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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1377 <br> <br>                          LORI FLETCHER, <br> <br>                       Plaintiff, Appellee, <br> <br>                      <br>                                v. <br> <br>          TOWN OF CLINTON, DEAN BESSEY, and TODD GENEST, <br> <br>                     Defendants, Appellants. <br> <br> <br> <br>                                  <br>          APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                 <br>                   FOR THE DISTRICT OF MAINE <br>                                 <br>        [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] <br>                                 <br>                                 <br>                                 <br>                                 <br>                             Before <br>                                 <br>                      Stahl, Circuit Judge, <br>             John R. Gibson, Senior Circuit Judge, <br>                   and Lynch, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>  Edward R. Benjamin, Jr., with whom Thompson & Bowie was <br>on brief, for appellants. <br>  C.H. Spurling for appellee.  <br> <br> <br> <br> <br> <br>November 8, 1999 <br> <br> <br> <br>  LYNCH, Circuit Judge.  On July 17, 1997, Lori Fletcher <br>obtained an ex parte domestic violence restraining order against <br>her abusive boyfriend, William McDonald.  McDonald was ordered to <br>stay away from Fletcher and her residence.  Informed that McDonald <br>had been seen in Fletcher's home recently, two Clinton, Maine <br>police officers drove by her house on July 31, 1997.  They saw <br>McDonald there.  Aware of the restraining order and past occasions <br>on which Fletcher sought police help, the police entered her home, <br>despite her objections and her assertion that McDonald was not in <br>the house.  A fracas resulted during which Fletcher was arrested <br>and McDonald escaped.  McDonald turned himself in the next day.  No <br>charges were ever prosecuted against Fletcher. <br>  Fletcher then brought a federal civil rights action <br>against the officers, the Town, and the bail commissioner.  A <br>Magistrate Judge denied the defendants' motion for summary judgment <br>on the grounds of qualified immunity, and they appeal.  We affirm <br>in part and reverse in part, hold that the officers have qualified <br>immunity as to Counts I and II of the complaint, and find the <br>defendants have waived their appeal from the denial of immunity as <br>to Count III.  We vacate the Magistrate Judge's denial of summary <br>judgment as to the Town of Clinton, and remand for further <br>proceedings. <br> <br> <br> <br>                               I <br>  Fletcher filed suit against police officers Dean Bessey <br>and Todd Genest, bail commissioner William Cyr, and the Town of  <br>Clinton, Maine on May 15, 1998, alleging violations of 42 U.S.C. <br> 1983 and state tort and criminal laws.  Count I of the complaint <br>alleges violations of  1983 stemming from the officers' first <br>entry into her home and her subsequent arrest; Count II concerns <br>the officers' second entry into her home that night and "her <br>subsequent detention and interrogation."  Finally, Count III <br>alleges a  1983 violation stemming from the bail process.  <br>  The Magistrate Judge denied the motion for summary <br>judgment as to the officers and the Town, concluding that the <br>officers violated Fletcher's clearly established Fourth Amendment <br>rights in circumstances in which no reasonable officer could have <br>believed that his or her actions were not in violation of such <br>rights.  In concluding that there were no exigent circumstances <br>justifying the officers' actions, the Magistrate Judge relied on <br>the officers' "lack of haste" in going to Fletcher's home after <br>hearing that McDonald had been seen there earlier, the lack of a <br>history of physical violence in the pair's relationship, and the <br>fact that the police "saw nothing to suggest Plaintiff was in <br>danger" that evening. <br>                               II <br>  We briefly address the question of appellate <br>jurisdiction.  Fletcher argues that this court is without <br>jurisdiction to hear the defendants' appeal, as that appeal is <br>"based on allegations of factual error by the court below."  <br>  The jurisdictional rules in this area are clear.  <br>Ordinarily, appeals from denials of summary judgment will not be <br>entertained.  See Buenrostro v. Collazo, 973 F.2d 39, 41 (1st Cir. <br>1992).  There is, however, a narrow exception for denials of <br>pretrial motions based on claims of qualified immunity.  See <br>Johnson v. Jones, 515 U.S. 304, 311-12 (1995).  Such denials are <br>reviewable "only to the extent that the qualified immunity defense <br>turns upon a 'purely legal' question."  Daz v. Daz Martnez, 112 <br>F.3d 1, 3 (1st Cir. 1997); see also Tang v. Rhode Island, 120 F.3d <br>325, 326 (1st Cir. 1997).  "[A] district court's pretrial rejection <br>of a qualified immunity defense is not immediately appealable to <br>the extent that it turns on either an issue of fact or an issue <br>perceived by the trial court to be an issue of fact."  Daz, 112 <br>F.3d at 3 (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st Cir. <br>1995)) (internal quotation marks omitted). <br>  Fletcher is correct that there would be no appellate <br>jurisdiction here if summary judgment were properly denied because <br>there were material facts in dispute.  Fletcher is also correct <br>that there are disputes of fact concerning many of the details of <br>the events in question.  But the Magistrate Judge clearly based his <br>decision on a determination that summary judgment was not available <br>as a matter of law.  See id. ("If the pretrial rejection of the <br>qualified immunity defense is based on a purely legal ground, such <br>as a finding that the conduct described by the plaintiff, assuming <br>it occurred, transgressed a clearly established right, then the <br>denial may be challenged through an interlocutory appeal.").  Our <br>independent review of the record shows that the disputed facts are <br>not material and that the issue of immunity may properly be decided <br>on the basis of the undisputed facts. <br>                              III <br>  The essentials of the event are undisputed.  We view the <br>facts in the light most favorable to Fletcher.  See Swain v. <br>Spinney, 117 F.3d 1, 8 (1st Cir. 1997). <br>  Before the night of July 31, 1997, Fletcher had called <br>the police for help with McDonald three separate times before she <br>obtained a restraining order.  On May 22, 1997, Fletcher called the <br>police and complained that McDonald was extremely angry, was <br>refusing to leave her home, and had thrown her kitten across her <br>apartment.  Officer Genest went to Fletcher's home, where Fletcher <br>told him that things were now under control.  A pastor from <br>Fletcher's church had arrived and McDonald had agreed to leave with <br>him.  The police left once McDonald did. <br>  About two weeks later, on June 6, 1997, Fletcher called <br>the police again.  She told the dispatcher that McDonald was drunk, <br>had refused to leave, and was stealing her property and threatening <br>to damage her car.  The dispatcher heard McDonald tell Fletcher to <br>hang up the phone and call someone to come pick him up; the <br>dispatcher urged Fletcher to stay on the line until officers <br>arrived.  The dispatcher heard an escalating argument and got <br>McDonald on the phone.  Officers Genest and Bessey arrived shortly <br>thereafter and found McDonald outside the home.  Despite their <br>orders not to do so and their warnings of arrest if he persisted, <br>McDonald tried to go back into Fletcher's home.  McDonald was <br>arrested and charged with criminal trespass.  McDonald was later <br>released on bail on the condition that he not have any direct or <br>indirect contact with Fletcher or her home. <br>  On July 16, 1997, Fletcher again called the police, this <br>time from the home of Clinton Police Sergeant Steve Trahan (or his <br>mother).  Fletcher said that her "ex-boyfriend" McDonald was in her <br>home in violation of his bail conditions and that she had been <br>forced to flee to call for help.  Fletcher told the police that <br>McDonald had been at her home when she returned from work, that <br>they had argued, and that Fletcher had fled to her car.  She was <br>talking to McDonald's ex-girlfriend (who had called to speak with <br>McDonald) on her cordless phone.  McDonald had been "screaming in <br>the background."  When Fletcher asked McDonald's ex-girlfriend to <br>call for help, McDonald had grabbed the phone away and thrown it <br>into a field.  Fletcher went for help and the ex-girlfriend called <br>the police.  Fletcher did not know Sergeant Trahan, but she had <br>seen a police car parked outside of the house and was "just taking <br>a chance hoping someone was there that could help [her]." <br>  Officers picked up Fletcher and took her home.  McDonald <br>was gone.  They saw that McDonald had damaged Fletcher's property, <br>and noted that her kitten's eye was swollen shut.  McDonald <br>telephoned Fletcher while the police were with her; he told her <br>that he was in Fairfield, Maine.  It was a ruse.  When the police <br>left to find him, McDonald appeared outside of Fletcher's house.  <br>Fletcher once again called the police.  McDonald was arrested later <br>that evening, his bail was revoked, and he was returned to jail.   <br>  The next day, July 17, Fletcher applied for an ex parte <br>temporary restraining order against McDonald in the state district <br>court.  Under Maine law at the time, temporary ex parte orders of <br>protection could be granted on a showing of "[i]mmediate and <br>present danger of physical abuse to the plaintiff."  Me. Rev. Stat. <br>Ann. tit. 19,  765(2).  In her application, Fletcher swore that <br>she was "in immediate and present danger of abuse by the <br>defendant."  She described the previous day's events -- the same <br>events she had described to the police the night before -- and <br>reported that she had "called for help on previous occassions [sic] <br>because [she] was freightened [sic] for [her] safety and for the <br>safety of [her] property."  Fletcher also told the court that <br>McDonald had "threatened [her] on several occassions, [sic] that if <br>I leave him he will wreck my car and my belongings."  The court <br>issued an order that prohibited McDonald from, among other things, <br>entering Fletcher's home and having any contact, direct or <br>indirect, with her.  The order was served on McDonald in jail.  A <br>copy was also delivered to the Clinton Police Department, as the <br>agency responsible for enforcing the order. <br>  On the evening of July 31, 1997, the date of the <br>incidents in question, Officers Genest and Bessey went on duty at <br>6 p.m.  Shortly before going on duty, Trahan informed Genest that <br>he had seen McDonald at Fletcher's home, when Fletcher was not <br>there, earlier in the day or the day before.  Both Genest and <br>Bessey were aware of the history of problems between Fletcher and <br>McDonald.  Genest had responded to Fletcher's May 22 and June 6 <br>calls for help, and Bessey had responded to the June 6 call.  <br>Additionally, both officers were aware of the events of July 16 and <br>knew that Fletcher had obtained a restraining order against <br>McDonald.  Before leaving the station, Genest called the Kennebec <br>County Sheriff's Office and was informed that the restraining order <br>was still in effect. <br>  At approximately 9 p.m. that evening, the officers drove <br>past Fletcher's home.  As they drove by, they both saw a man they <br>recognized as McDonald through a first floor window.  He was <br>standing in Fletcher's bedroom and talking to her. <br>  The officers did not see any sign of conflict between <br>Fletcher and McDonald.  Their prior experiences with McDonald as <br>well as their knowledge that a protective order existed made them <br>concerned for Fletcher's safety, however.  As Genest stated in his <br>affidavit, "[i]t was apparent to me that the situation had <br>escalated to the point that Ms. Fletcher feared for her safety to <br>the point of repeatedly calling for police assistance and obtaining <br>a court order prohibiting Mr. McDonald from having any contact with <br>her or her property."  Bessey reacted similarly, concluding that <br>Fletcher's life was in danger because of "Mr. McDonald's violent <br>nature," "Mr. McDonald's drinking, her calling us, calling the <br>county, [and] her putting a protection order on him."  The officers <br>turned their cruiser around and stopped briefly to contact Trahan.  <br>Trahan once again confirmed that the restraining order was in <br>effect and told them to pick up McDonald and bring him in.   <br>  On returning to Fletcher's home, Bessey knocked on the <br>front door while Genest went to the window where they had seen <br>Fletcher and McDonald earlier "to ensure that McDonald did not harm <br>Fletcher" and to "watch McDonald in case he tried to flee."  When <br>Genest approached the window, he saw Fletcher in her bedroom.  <br>Although Bessey's knocking was audible in the bedroom and although <br>Fletcher had seen the police cruiser outside, she ignored the <br>knocking at her door.  Speaking through her window, Genest told <br>Fletcher that he was from the Police Department, that he knew <br>McDonald was in the home, and that she should go to the door.  He <br>said that he would arrest her if she did not.  She denied that <br>McDonald was there. <br>  Genest and Bessey say that Fletcher eventually went to <br>the door and opened it.  Fletcher, in contrast, says that she never <br>opened the door, but that the officers let themselves in through <br>the front door, which might have been locked.  We will take <br>Fletcher's version of events. <br>  Once inside, the officers saw Fletcher and told her that <br>they were looking for McDonald and knew he was in her home.  <br>Fletcher denied that McDonald was there, said that a friend of hers <br>was in the bathroom, and ordered the officers to leave.  McDonald <br>spoke from behind the bathroom door, saying he was someone else.  <br>The ploy backfired.  The officers immediately recognized McDonald's <br>distinctive accent. <br>  Bessey observed that Fletcher "acted kind of shook up and <br>wanted us to leave" and that it seemed as though "Mr. McDonald was <br>directing Ms. Fletcher to request that we leave the residence."  <br>Genest knew that McDonald had interfered with Fletcher's attempts <br>to get help on a previous occasion and said that he "did not know <br>if that was the case in this situation, or whether Mr. McDonald had <br>threatened to harm Ms. Fletcher if she told us he was in the <br>apartment and had him arrested." <br>  The officers decided to go further inside the house.  As <br>they moved toward the bathroom, Fletcher picked up the phone and <br>dialed 911.  Genest took the phone from her hand, told the <br>dispatcher who he was, and explained that no assistance was needed <br>at that time.  He hung up the phone and the officers went to the <br>bathroom door.  Fletcher stayed close to the officers, demanding <br>they leave and insisting that they had no legal right to be there.  <br>Fletcher was warned that she would be arrested if she did not stop <br>interfering with their efforts to reach McDonald.  She continued <br>and Genest handcuffed her and placed her in the bedroom. <br>  The officers eventually got the bathroom door open.  <br>After a struggle with McDonald, the officers sprayed pepper spray <br>into the bathroom and McDonald slammed the door closed, leaving the <br>officers outside.  When the officers opened the door after waiting <br>for the pepper spray to clear, they found McDonald had escaped out <br>the bathroom window.  Both officers left the house to pursue <br>McDonald. <br>  As Genest left the house, he heard the door close and <br>lock behind him.  Fearing that McDonald had reentered the home and <br>knowing that Fletcher was vulnerable in her handcuffed position, <br>Genest returned to the front door, found it locked, and shouted a <br>demand that the door be opened.  Fletcher did not hear Genest's <br>demand.  When there was no response, Genest kicked the door in.  He <br>discovered that Fletcher had slipped out of her handcuffs and that <br>she was the one who had locked the front door.  She had again <br>called 911, and Genest again removed the phone from her hand and <br>spoke to the dispatcher.  Genest then handcuffed Fletcher and took <br>her to the police cruiser. <br>  Meanwhile, Bessey had not found McDonald.  Genest radioed <br>for assistance and the officers who reported to the scene proceeded <br>to search for McDonald.  They did not find him. <br>  Fletcher was eventually taken by Genest and Bessey to the <br>police station, where she waited until the bail commissioner <br>arrived.  Fletcher was released on bail that evening.  No charges <br>were ever prosecuted against Fletcher.  McDonald turned himself in <br>the next day, and was released on bail.  He eventually pled guilty <br>to violation of the protective order. <br>                               IV <br>  We review the grant or denial of summary judgment de <br>novo.  See Swain, 117 F.3d at 5.  Qualified immunity analysis is <br>two-pronged.  "First, the court must establish whether the <br>constitutional right asserted by the plaintiff was 'clearly <br>established' at the time of the alleged violation."  St. Hilaire v. <br>City of Laconia, 71 F.3d 20, 24 (1st Cir. 1995).  Under this prong, <br>"[t]he contours of the right must be sufficiently clear that a <br>reasonable official would understand that what he is doing violates <br>that right."  Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 <br>(1987)) (internal quotation marks omitted).  Second, the court must <br>ascertain "whether a reasonable official situated in the same <br>circumstances should have understood that the challenged conduct <br>violated that established right."  Id. (quoting Hegarty v. Somerset <br>County, 53 F.3d 1367, 1373 (1st Cir. 1995)) (internal quotation <br>marks omitted).  This is an objective inquiry that involves asking <br>"whether the agents acted reasonably under settled law in the <br>circumstances, not whether another reasonable, or more reasonable, <br>interpretation of the events can be constructed . . . after the <br>fact."  Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam).  <br>We analyze this case under the second prong. <br>A.  The Warrantless Entry Claims <br>  Fletcher claims that both the initial entry into her home <br>and the reentry after McDonald had escaped through the bathroom <br>window violated her Fourth Amendment rights.  Both entries were <br>without warrant and we evaluate these claims together. <br>  It is clearly established that a search warrant is <br>ordinarily required to enter the home of a third person to arrest <br>an individual who is believed to be inside the home.  See Steagald <br>v. United States, 451 U.S. 204, 216 (1981).  This rule applies <br>regardless of the existence of an arrest warrant.  See id.  Just as <br>clearly established, however, is the "exigent circumstances" <br>exception to this rule.  See Joyce v. Town of Tewksbury, 112 F.3d <br>19, 21-22 (1st Cir. 1997) (en banc).  Exigent circumstances exist <br>where "there is such a compelling necessity for immediate action as <br>will not brook the delay of obtaining a warrant."  United States v. <br>Almonte, 952 F.2d 20, 22 (1st Cir. 1991) (quoting United States v. <br>Adams, 621 F.2d 41, 44 (1st Cir. 1980)) (internal quotation marks <br>omitted).   <br>  There are four recognized categories of exigent <br>circumstance: "(1) 'hot pursuit' of a fleeing felon; (2) threatened <br>destruction of evidence inside a residence before a warrant can be <br>obtained; (3) a risk that the suspect may escape from the residence <br>undetected; or (4) a threat, posed by a suspect, to the lives or <br>safety of the public, the police officers, or to herself."  <br>Hegarty, 53 F.3d at 1374.  The defendants say that "safety" <br>exigencies justified their warrantless entries into Fletcher's <br>home.  <br>  An officer's reasonable belief that the delay needed to <br>obtain a warrant would pose "a threat to police or the public <br>safety" is sufficient to create exigent circumstances.  United <br>States v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989) (internal <br>quotation marks and citation omitted).  "[T]he Supreme Court's <br>standard of reasonableness is comparatively generous to the police <br>in cases where potential danger, emergency conditions or other <br>exigent circumstances are present."  Roy v. Inhabitants of <br>Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).  Fletcher, ably <br>represented, argues that the police were required to obtain a <br>warrant because it was unreasonable to conclude that her safety was <br>threatened. <br>  To the extent that the decision below rested on the <br>ground that the officers did not see McDonald being violent toward <br>Fletcher, that ground alone is inadequate to deny immunity.  <br>Evidence of extreme danger in the form of shots fired, screaming, <br>or blood is not required for there to be some reason to believe <br>that a safety risk exists.  See Tierney v. Davidson, 133 F.3d 189, <br>198 (2d Cir. 1998) ("[T]he absence of blood, overturned furniture <br>or other signs of tumult" did not render the officer's belief that <br>danger existed unreasonable and did not require the officer "to <br>withdraw and go about other business, or stand watch outside the <br>premises listening for the sounds of splintering furniture."); <br>United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) ("We do <br>not think that the police must stand outside an apartment, despite <br>legitimate concerns about the welfare of the occupant, unless they <br>can hear screams.  Doubtless outcries would justify entry, but they <br>are not essential." (citation omitted)). <br>  On the spot reasonable judgments by officers about risks <br>and dangers are protected.  Deference to those judgments may be <br>particularly warranted in domestic disputes.  In those disputes, <br>violence may be lurking and explode with little warning.  Domestic <br>violence victims may be intimidated or suffer from a dependence <br>inherent in the abusive relationship.  The signs of danger may be <br>masked.  See generally State v. Greene, 784 P.2d 257, 259 (Ariz. <br>1989) (en banc) (noting that domestic violence calls "commonly <br>involve dangerous situations in which the possibility for physical <br>harm or damage escalates rapidly"); S. Rep. No. 102-197, at 38 <br>(1991) (noting that "fear of retaliation and the lingering stigma <br>of sex crimes and violence in the home" mean that "[b]oth literally <br>and figuratively, these crimes remain hidden from public view"); <br>Charles Patrick Ewing, Battered Women Who Kill 19 (1987) (noting <br>that battered women often form a "traumatic bond" with their <br>abusers, which leads them to become "extremely dependent" on their <br>abuser and makes them "more incapable of fending for themselves"); <br>Bureau of Justice Statistics, U.S. Dep't of Justice, Rep. No. NCJ- <br>167237, Violence by Intimates at v (1998) (noting that one of the <br>"most common reasons given by victims for not contacting the <br>police" was that they "feared retaliation").  Maine has had many <br>episodes of domestic disputes turning violent and even fatal.  See <br>Maine Coalition for Family Crisis Services, Domestic Abuse in <br>Maine: Data Project 1990-1995, at 26 (n.d.) (finding that 51% of <br>all homicides in Maine from 1990-1995 were "domestic violence <br>related"). <br>  Police must often make balanced choices.  Domestic <br>violence situations require police to make particularly delicate <br>and difficult judgments quickly.  See Tierney, 133 F.3d at 197 <br>("Courts have recognized the combustible nature of domestic <br>disputes, and have accorded great latitude to an officer's belief <br>that warrantless entry was justified by exigent circumstances when <br>the officer had substantial reason to believe that one of the <br>parties to the dispute was in danger.").  At the same time, <br>officers must respect basic freedoms guaranteed by the Fourth <br>Amendment.  A person's home is her sanctuary, not ordinarily to be <br>entered by the police unless that entry is authorized by a warrant.  <br>See Payton v. New York, 445 U.S. 573, 585-87 (1980).  This is true, <br>even when the officers want to enter the home in order to arrest a <br>third person whom they believe is there.  See Steagald, 451 U.S. <br>at 216.  Victims of domestic violence do not give up their <br>constitutional rights or the sanctity of their homes as the price <br>for obtaining a restraining order against an abuser. <br>  The balanced choice the officers must make is protected <br>by qualified immunity if it is an objectively reasonable one.  The <br>officers here chose not to seek a warrant, which inevitably would <br>have caused delay.  If their choice not to delay but to enter <br>Fletcher's home was an objectively reasonable one, then the <br>officers receive the protection of qualified immunity.  Such <br>immunity is given not only for the protection of the officers, but <br>also to protect victims of crime.  In the domestic violence <br>context, immunity is given so that officers will not have strong <br>incentives to do nothing when they believe a domestic abuse victim <br>is in danger.  Permitting suit against officers who have acted <br>reasonably when there is reason to fear would create exactly the <br>wrong incentives.  Indeed, if the officers had done nothing, and <br>Fletcher had been injured, they would have faced the threat of <br>suit.  In either event, their choice would be protected if it was <br>objectively reasonable in light of clearly settled law. <br>  Officers' decisions to enter a home to ensure the safety <br>of those believed to be at risk of domestic violence have been <br>found reasonable by other courts.  Cf. United States v. Gwinn, 46 <br>F. Supp. 2d 479, 482-83 (S.D. W. Va. 1999) (finding entry to be <br>reasonable, even though alleged abuser had been detained, because <br>alleged victim was crying and might have needed assistance); <br>Greene, 784 P.2d at 259 ("The call [to 911] itself creates a <br>sufficient indication that an exigency exists allowing the officer <br>to enter a dwelling if no circumstance indicates that entry is <br>unnecessary."); State v. Lynd, 771 P.2d 770, 773 (Wash. Ct. App. <br>1989) (concluding that entry was reasonable where there had been a <br>hang-up call to 911 and the husband, who was outside the house, <br>reported that he and his wife had been arguing). <br>  In this case, Fletcher's arguments -- that the officers' <br>belief that there was a threat to her safety was unreasonable -- do <br>have some weight.  The officers saw no violence occurring within <br>the home.  Fletcher clearly told the officers that she did not want <br>them in her home that night.  McDonald had not been physically <br>violent with Fletcher, Fletcher had not hesitated to call the <br>police when she felt in danger, and the officers saw no evidence of <br>violence.  Despite these facts, the officers intervened, and <br>Fletcher, who had sought the protection of the law, was the one <br>arrested.  But Fletcher's subjective view of the facts is not the <br>test.  We conclude that an objectively reasonable officer, facing <br>the circumstances that Genest and Bessey faced that evening, could <br>have concluded that both of the warrantless entries into Fletcher's <br>home were justified by the threat to Fletcher's safety.  <br>  It was reasonable to conclude that Fletcher was at risk.  <br>The sequence of events described earlier -- three calls to the <br>police, a protective order, McDonald's being jailed -- could easily <br>lead the officers to the conclusion that Fletcher was at risk on <br>the night of July 31, indeed at greater risk than she had been <br>previously.  There was good reason to believe that McDonald might <br>well be vindictive and try to hurt Fletcher for having him arrested <br>on July 16 and sending him back to jail.  Fletcher's own testimony <br>was that she sought the protective order because she felt that the <br>situation might escalate dangerously. <br>    I was afraid that he would come back to my apartment when <br>  he did get out of jail and be very, very upset that they <br>  had arrested him and tried [sic] to blame it on me. . . . <br>  I was afraid that he could hurt me because -- he had <br>  never hurt me, but he had hurt people in the past and he <br>  had thrown my kittens, so, yes, I was afraid. <br> <br>  Fletcher's fear was well-founded.  Arrests, protective <br>orders, and other attempts to break the cycle of violence often <br>increase the short-term danger to abuse victims.  See Women and <br>Violence: Hearings before the Comm. on the Judiciary, U.S. Senate, <br>on Legislation to Reduce the Growing Problem of Violent Crime <br>Against Women, 101st Cong. 2d 145 (1991) (statement of Susan Kelly- <br>Dreiss, Executive Director, Pennsylvania Coalition Against Domestic <br>Violence); Ewing, supra, at 13 ("Violence against battered women <br>often escalates any time they attempt to take any control over <br>their lives or the battering relationship."); Lenore E. Walker et <br>al., Beyond the Juror's Ken: Battered Women, 7 Vt. L. Rev. 1, 12 <br>(1982) ("One of the most dangerous times for both partners is at <br>the point, or threat, of separation.").  The officers also knew <br>that McDonald was in violation of both the protective order and his <br>bail conditions.  His defiance of court orders, at the risk of <br>going back to jail, suggested a man out of control or bent on <br>revenge.  <br>  Fletcher's refusal to admit the officers and her denial <br>that McDonald was in the home did not make the officers' conclusion <br>that her safety was threatened unreasonable.  Instead of opening <br>the door and telling the officers that McDonald was there with her <br>permission and was not threatening her safety, Fletcher ignored the <br>knocking at her door and later lied about McDonald's presence.  <br>This gave them additional reason to fear for her safety, given <br>their knowledge that McDonald had previously interfered with <br>Fletcher's efforts to contact the police.  In domestic violence <br>situations, officers may reasonably consider whether the victim is <br>acting out of fear or intimidation, or out of some desire to <br>protect the abuser, both common syndromes.  See United States v. <br>Bartelho, 71 F.3d 436, 438 (1st Cir. 1995) (noting that officers <br>are often trained not to take the statements of abuse victims at <br>face value, but instead to consider whether the victims are acting <br>out of fear).  Indeed, one commentator has estimated that domestic <br>violence victims are uncooperative in eighty to ninety percent of <br>attempted criminal prosecutions against their batterers.  See Lisa <br>Marie De Sanctis, Bridging the Gap Between the Rules of Evidence <br>and Justice for Victims of Domestic Violence, 8 Yale J.L. & <br>Feminism 359, 367-68 (1996).  This same commentator concluded that <br>victims often lie "to minimize the violence and protect the <br>batterer."  Id. at 392 n.197; see also Mary Ann Dutton, <br>Understanding Women's Responses to Domestic Violence: A <br>Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191, <br>1232-35 (1993).  Particularly given their knowledge of the prior <br>incidents between Fletcher and McDonald, the officers were not <br>required to accept Fletcher's statements.  Thus, the officers are <br>entitled to qualified immunity as to the first entry. <br>  The officers' second entry into Fletcher's home was also <br>justified by the exigencies of the situation.  When Genest entered <br>Fletcher's home the second time, he knew that someone had locked <br>him out.  It was reasonable for him to believe that McDonald might <br>have done so by reentering the home.  And he knew that if McDonald <br>had reentered the house, Fletcher would be vulnerable in her <br>handcuffed position.  Further, the situation had, at this point, <br>escalated, increasing the possibility that McDonald might engage in <br>violence. <br>  The Magistrate Judge, in denying summary judgment, found <br>that the officers' "lack of haste" meant that exigent circumstances <br>did not exist to justify the entries.  In particular, he relied <br>upon the fact that the officers learned around 6 p.m. that McDonald <br>had been seen at Fletcher's home sometime in the last day or two, <br>but did not go by her house until approximately 9 p.m.  This <br>analysis ignores the fact that these officers did not themselves <br>have any information that McDonald was still at the house and, <br>thus, that Fletcher was in danger until they drove past her house <br>at 9 p.m.  At that point, they delayed only briefly to confirm that <br>the protective order was in effect and to receive instructions from <br>Trahan as to how they should proceed.  The information that they <br>received before they went on duty that evening -- that McDonald had <br>been seen in Fletcher's home, when she was not there, at some time <br>during the last two days -- did not create an exigency.  The <br>exigent circumstances arose when Genest and Bessey saw McDonald in <br>the house with Fletcher, and they did not delay unreasonably in <br>acting to address the safety risk they perceived at that time.  See <br>United States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988) ("An <br>agent does not avoid or delay applying for a warrant if he or she <br>is conducting an investigation spurred by suspicion, but without, <br>in her reasonable judgment, sufficient evidence to establish <br>probable cause to support a warrant."). <br>  The officers are entitled to qualified immunity as to <br>both entries, and thus to dismissal of these claims in Count I and <br>Count II. <br>B.  The Warrantless Arrests <br>  Count I and Count II also allege that Fletcher's Fourth <br>Amendment rights were violated when Genest arrested her.  The gist <br>of the complaint seems to be that Genest lacked probable cause to <br>arrest Fletcher and to charge her with hindering apprehension and <br>escape.  This question is somewhat closer than the wrongful entry <br>claim.    <br>  The law in this area is also clear.  Warrantless arrests <br>are permissible when supported by probable cause.  See Rivera v. <br>Murphy, 979 F.2d 259, 263 (1st Cir. 1992).  In turn, "probable <br>cause exists when the facts and circumstances within [the police <br>officers'] knowledge and of which they had reasonably trustworthy <br>information were sufficient to warrant a prudent [person] in <br>believing that the [defendant] had committed or was committing an <br>offense."  Id. (quoting United States v. Figueroa, 818 F.2d 1020, <br>1023 (1st Cir. 1987)) (internal quotation marks omitted) <br>(alterations in original).  Again, we turn to the second prong of <br>the immunity analysis -- whether an objectively reasonable officer <br>would have found probable cause for the arrest. <br>  Police are afforded immunity "so long as the presence of <br>probable cause is at least arguable."  Floyd v. Farrell, 765 F.2d <br>1, 5 (1st Cir. 1985).  Under this standard, Genest's arrest of <br>Fletcher for hindering apprehension, while questionable, is not so <br>unreasonable as to deprive him of qualified immunity.  Fletcher's <br>conduct brought her within the literal terms of Maine's hindering <br>apprehension statute: <br>    1.  A person is guilty of hindering apprehension or <br>  prosecution if, with the intent to hinder, prevent or <br>  delay the discovery, apprehension, prosecution, <br>  conviction or punishment of another person for the <br>  commission of a crime, he: <br> <br>  A.  Harbors or conceals the other person; or <br> <br>  . . .  <br> <br>  E.  Obstructs by force, intimidation or deception anyone  <br>    from performing an act which might aid in the discovery, <br>  apprehension, prosecution or conviction of such <br>  person . . . .   <br>Me. Rev. Stat. Ann. tit. 17-A,  753.  Fletcher's own testimony is <br>that she lied to the officers and said McDonald was not in the <br>house or in the bathroom.  Her actions, therefore, fit within the <br>statutory language.  <br>  It is important to note that Fletcher's refusal to let <br>the officers into her house cannot serve as the justification for <br>her arrest.  Fletcher says that Genest threatened her with arrest <br>if she denied them access to the house so that they could arrest <br>McDonald.  If that were the justification for Fletcher's arrest, <br>that arrest would be in clear violation of the Fourth Amendment.  <br>That is not this case, however. <br>  Fletcher also complains that the officers lacked probable <br>cause to arrest her for escape, which requires that she "without <br>official permission . . . intentionally leaves official <br>custody . . . ."  Me. Rev. Stat. Ann. tit. 17-A,  755(1).  This <br>charge was based on Fletcher's slipping out of the handcuffs and <br>locking the door behind the officers.  While it is unclear <br>precisely when Genest charged Fletcher with the crime of escape, it <br>is clear that this charge was made sometime after Fletcher was <br>handcuffed for the second time.  But we need not consider whether <br>the officers had probable cause to arrest Fletcher for escape.  In <br>handcuffing Fletcher for the second time, Genest was doing no more <br>than bringing her back into lawful custody.  Her initial arrest for <br>hindering apprehension was supported by probable cause and Fletcher <br>has not provided, nor have we found, any cases suggesting that a <br>later charge may in any way affect the lawfulness of the initial <br>arrest.  Cf. 1 Wayne R. LaFave & Jerold H. Israel, Criminal <br>Procedure  3.5, at 243 (1984) (stating generally that "the <br>lawfulness of the arrests should be determined upon the basis of <br>the facts at hand when they were made and not because of the <br>characterization employed"); Sheehy v. Town of Plymouth, No. 98- <br>2080, 1999 WL 685670, at *1 (1st Cir. Sept. 8, 1999).  The charge <br>of escape did not result in a violation of her clearly established <br>constitutional rights, and the officers are, therefore, protected <br>by qualified immunity.  <br>C.  The Bail Proceedings <br>  Count III of Fletcher's complaint alleges constitutional <br>violations stemming from the process by which her bail conditions <br>were determined.  The defendants have not challenged on appeal the <br>Magistrate Judge's denial of summary judgment on this Count.  <br>Defendants stated at oral argument that they did not consider the <br>Magistrate Judge to have issued a final ruling on this portion of <br>their motion for summary judgment because the opinion's legal <br>analysis focused almost entirely on the officers' qualified <br>immunity as to the claimed Fourth Amendment violations.  <br>Regardless, the Magistrate Judge clearly disposed of the summary <br>   judgment motion as to Count III, stating in his opinion that <br>"Defendants' Motion for Summary Judgment is hereby GRANTED as to <br>Counts IV through IX, and DENIED as to Counts I through III."  <br>Thus, the defendants have waived their right to appeal the denial <br>of qualified immunity as to Count III.  See United States v. Slade, <br>980 F.2d 27, 30 n.3 (1st Cir. 1992) ("[T]heories neither briefed <br>nor argued on appeal are deemed to have been waived."). <br>D.  The Municipal Defendant <br>  The Town of Clinton also appeals from the denial of <br>summary judgment.  The Town seems to assume that it either has <br>qualified immunity or gets the benefit of the individual officers' <br>qualified immunity.  The Magistrate Judge took a similar approach, <br>dismissing the Town's motion for summary judgment by relying on his <br>qualified immunity analysis.   <br>  Fletcher does not make a separate argument of lack of <br>jurisdiction over the Town's appeal.  If, of course, the denial of <br>summary judgment was based on immunity grounds, there would be <br>appellate jurisdiction.  But both the Magistrate and Town are wrong <br>to view this in immunity terms. <br>  To the extent there is a question as to whether we have <br>appellate jurisdiction, we exercise very limited pendent <br>jurisdiction.  Both the parties and the Magistrate Judge <br>demonstrate that the decision on the Town's motion for summary <br>judgment was "inextricably intertwined with that court's decision <br>to deny the individual defendants' qualified immunity motions."  <br>Swint v. Chambers County Comm'n, 514 U.S. 35, 51 (1995); see also <br>Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999).  <br>Because pendent jurisdiction is discouraged, see, e.g., Roque- <br>Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n.2 (1st Cir. 1991) <br>(noting that restrictions on pendent jurisdiction are "self- <br>imposed" and mean that "interlocutory review of a qualified <br>immunity order does not in and of itself confer jurisdiction over <br>other contested issues in the case"), we assume jurisdiction over <br>this claim only to vacate the Magistrate Judge's denial of the <br>Town's motion for summary judgment and remand for full <br>consideration of the issues raised by the Town's motion. <br>  The Magistrate Judge's resolution of the officers' <br>request for qualified immunity did not dispose of the Town's motion <br>for summary judgment.  A municipality's position in a  1983 suit <br>differs from that of the individual defendants in two key ways.  <br>First, the municipality enjoys no immunity from damages liability <br>under  1983.  See Owen v. City of Independence, 445 U.S. 622, 657 <br>(1980).  This means that it is "not impossible for a municipality <br>to be held liable for the actions of lower-level officers who are <br>themselves entitled to qualified immunity."  Joyce, 112 F.3d at 23.  <br>Second, a municipality cannot be held liable under a respondeat <br>superior theory.  See Monell v. Department of Social Servs., 436 <br>U.S. 658, 691 (1978).  This means that even if the individual <br>defendants are liable, the municipality may not be.  Something more <br>than liability on the part of the individual defendants must be <br>shown to impose liability on the municipality.  A plaintiff seeking <br>damages against the municipality must show that "the action that is <br>alleged to be unconstitutional implements or executes a policy <br>statement, ordinance, regulation, or decision officially adopted <br>and promulgated by [the municipality's] officers" or is "pursuant <br>to governmental 'custom' even though such a custom has not received <br>formal approval through the body's official decisionmaking <br>channels."  Id. at 690, 691.  If the allegation against the <br>municipality involves a failure to train, the plaintiff must put <br>forth evidence of a failure to train that amounts to "deliberate <br>indifference to the rights of persons with whom the police come <br>into contact."  City of Canton v. Harris, 489 U.S. 378, 388 (1989).  <br>Finally, plaintiffs must show a direct causal link between the <br>municipal action and the deprivation of federal rights.  See Board <br>of the County Comm'rs v. Brown, 520 U.S. 397, 404 (1997). <br>  For these reasons, motions for summary judgment brought <br>by individual defendants and municipalities often involve distinct <br>legal issues.  This is particularly true when, as in this case, the <br>resolution of the officers' claim for qualified immunity hinges on <br>a court's decision that the law was clearly established at the <br>time.  While a finding that the law was not clearly established may <br>foreclose municipal liability for failure to train, see Joyce, 112 <br>F.3d at 23, a finding that the law was clearly established does not <br>dispose of the municipality's motion for summary judgment.  Rather, <br>the court must go on to consider whether allegations of a municipal <br>policy or practice have been made that are sufficient to survive <br>summary judgment. <br>  The Magistrate Judge incorrectly conflated the issues <br>involved in the motion for summary judgment brought by the Town and <br>the individual defendants.  We vacate the denial of summary <br>judgment as to the Town and remand for consideration of the <br>remaining issues. <br>                               V <br>  Accordingly, we affirm in part and reverse in part the <br>Magistrate Judge's denial of the motion for summary judgment as to <br>the individual defendants, and instruct that Counts I and II <br>against the officers be dismissed.  We vacate the denial of the <br>Town's motion for summary judgment and remand for proceedings <br>consistent with this decision.</pre>

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