Thomas v. Gscheidle CV-98-264-JD 05/26/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lennie Thomas and Cushaw Barnett
v. Civil No. 98-264-JD
Peter Gscheidle, et al.
O R D E R
Plaintiffs Lennie Thomas and Cushaw Barnett bring civil
rights and state law claims against two Kittery police officers,
Peter Gscheidle and Robert Gagne, the chief of the Kittery police
department, Edward Strong, and the town of Kittery, Maine. The
plaintiffs' claims arise from a seguence of events during which
their car was stopped and they were subjected to a full felony
stop before being released. The defendants move for summary
judgment (document no. 11) on all claims.
Background
On March 25, 1997, Kittery Police Officer Peter Gscheidle
and Animal Control Officer Robert Gagne traveled to New Hampshire
to pick up a Kittery police cruiser that had been repaired in
Newington, New Hampshire. Before he left Maine that day,
Gscheidle had briefly seen a bulletin received by the Kittery
Police Department from the York County (Maine) Sheriff's Department. From the bulletin, dated four days earlier,
Gscheidle learned that two young black male suspects, in their
early twenties, were wanted in New York City for homicide and at
least one of them had been seen in the Biddeford, Maine, area.
The pictures of the two suspects in the bulletin were not very
good, providing no distinguishing characteristics. The bulletin
said that the suspects were likely to be armed with nine
millimeter handguns and were considered dangerous.
As Gscheidle and Gagne came through the Portsmouth traffic
circle, they saw two cars beside the road. The plaintiffs had
been involved in a minor traffic accident with a second car.
Cushaw Barnett and the driver of the other car concluded that
there was no damage or injuries, and they were about to leave
when Gscheidle and Gagne stopped behind them. Officer Gscheidle
spoke with the driver of the other car, who said she was in a
hurry, but he did not speak to or identify either of the
plaintiffs, Cushaw Barnett or Lennie Thomas, who were in their
car for most of the time. Barnett, who was the driver, got out
briefly to write something down. Thomas, the passenger,
repeatedly turned around to watch the activity of the police.
The two cars and the police left the area of the accident.
Barnett and Thomas, who were in a green Jetta Volkswagen, turned
northbound on the Spaulding Turnpike as did Gscheidle and Gagne
2 on their way to the repair shop in Newington. As the green Jetta
left, Gscheidle and Gagne say they saw Thomas slide down in his
seat as if trying to be less visible to the officers, and they
noticed Barnett continually looking in his rear view mirror to
see what the police cruiser was doing.
Gscheidle radioed to the Portsmouth Police Department to
report the minor accident. Gscheidle also reported that the two
young black men in one of the cars involved in the accident
matched the descriptions of two men wanted for guestioning in
York County, Maine, for a double homicide in New York City. He
may also have told the Portsmouth police that they were driving a
car that matched the description of the suspects' car. Officer
David Whewell of the Portsmouth police responded and stopped
Barnett and Thomas on the Spaulding Turnpike in Newington, New
Hampshire. Officers Gscheidle and Gagne, who were following,
also stopped and got out of their cruiser with their guns drawn.
Newington police officers soon arrived and assisted in the stop.
Within minutes a television camera crew also arrived in their
truck.
Officer Whewell and the Newington officers treated the
situation as a felony motor vehicle stop. Barnett and Thomas
were ordered out of the car one at a time and were handcuffed.
They allege that they were forced to lie on the ground with the
3 officers' guns drawn and pointed at them. Barnett produced
identification, but Thomas did not have identification with him.
Thomas gave his name as Lennie Edward Thomas while Barnett
identified him as Ramal Shink. New Hampshire State Police
troopers arrived and decided to take Thomas to the Newington
police station to confirm his identity. Thomas's baby son,
riding in a car seat in the back seat of the Jetta, was released
to Barnett's custody.
At the station, Newington officers talked with Thomas and
were satisfied as to his identity. An officer contacted the
Kittery police department to get a copy of the bulletin for the
two suspects wanted for homicide. Once the copy arrived, the
officer called the New York City Police Department and learned
that the suspects were then believed to be in South Carolina.
Thomas was released.
Standard of Review
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 a judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party must first demonstrate the absence of a
4 genuine issue of material fact in the record. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) . The record evidence is taken
in the light most favorable to the nonmoving party. Zambrana-
Marrero v. Suarez-Cruz, No. 98-1601, 1999 WL 223066, *2 (1st Cir.
April 21, 1999). All reasonable inferences and credibility
issues are resolved in favor of the nonmoving party. Barreto-
Rivera v. Medina-Varqas, 168 F.3d 42, 45 (1st Cir. 1999).
"An issue is only 'genuine' if there is sufficient evidence
to permit a reasonable jury to resolve the point in the nonmoving
party's favor, while a fact is only 'material' if it has the
potential to affect the outcome of the suit under the applicable
law." Bourque v. F.D.I.C., 42 F.3d 704, 707-08 (1st Cir. 1994)
(guotations omitted). Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) ) .
Discussion
The plaintiffs bring federal claims under 42 U.S.C.A. § 1983
for violation of their Fourth Amendment and Fourteenth Amendment
rights, under sections 1981 and 1983 for race discrimination, and
under section 1983 for a conspiracy to violate their civil
5 rights.1 In addition, the plaintiffs cite provisions of the New
Hampshire Constitution in support of their federal claims. They
allege municipal and supervisory liability. The plaintiffs also
allege state law claims for invasion of privacy, assault and
battery, and negligence. The defendants move for summary
judgment arguing that the plaintiffs have not stated due process
claims under the Fourteenth Amendment, that section 1981 provides
no separate cause of action in a case brought pursuant to 42
U.S.C.A. § 1983, that they are entitled to gualified immunity,
and that the plaintiffs' state law claims fail on the same
grounds as the federal claims or for lack of jurisdiction once
summary judgment is granted on the federal claims.
A. Due Process Claims
As the defendants contend, claims that a plaintiff was
stopped or arrested without probable cause or that excessive
force was used in a stop or an arrest are specifically addressed
by the Fourth Amendment and are not subject to a substantive due
process analysis under the Fourteenth Amendment. See Albright v.
Oliver, 510 U.S. 266, 273, 276, 288 n.2 (1994); Graham v. Connor,
1Although the complaint also cites 42 U.S.C.A. § 1982, the court understands the reference to § 1982 to be an error as neither party has mentioned that section, and § 1982 does not seem to apply to the facts alleged in this case.
6 490 U.S. 386, 395 (1989). Only abusive and arbitrary
governmental actions that are not specifically governed by a
particular constitutional right may be actionable as a violation
of substantive due process. See County of Sacramento v. Lewis,
118 S. Ct. 1708, 1714-16 (1998).
In this case, the plaintiffs allege due process claims "for
unlawful search, unreasonable force, unlawful arrest or other
seizure," which they also allege as violations of the Fourth
Amendment. See Plaintiffs' Memorandum at 6. Since those claims
are specifically addressed by the Fourth Amendment, a substantive
due process analysis does not apply. The plaintiffs have not
identified any other claims or conduct by the defendants that
would be governed by a substantive due process analysis rather
than the Fourth Amendment. C f . Lewis, 118 S. C t . at 1715-16
(police pursuit before seizure not covered by Fourth Amendment
and therefore analyzed under substantive due process). The
defendants are entitled to summary judgment with respect to
plaintiffs' claims based on alleged violations of substantive due
process in counts one, three, and four.
B. Discrimination Claims
In count two, the plaintiffs allege racial discrimination
and bring claims under 42 U.S.C.A. § 1981 and § 1983. The
7 defendants contend that the claims under section 1981 must be
dismissed based on the holding in Jett v. Dallas Independent Sch.
Dist., 491 U.S. 701, 735 (1989), that section 1983 "provides the
exclusive federal damages remedy for the violation of the rights
guaranteed by § 1981 when the claim is pressed against a state
actor." The defendants, however, did not address the effect of
the 1991 amendment of section 1981, which added subsection (c),
on the exclusive remedy holding in Jett. See, e.g.. Federation
of African American Contractors v. Oakland, 96 F.3d 1204, 1206-08
(9th Cir. 1996); Meachum v. Temple Univ., No. 97-1629, 1999 WL
183675 *6, n.7 (E.D.Pa. March 25, 1999); Webster v. Fulton
Countv, No. 96CV2399TWT, 1999 WL 266460, *21-23 (N.D.Ga. Feb. 12,
1999); Tabor v. Chicago, 10 F. Supp. 2d 988, 992 (N.D. 111.
1998). The plaintiffs rely on Alexis v. McDonald's Restaurant,
67 F.3d 341, 348 (1st Cir. 1995), which held that a section
1981(a) cause of action could be brought against a police
officer, without reference to either Jett or the 1991 amendments.
Since the defendants have not demonstrated, on the record
presented here, that they are entitled to judgment as a matter of
law on the issue of a separate cause of action under section
1981, the motion is denied as to that claim. C. Qualified Immunity
"Under the doctrine of qualified immunity, public officials
'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.'" El Dia, Inc. v. Rossello, 165 F.3d 106, 109 (1st Cir.
1999) (quoting Harlow v. Fitzgerald, 457 U.S. 335, 343 (1986)).
Qualified immunity is determined based on the right defined at an
appropriate level of generality in the context of the totality of
the circumstances. Camilo-Robles v. Zapata, No. 98-1590, 1999 WL
223051 at *2 (1st Cir. Apr. 20, 1999) . The qualified immunity
inquiry is objective, based on the actions of a reasonable
person, so that "[e]vidence concerning the defendant's subjective
intent is simply irrelevant to that defense." Crawford-El v.
Britton, 118 S. C t . 1584, 1592 (1998). Once a defendant has
properly raised qualified immunity as an affirmative defense, the
plaintiff bears the burden of rebutting the defense. See id. at
at 1591-92; Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.
1997); Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 228
(1st Cir. 1992) ("When a defendant moves for summary judgment on
the basis of qualified immunity, it is the plaintiff's burden to
demonstrate the infringement of a federally assured right.").
The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the deprivation of a
constitutional right at all. Sacramento v. Lewis, 118 S. C t .
1708, 1714 n.5 (1998). The plaintiffs allege that they were
stopped without probable cause or reasonable suspicion, because
they are African American males, and that they were subjected to
an excessive use of force in the course of the stop in violation
of the Fourth Amendment.
Probable cause to arrest "exists when the facts and
circumstances within the police officers' knowledge and of which
they had reasonably trustworthy information were sufficient to
warrant a prudent person in believing that the defendant had
committed or was committing an offense." Rivera v. Murphy, 97 9
F.2d 259, 263 (1st Cir. 1992) (guotations omitted). Probable
cause for an investigative stop reguires that "a police officer
have 'specific and articulable facts which, taken together with
rational inferences from those facts,' could create a reasonable
suspicion sufficient to justify a brief detention of an
individual." Id. at 264 (guoting Terry v. Ohio, 392 U.S. 1, 21
(1968) ) .
The bulletin that Gscheidle saw described two African
American men in their twenties and provided indistinct
photographs of the men. No other distinguishing information was
provided. The bulletin was four days old on March 25 when
10 Gscheidle saw it.
Gscheidle saw the plaintiffs at the site of the accident and
noted that Barnett, the driver, had exchanged information with
the other driver, and got out of his car again while the officers
were present to write something down. Gscheidle and Gagne saw
Thomas, the passenger, looking at the cruiser to see what was
going on. Neither Gscheidle nor Gagne guestioned the plaintiffs
at the scene of the accident or made any effort to identify them.
Both the cars and the cruiser left at about the same time.
Only after the cruiser was following the plaintiffs did the
officers notice that Thomas was slipping down in his seat, which
they now describe as suspicious behavior because he appeared to
be trying to make it look like there was only one person in the
car. That is an improbable inference given the fact that the
officers saw Thomas in the car at the scene of the accident where
he apparently made no effort to hide. The officers also found it
suspicious that Barnett repeatedly looked in the mirror at the
cruiser following him. However, this is not an unusual response
for a driver who is being followed by a cruiser. Therefore, the
only remaining basis for the officers' conclusion that the
plaintiffs were the suspects described in the bulletin was their
race, gender, and that there were two of them. That information
alone, under the circumstances, was insufficient to support
11 either probable cause or a reasonable suspicion to stop them.
See, e.g.. United States v. Kithcart, 134 F.3d 529 (3d Cir.
1998); Washington v. Lambert, 98 F.3d 1181, 1190-91 (9th Cir.
1996); Whitfield v. Board of County Comm'rs, 837 F. Supp. 338,
344 (D. Colo. 1993) .
On the present record, Gscheidle and Gagne did not have
probable cause to believe that the plaintiffs were the homicide
suspects. To the extent they participated in the stop and used
force in the stop, they acted without probable cause in violation
of the plaintiffs' Fourth Amendment rights.2 A free citizen's
Fourth Amendment right not to be stopped or arrested without
probable cause and not to be subjected to unreasonable force in
the course of a stop or arrest was clearly established in 1997
when these events occurred. See, e.g., Graham, 490 U.S. at 394;
Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 5 (1st Cir. 1997);
Rivera, 979 F.2d at 264. Gscheidle's conduct in this case is
readily distinguishable from cases where the police have probable
cause to arrest, but mistakenly arrest the wrong person. See,
e.g.. Hill v. California, 401 U.S. 797, 802 (1971); Dean v.
2The parties have not distinguished actions of Gagne from Gscheidle during the events in guestion. From the record presented, it seems that Gagne had no independent knowledge of the bulletin or the descriptions of the suspects and instead relied on Gscheidle's reports and conclusions. However, since gualified immunity is not argued as to Gagne's role individually, the court will not, sua sponte, separate the two defendants.
12 Worcester, 924 F.2d 364, 368 (1st Cir. 1991). In the absence of
probable cause or reasonable suspicion that the plaintiffs were
the homicide suspects, then to the extent Gscheidle and Gagne
used force in the process of the stop, it was unreasonable. See
Graham, 490 U.S. at 394.
The defendants argue that because they did not personally
effect the stop, the plaintiffs cannot show that they violated
the Fourth Amendment. Based on the record presented, it seems
that Officer Whewell of the Portsmouth police, rather than
Officers Gscheidle and Gagne, stopped the plaintiffs.3 The
plaintiffs do not contest Officer Whewell's grounds to stop them.
Whewell's stop, however, was initiated by and based on
Gscheidle's report that the plaintiffs matched the descriptions
of two suspects wanted for a double homicide in New York.
Gscheidle's report to the Portsmouth police, as transcribed in
Whewell's report, that the plaintiffs matched the description of
the suspects and that their car "sort of fit the description" in
the bulletin seems to have been misleading or false, since
Gscheidle had insufficient information to draw that conclusion.
3The plaintiffs argue that Gscheidle and Gagne participated in the stop. The facts in the record presented show that they provided backup support to Whewell after he stopped the plaintiffs' car.
13 In addition, in making the report, he intended the information to
be used by the Portsmouth police to stop or arrest the
plaintiffs .
In a qualified immunity analysis, the right affected must be
considered at an appropriate level of generality because "the
focus must be upon the particular conduct engaged in by (or
attributed to) the defendants; immunity is forfeited only if a
reasonable official would clearly understand that conduct to be a
violation of the Constitution." Rivera-Ramos v. Roman, 156 F.3d
276, 279 (1st Cir. 1998). Here, the parties have not
sufficiently addressed the defendants' particular conduct in the
context of the alleged violations of the plaintiffs' Fourth
Amendment rights. C f ., e.g., Devose v. Addison, 172 F.3d 632
(8th Cir. 1999); Aponte Matos v. Toldeo Davila, 135 F.3d 182, 187
(1st Cir. 1998); Phelan v. Thompson, 889 F. Supp. 517, 519
(D.N.H. 1994). For that reason, both factual and legal issues
remain that cannot be resolved on the present record.
D. Municipal and Supervisory Liability
_____ Count three in each complaint is titled "Municipal
Liability/Respondeat Superior." Both allege that the town was
"grossly negligent or deliberately indifferent in the training or
instruction of police officers," and are brought under 42
14 U.S.C.A. § 1983. Count four in each complaint is titled
"Supervisory Liability." The supervisory liability claims allege
that the town and Chief Strong "failed, neglected or refused" to
manage and supervise the defendant officers with respect to
probable cause to arrest and search, use of force, race
discrimination, and the constitutional rights of citizens, and
"tolerated or acguiesced in the misuse of police powers" with
"reckless disregard" or "deliberate indifference" to the
plaintiffs' constitutional rights. The supervisory liability
claims are also brought pursuant to section 1983.
The town and Chief Strong assert that respondeat superior is
not a viable basis for a section 1983 claim and contend that the
plaintiffs have no evidence to prove their municipal and
supervisory liability claims under the appropriate standards.
The plaintiffs acknowledge that respondeat superior is not
actionable under section 1983, but explain that the respondeat
superior theory was intended to apply only to their state law
claims.
1. Municipal liability.
To establish municipal liability under section 1983, a
plaintiff must "identify a municipal 'policy' or 'custom' that
caused the plaintiff's injury." Board of County Comm'rs. of
15 Bryan County v. Brown, 520 U.S. 397, 402 (1997). A municipal
policy may be established by the municipality's "duly constituted
legislative body" or by the decisions of a policymaker. Silva v.
Worden, 130 F.3d 26, 30 (1st Cir. 1997) . A custom or practice
must have been "so well-settled and widespread that the
policymaking officials of the municipality can be said to have
either actual or constructive knowledge of it yet did nothing to
end the practice." Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st
Cir. 1989). The causation element reguires that the policy or
custom be the moving force behind the constitutional injury so
that the municipality caused the injury by its deliberate
conduct. Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997).
Deliberate indifference is the "standard of culpability
sufficient to identify a dereliction as reflective of municipal
policy." Sacramento, 118 S. C t . at 1717 n.10.
In this case, the custom or policy at issue is the town's
alleged failure to adeguately train its police officers to
recognize suspects identified in police bulletins and to make
stops based on probable cause.4 The plaintiffs have not shown
that the town had a policy not to train with respect to police
4Although the plaintiffs may have alleged a broader policy, they address only a lack of training in opposition to summary judgment.
16 bulletins and identifying suspects. The only evidence of a
custom or practice pertaining to training is evidence from
Gscheidle's deposition of his lack of training with respect to
using bulletins and identifying suspects in the context of race.
His experience alone does not demonstrate that the town had a
custom or practice not to train police in using bulletins and
identifying suspects.
In addition, the plaintiffs have not established that the
town's alleged policy or custom not to train its police officers
was the result of a conscious choice among training alternatives
that shows a deliberate indifference to the rights of those who
would be affected. See Canton v. Harris, 489 U.S. 378, 388-89
(1989). There is also no reference to the record to support the
plaintiffs' statement that as a result of a lack of training,
"all blacks looked alike, or were potential criminals" to
Gscheidle or any of the town's police. See Plaintiffs'
Memorandum at 22. The record does not show that the town was
aware of or should have been aware of problems caused by a lack
of training in using bulletins and identifying suspects. The
plaintiffs, therefore, have not shown a factual dispute as to the
existence of a town policy or custom that caused their injury due
to the town's deliberate indifference to their constitutional
rights.
17 2. Supervisory liability.
The plaintiffs do not specifically address supervisory
liability, instead asserting that the defendants failed to
distinguish municipal from supervisory liability, and for that
reason, the defendants are not entitled to summary judgment as to
their claim of supervisory liability. Since the defendants
raised supervisory liability at pages 22 through 24 of their
memorandum, the plaintiffs appear to be mistaken.
Supervisors, such as Chief Strong, may be liable for the
constitutional violations caused by police officers under their
supervision if the supervisor was either the "primary actor
involved in, or a prime mover behind, the underlying violation."
Camilo-Robles v. Zapata, No. 98-1590, 1999 WL 223051 at *2 (1st
Cir. Apr. 20, 1999). Supervisory liability is based upon the
supervisor's own actions or omissions including the foreseeable
conseguences of subordinates' misconduct if the supervisor
"'would have known of it but for his deliberate indifference or
willful blindness, and if he had the power and authority to
alleviate it.'" Barreto-Rivera, 168 F.3d at 48 (guoting
Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576, 582 (1st Cir.
1994)). A plaintiff must show an affirmative link, such as a
policy or prior notice of violative conduct, between the
supervisor's action or omission and the constitutional
18 deprivation alleged. Id.; see also Camilo-Robles v. Hovos, 151
F.3d 1, 7 (1st Cir. 1998).
Although the plaintiffs say that "Chief Strong's policy and
training was to allow their officers unfettered discretion in
determining reasonable suspicion, or at least to make an
investigatory stop based on scant information," the plaintiffs'
references to the record do not support the statement. In
addition, Gscheidle's description of his police training provided
in his affidavit demonstrates that he was trained in criminal
investigation, investigatory stops and arrests, the legal bases
for arrest, and the use of force. The plaintiffs also make an
unsubstantiated statement suggesting racial bias in police
activity. Since the plaintiffs' allegation is not supported in
the record, it will not be considered.
As the plaintiffs provide no factual support to show that
Chief Strong or the town played any role in the events that led
to their stop, they have not shown a trialworthy issue with
respect to a theory of supervisory liability. Chief Strong and
the town are entitled to summary judgment as to the plaintiffs'
section 1983 claims.
19 E. State Law Claims
The plaintiffs bring state law claims alleging invasion of
privacy, assault and battery, and negligence based on standards
established by RSA § 594:2 and 4. The defendants address only
the negligence claim on the merits, contending that the New
Hampshire statutes were inapplicable to the defendants who are
Maine police officers. The defendants also state generally that
the state law claims should be dismissed for lack of jurisdiction
following summary judgment on the civil rights claims. Since
some of the civil rights claims survive summary judgment,
supplemental jurisdiction exists as to the state law claims.
With respect to the negligence claims under RSA § 594:2 and
4, the plaintiffs argue that the mutual aid agreement, attached
to Chief Strong's affidavit, between Portsmouth and Kittery makes
the New Hampshire statutes applicable to the Maine police
officers when they operate in New Hampshire. Resolving
inferences in the plaintiffs' favor, the existence of the
agreement and Chief Strong's reliance on the agreement for the
officers' authority in New Hampshire raise unresolved issues
about the application of the statutes in this case. Therefore,
the effect of the mutual aid agreement in the circumstances of
this case cannot be determined based on the record presented for
summary judgment. The plaintiffs also argue that their claim is
20 based on negligence theories other than the statutory standard.
The defendants have failed to demonstrate that they are
entitled to summary judgment on the plaintiffs' state law claims.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 11) is granted in part and denied
in part. Summary judgment is granted in the defendants' favor as
to counts three and four, and is granted as to their claims based
on substantive due process in count one. The motion is otherwise
denied.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
May 2 6, 1999
cc: Brian T. Stern, Esguire Peter A. Meyer, Esguire Edward R. Benjamin Jr., Esguire