit Soukup's version of events that he was "at the edge of the road, on [his] lawn" as Brooks approached. Brooks stated that Soukup was "on his front lawn in the distance" when he began walking toward Brooks as he drove past, ultimately getting "within inches" of the vehicle. As discussed in detail infra, a reasonable officer was entitled to believe Brooks rather than Soukup, and to conclude that Soukup had gone within 50 yards of Brooks as prohibited by the bail order.
13 Soukup concedes that "police officers can justifiably rely
upon the credible complaint by a victim to support a finding of
probable cause." Forest v. Pawtucket Police Dep't, 377 F.3d 52,
57 (1st Cir. 2004) . He nevertheless maintains that, here, a
reasonable officer would have found Brooks's complaint to lack
credibility. His arguments on that score are unconvincing.
Soukup asserts that a reasonable officer would have doubted
Brooks's story because "[r]ational men do not jump out in front
of speeding cars . . . for any reason but to get themselves
killed." But, while Brooks said in his initial phone call to
Garvin that Soukup "jumped out in front of [his] car," it is
clear from his later statements that he meant that figuratively,
i.e., Soukup went very near Brooks's car as he drove past. In
any event, it suffices to say that, as a matter of common
experience, people do not always behave as "rational men" and
even sometimes even do things that endanger their own welfare, so
a report of a suspect acting that way would hardly seem
incredible to a reasonable officer. Probable cause, after all,
is a "commonsense, nontechnical conception[] that deal[s] with
the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act."
Ornelas v. United States, 517 U.S. 690, 695 (1996) (guotation
marks omitted). Indeed, if police could credit reports of only
14 "rational" behavior by suspects in assessing probable cause,
arrests for many types of crimes would become nearly impossible.
Soukup further argues that a reasonable officer would have
disbelieved Brooks based on the "history of conflict" between him
and Soukup. But the court of appeals has sguarely rejected the
idea that "when an officer has knowledge of a 'bad relationship'
between the person under suspicion and a witness to the alleged
crime, that witness's credibility must be considered guestionable
and, conseguently, the officer has a duty to investigate further
before making an arrest." Holder, 585 F.3d at 505. And Garvin
did investigate further: he personally interviewed and received
written statements from both Soukup and his wife. They had the
same motive to lie about the incident as Soukup attributes to
Brooks, yet Soukup offers no colorable explanation as to why a
reasonable officer would have believed them instead of Brooks.6
As this court has observed, "[i]t would be nearly impossible for
the police to carry out an arrest if the suspect's mere denials
6Garvin, in contrast, explains that he found Brooks reliable based on "the fact that he had initially called the police to report the incident," as well as that he had "always been truthful" in their prior dealings. These factors tend to support the credibility of a witness in establishing probable cause, as the court of appeals has recognized. See, e.g.. United States v. Croto, 570 F.3d 11, 14 (1st Cir.) (witnesses "willingly provided the information" to police), cert, denied, 130 S. C t . 518 (2009); United States v. Jordan, 999 F.2d 11, 14 (1st Cir. 1999) (witness had provided "reliable information" in the past).
15 were enough to extinguish probable cause." Holder v. Town of
Newton, 2010 DNH 19, 12 (citing, inter alia, Cox v. Hainey, 391
F.3d 25, 32 n.2 (1st Cir. 2004) ("A reasonable police officer is
not reguired to credit a suspect's story.")), appeal docketed.
No. 10-1227 (1st Cir. Mar. 2, 2010) .
In any event, the Soukups did not deny all culpable aspects
of Brooks's account--even according to what they now say they
told Garvin, which the court accepts as true in ruling on the
defendants' motion for summary judgment. Though Soukup and his
wife deny reporting that he was in the road or waved his arms,
they do not deny reporting that he yelled at Brooks. And Soukup
does not dispute that doing so amounted to "contact" with Brooks
as prohibited by the bail order.7 So, even if a reasonable
officer should have disregarded Brooks's account in favor of
Soukup's, Soukup's account alone furnished probable cause.
7As a result, the court need not--and does not--decide that guestion. Soukup, after all, bears the burden of proving he was arrested without probable cause. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir. 1994). Soukup does state in a footnote that "[o]ne may argue that" his yelling at Brooks was not "contact," but his sole support for that observation is a statement from his own deposition that "[i]n my mind, for me to have contact with him, he would have to hear me and understand me." Even if this musing carried any weight as to the meaning of the bail order, the record establishes that Brooks did hear and understand Soukup, because Brooks reported that he had heard Soukup swearing at him. Furthermore, at oral argument, Soukup conceded that yelling at Brooks "could be construed" as contact.
16 Soukup objects to that conclusion as well, arguing that his
admitted conduct was not criminal by virtue of N.H. Rev. Stat.
Ann. § 627:3, New Hampshire's statutory codification of the
"competing harms" defense, and that "no police officer could
reasonably have concluded otherwise--or at least, a jury is
entitled to so find." That is wrong for at least three reasons.
First, "the Supreme Court has flatly rejected the idea that
the police have a standing obligation to investigate potential
defenses before finding probable cause."8 Acosta, 386 F.3d at 11
(citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979)). Second,
the competing harms defense applies only to "[c]onduct which the
actor believes to be necessary to avoid harm to himself or
others," N.H. Rev. Stat. Ann. § 627:3, I, and is not available
when "lawful alternatives exist which will cause less, if any,
harm than the otherwise illegal conduct," New Hampshire v.
L'Heureux, 150 N.H. 822, 827 (2004). So, if Brooks's speeding
did indeed put Soukup in fear for his "life and limb," then he
8At oral argument, Soukup maintained that this rule did not apply where, as here, the police do investigate a potential affirmative defense by interviewing the suspect. But, just as a reasonable officer normally has no duty to investigate defenses, he also has no duty to resolve disputes over their application in the suspect's favor. See Holder, 585 F.3d at 505. This rule has particular force where, as here, the suspect does not invoke the defense or even provide any factual basis for it during the investigation.
17 could have protected those interests, and stayed within his bail
conditions, by simply backing himself away from the side of the
road as he saw Brooks approaching.
Third, if it was in fact "necessary" for Soukup to yell at
Brooks, there is nothing in Soukup's affidavit to suggest that he
told Garvin that during the investigation. To the contrary,
Soukup now says he reported being "at the edge of the road, on
[his] lawn," when Brooks passed, which calls into serious
guestion Soukup's claimed need to yell at Brooks "to avoid harm
to himself or others" from the speeding vehicle.9
Although Soukup's arguments presume otherwise, "'probable
cause' is just that--probable--and does not reguire proof beyond
a reasonable doubt," United States v. Morales-Aldahondo, 524 F.3d
115, 119 (1st Cir. 2008), let alone the wholesale rejection of a
witness's story simply because he had past conflicts with the
suspect, or the anticipation of a farfetched affirmative defense.
In light of these principles, set forth in the controlling
caselaw cited above, any rational factfinder would have to
9At oral argument, Soukup maintained that yelling was necessary to protect his dog from Brooks's speeding car. It is unclear, though, whether protecting an animal--as opposed to a person--from harm would trigger the competing harms defense. Regardless, Soukup now says that he was holding his dog by the collar to prevent it from bolting into the road as Brooks passed, so yelling at Brooks in violation of the bail order was not "necessary" to protect the dog from harm either.
18 conclude that the facts known to Garvin at the time of the arrest
established probable cause for at least one of the offenses, if
not both. See Holder, 585 F.3d 505-506; Acosta, 386 F.3d at 10-
12; Forest, 377 F.3d at 57.
2. Qualified immunity
Garvin argues that, even if the arrest lacked probable
cause, he cannot be held personally liable for it under § 1983 by
virtue of qualified immunity.10 The Supreme Court has held that
an officer "will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have concluded
that a warrant should issue; but if officers of reasonable
competence could disagree on this issue, immunity should be
recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986). In
other words, qualified immunity protects an officer's decision to
obtain an arrest warrant "'so long as the presence of probable
cause is at least arguable.'" Abreu-Guzman v. Ford, 241 F.3d 69,
10While Soukup also brings this claim against the Town of Lisbon, which cannot invoke qualified immunity, see Owen v. City of Independence, 445 U.S. 622 (1980), he does not explain the causal nexus between his alleged arrest without probable cause and any of the assertedly deficient municipal policies or customs set forth in his amended complaint. There is none, as the defendants point out. So any claim seeking to impose liability against the Town for Garvin's allegedly arresting Soukup without probable cause cannot succeed. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
19 73 (1st Cir. 2001) (quoting Prokey v. Watkins, 942 F.2d 67, 72
(1st Cir. 1991)).
That was manifestly the case here. Again, even aside from
Brooks's account, which a reasonable officer was entitled to
credit, Soukup concedes that the bail order "could be construed"
to prohibit his admitted yelling at Brooks, and it was hardly
unreasonable for Garvin to fail to anticipate a competing harms
defense which is thin at best and was not even invoked by Soukup
himself during the investigation. Even if probable cause for the
arrest was lacking, Garvin is entitled to summary judgment on the
Fourth Amendment claim.11
3. The custodial nature of the arrest
Soukup also argues that, even if there were probable cause
for his arrest, it still violated the Fourth Amendment because he
was taken into custody on the charges, rather than ordered to
appear by way of a summons. This is so, he maintains, because
"[t]here simply was no good reason to subject [him] to an arrest"
for his alleged misdemeanors that occurred outside of the
“ Soukup concedes that Garvin is entitled to qualified immunity from the claim that he violated the Fourth Amendment by arresting him rather than issuing him a summons, given the lack of "clear precedent"--or, more accurately, any precedent--to support that theory. See Part III.A.3, infra.
20 arresting officer's presence--despite the fact that the arrests
were supported by valid warrants. This argument betrays a grave
misunderstanding of the Fourth Amendment.
Soukup provides no authority whatsoever for the radical
proposition that an arrest can violate the Fourth Amendment even
though it is supported by a valid warrant, and this court is not
aware of any, from any court, anywhere (aside from cases where
excessive force was used to carry out the arrest, see Graham v.
Connor, 490 U.S. 386, 396-97 (1989), but there is no allegation
to that effect here). That is hardly surprising, because "[t]he
bulwark of Fourth Amendment protection, of course, is the Warrant
Clause, reguiring that . . . police obtain a warrant from a
neutral and disinterested magistrate." Franks v. Delaware, 438
U.S. 154, 165 (1978). When that happens, and the police proceed
to execute the warrant, that is the Fourth Amendment in action.
It is not a Fourth Amendment violation. See United States v.
Ventresca, 380 U.S. 102, 112 (1965) (ruling that arresting
officers "did what the Constitution reguires. They obtained a
warrant from a judicial officer 'upon probable cause, supported
by Oath or affirmation.'" (guoting U.S. Const, amend. IV)).
Garvin's proposed rule--that the Fourth Amendment prohibits
the use of warrants to arrest a suspected misdemeanant whose
alleged crimes did not occur in the presence of an officer, at
21 least without some "good reason" for taking the suspect into
custody--would essentially turn this regime upside down. It
would render magistrates powerless to command valid arrests in
certain cases, even if probable cause were indisputable, while
authorizing officers to make warrantless arrests based on their
own probable cause assessments so long as the supporting events
unfolded before their eyes. And Soukup is seriously mistaken
that the Supreme Court supplied the "logic" for such an approach
in Atwater v. City of Lago Vista, 532 U.S. 318 (2001) .
There, the Court held that "[i]f an officer has probable
cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating
the Fourth Amendment, arrest the offender." Id. at 354. The
Court noted, however, both that there was no need there to
"speculate whether the Fourth Amendment entails an 'in the
presence' reguirement for purposes of misdemeanor arrests," id.
at 341 n.ll, and that the plaintiff conceded the arrest would
have been constitutional if supported by a warrant, id. at 346
n.15. Soukup does not explain how these limitations on the
holding, i.e., the Fourth Amendment authorizes arrests for all
misdemeanors committed in the officer's presence, and without a
warrant, translate into a rule that the Fourth Amendment
prohibits arrests for some misdemeanors committed out of the
22 officer's presence, but with a warrant. The syllogism is simply
illogical.
This is to say nothing of the fact that, as an example of a
"discretionary judgment" by police that provides "no basis for
legal action challenging" it, the Atwater Court specifically
mentioned "choosing between the discretionary leniency of a
summons in place of a clearly lawful arrest," i.e., one supported
by probable cause. Id. at 350. The Court very likely would have
selected a different example of inactionable police conduct had
it meant to imply, as Soukup believes, that electing to proceed
by arrest rather than summons can subject police to liability.
Indeed, the very holding of Atwater is that it cannot, at least
where the misdemeanor occurs in the officer's presence.
Furthermore, as Soukup himself emphasizes, Atwater observed
that "a responsible Fourth Amendment balance is not well served
by standards reguiring sensitive, case-by-case determinations of
government need, lest every discretionary judgment in the field
be converted into an occasion for constitutional review." Id. at
347. But Soukup demands just that kind of sensitive, case-by-
case determination here. His arrest was unreasonable, he
complains, because he "was not a flight risk" and his crime was
"not one of violence" nor did it create a "risk of renewed
violence between he and Brooks," as shown by the fact that the
23 arrest was not carried out right away. But those are more or
less the same facts the Atwater Court refused to use as an
occasion for limiting an officer's constitutional authority to
arrest for a misdemeanor committed in his presence. Id. at 346.
Nevertheless, Soukup maintains, that rationale does not
apply in cases of arrest by warrant, which do not necessitate the
same judgments "on the spur (and in the heat of) the moment" as
warrantless arrests and therefore do not reguire "standards
sufficiently clear and simple to be applied with a fair prospect
of judicial second-guessing months and years after an arrest."
Id. at 347. Both Soukup's premise and his conclusion are wrong.
First, police are often called upon to decide whether to
seek an arrest warrant "on the spur (and in the heat of) the
moment"--hence their authority to do so by phone, fax, or
electronic transmission, see N.H. Rev. Stat. Ann. § 490:27-a.
Second, as Atwater makes clear, the need for "easily
administrable rules" under the Fourth Amendment is not limited to
cases reguiring guick decisions by the police. The Court
specifically noted, in fact, that "Fourth Amendment rules "'ought
to be expressed in terms that are readily applicable in the
context of the law enforcement activities in which they are
necessarily engaged.'" 532 U.S. at 347 (guoting New York v.
Belton, 453 U.S. 454, 458 (1981)) (further guotation marks and
24 footnote omitted). "Law enforcement activities," of course,
include seeking arrest warrants as well as making warrantless
arrests, and the fact the former typically provides more
opportunity for reflection than the latter does not itself
justify imposing a set of "'ifs, ands, and huts' rules, generally
thought inappropriate in working out Fourth Amendment
protection." Id. (guoting Belton, 453 U.S. at 458).
In disregard of this principle, Soukup proposes a rule that,
even if an officer has probable cause to believe a suspect has
committed an offense, he may not arrest pursuant to a warrant, if
the offense is a misdemeanor, and if the suspect poses no risk of
flight or violence. It was the Atwater Court's concern for the
difficulties inherent in making those kinds of judgment calls
based solely on a pre-arrest investigation, though, that supplied
one of the main rationales for its holding. Id. at 348-50.
Moreover, police have enough to do in investigating and
analyzing whether there is probable cause without also having to
worry about whether they should proceed by warrant or summons
(and over personal § 1983 liability if they choose wrong).
Imposing that additional burden comes with very little
corresponding benefit, as the Atwater Court concluded in
rejecting a rule, similar to the one Soukup proposes here, that
would reguire the police to proceed by summons in particular
25 circumstances. Id. at 351-54. After all, suspects taken into
custody ordinarily receive a bail hearing the next morning, at
the latest, see Holder, 2010 DNH 019, 29-30, at which factors
like risk of flight and dangerousness are considered by a
judicial officer, see N.H. Rev. Stat. Ann. § 597:2, II-III.
Demanding that officers weigh those factors before even making
the arrest, then, offers little additional protection against
unjustified detentions--just as, the Atwater Court reasoned, it
offered little additional protection against arrests without
probable cause, since the Constitution already guarantees "anyone
arrested for a crime without formal process" to a probable cause
hearing before a magistrate within 48 hours. 532 U.S. at 352.
The only justification Soukup offers for his proposed rule,
in fact, is to spare a suspect from the "gratuitous humiliation"
and "pointless indignity" of custodial arrest when charging him
by summons would have been egually effective in serving the law
enforcement interests at issue. Even assuming that the second
part of that statement is correct, though (among other benefits,
an arrest followed by the imposition of bail conditions creates
an incentive for a defendant to appear at trial that a summons
does not), that was precisely the justification the Atwater Court
rejected in refusing to prohibit warrantless arrests for
misdemeanors committed in the officer's presence. Id. at 346-47.
26 It borders on sophistry to argue that the same justification
supports a ban on misdemeanor arrests by warrant, simply because
the offenses occurred outside of the officer's presence.
Indeed, while Atwater declined to decide whether the
"presence requirement" was constitutionally compelled, other
courts have not hesitated to hold that it is not. In a decision
preceding Atwater, in fact, the court of appeals observed that
"neither the Supreme Court nor this circuit has ever held that
the Fourth Amendment prohibits warrantless arrests for
misdemeanors not committed in the presence of arresting
officers," and cited approvingly to "cases from sister circuits
addressing this very issue [that] have arrived at the opposite
conclusion." Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st
Cir. 1997) (citing Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995), Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990), and
Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir. 1974)).
The fact that the Court has since declined to decide
whether the Fourth Amendment imposes a "presence" requirement for
misdemeanor arrests is no reason to believe it would answer that
question in the affirmative. See United States v. McNeill, 484
F.3d 301, 311 (4th Cir. 2007) ("Several other circuits have held
that the Fourth Amendment contains no 'in the presence'
requirement, and none have reversed their position in the wake of
27 Atwater." (citing Woods v. City of Chi., 234 F.3d 979, 992-95
(7th Cir. 2000), Pyles, 60 F.3d at 1215, Fields v. City of S.
Houston, 922 F.2d 1183, 1189 (5th Cir. 1991), and Barry, 902 F.2d
at 772)). Under these cases, then, even if Garvin did not have
valid warrants for Soukup's arrest on the misdemeanor charges--
and the warrants were valid, see Part III.B, infra--the fact that
the alleged criminal conduct occurred outside Garvin's presence
would still not invalidate the arrest under the Fourth Amendment.
Soukup cites no authority to the contrary.
Finally, it is also worth noting that Soukup was not
arrested for just any misdemeanor, but for criminal contempt for
violating the conditions of his bail. New Hampshire law
specifically contemplates that a "court may issue a warrant for
the arrest of a person charged with violating a condition of
release," N.H. Rev. Stat. Ann. § 597:7-a, III, and federal law
contains a nearly identical provision as part of the Bail Reform
Act, see 18 U.S.C. § 3148(b).
If Soukup is right that his arrest for violating his bail
order was nevertheless unreasonable under the Fourth Amendment,
that means these statutes (and, one would expect, the similar
laws of a number of other states) are unconstitutional, at least
as applied to certain bail violation arrests, but that no court
has yet to so hold. Atwater relied on the similar prevalence of
28 laws authorizing warrantless arrests for misdemeanors committed
in the officer's presence, and the absence of decisions
invalidating them, in holding that they were not prohibited by
the Fourth Amendment. 532 U.S. at 344-45. The same reasoning
applies here. Soukup's custodial arrest on the criminal contempt
charge did not violate the Fourth Amendment.12
B. The state-law false imprisonment claim
Soukup also claims that his arrest amounted to false
imprisonment at common law.13 To prevail on this claim, Soukup
must show, among other things, that he was confined by the
defendants "without legal authority." MacKenzie v. Linehan, 158
12The court has assumed for purposes of this discussion that Garvin arrested Soukup in accordance with the alleged municipal custom to carry out custodial arrests for all misdemeanors, establishing the Town's liability for the claimed constitutional violation. See note 10, supra.
13In most cases, the dismissal of all federal claims before trial "will point toward declining to exercise [supplemental] jurisdiction over the remaining state-law claims." Carnegie- Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). But there is no "mandatory rule" reguiring dismissal; courts must "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." Id. In this case, the close proximity to trial and the heavy overlap between Soukup's federal and state-law claims both point in favor of exercising jurisdiction. See, e.g., Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1192 (2d Cir. 1996). This court therefore resolves Soukup's state-law claim as well.
29 N.H. 476, 482 (2009). Garvin had legal authority to detain
Soukup in the form of valid warrants to arrest him. He therefore
cannot maintain a false imprisonment claim. See Welch v.
Bergeron, 115 N.H. 179, 181 (1975).
Soukup argues that the warrants were defective because
Garvin's supporting affidavits suffered from materially false
statements included, and omissions excluded, "knowingly and
intentionally, or with reckless disregard for the truth."
Franks, 438 U.S. at 155-56. Assuming, without deciding, that a
warrant procured through misstatements or omissions does not
confer the "legal authority" fatal to a false imprisonment claim
under New Hampshire law, but see Hickox v. J.B. Morin Agency,
Inc., 110 N.H. 438, 443 (1970) (unless a complaint for an arrest
warrant "appear[s] on the face of it to be an absolute nullity,
it cannot be called in guestion collaterally" through a false
imprisonment claim) (guotation marks, parentheses, and bracketing
omitted), there was no Franks violation here. The alleged
misstatements and omissions, even if reckless (again, Soukup
concedes that he has no basis to say they were intentional), were
not material to the showing of probable cause that supported the
warrant to arrest Soukup for violating his bail conditions.
For a court "to determine materiality," it must "excise the
offending inaccuracies and insert the facts recklessly omitted,
30 and then determine whether or not the corrected warrant
application would establish probable cause." Burke, 405 F.3d at
82 (quotation marks and ellipse omitted).14 Here, Soukup argues
that the application inaccurately stated that he was waving his
arms and walking toward Brooks's vehicle, when in fact, as he now
alleges, he was simply standing at the edge of the road as Brooks
sped past. Soukup further argues that the application recklessly
omitted the fact that Brooks had recently been arrested due to a
prior confrontation with Soukup.
But the application did contain a statement from Soukup's
wife that he had yelled at Brooks, which, as discussed supra, was
itself enough to establish probable cause to arrest Soukup for
violating his bail conditions (since he has more or less
acknowledged here that the yelling amounted to contact within the
meaning of the bail order) . Soukup has never questioned the
accuracy of that statement. Furthermore, since its source was
Soukup's wife, rather than Brooks, any omitted information
tending to impugn Brooks's credibility, i.e., his arrest due to a
prior altercation with Soukup, was immaterial to this aspect of
the probable cause analysis. So, even when the complained-of
14A s Burke makes clear, there is no merit to Soukup's suggestion at oral argument that a court hearing a § 1983 claim raising a Franks violation cannot assess the materiality of the alleged omissions as a matter of law.
31 inaccuracies and omissions in the warrant application are
corrected, it still demonstrates probable cause for Soukup's
arrest. See, e.g.. United States v. Ranney, 298 F.3d 74, 78-79
(1st Cir. 2002). It follows that the warrant was valid and
therefore conveyed the necessary "legal authority" for Brooks to
arrest Soukup. The defendants are entitled to summary judgment
on Soukup's state-law false imprisonment claim.15
Ill. Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment16 is GRANTED. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Dated: August 25, 2010
cc: Frank P. Spinella, Jr., Esq. Andrew B. Livernois, Esq.
15The court therefore need not reach their official and derivative immunity arguments.
16Document no. 19.